MARSH, District Judge.
The plaintiffs, Canon Redding,
Kenneth Redding, a minor by his parent and guardian, and Rick Ashby, citizens of Ohio, brought this action against William Medica, Andrew Lepczyk, Walter Long, Pittsburgh police officers, and the City of Pittsburgh, under the Civil Rights Act, §§ 1981, 1983 and 1985, 42 U.S.C., the First, Fourth, Sixth, Eighth, Thirteenth and Fourteenth Amendments to the Constitution of the United States, and under §§ 1331 and 1332, 28 U.S.C. Since damages in excess of $10,000 were alleged, a motion by the City to dismiss was denied, Redding v. Medica, 402 F. Supp. 1260 (W.D.Pa. 1975); in the event damages in excess of $10,000 were not proved by each plaintiff, it was held the court nevertheless had discretionary jurisdiction over the City as a pendent party to tort claims under state law. The court has jurisdiction under the Civil Rights Act by virtue of § 1343, 28 U.S.C. over the individual police officers, and has pendent jurisdiction over them for personal injuries in trespass under state law.
A jury trial was demanded by plaintiffs, but on the day of trial, both sides waived jury trial, and the court reluctantly was required to try the case non-jury. We say reluctantly because it appeared from the pretrial narratives, that the facts had to be found from the testimony of Canon and Kenneth Redding, the two black plaintiffs, and their white companions, Rosemary Moran and Karen Kirby, and the testimony of the three white defendant police officers plus three other white police officers. There were no disinterested witnesses listed by either side.
At the trial the testimony on each side seemed to be colored to some extent by self interest and interest in the outcome of the case; and as to certain issues, recollection of the parties seemed to be inaccurate.
Since the trial issues presented an oath against oath situation by interested parties and interested witnesses, we find that plaintiffs did not meet the burden of proving their case by a fair preponderance of the evidence.
In addition, Rick Ashby, who is a white male, on the day of the trial withdrew as a party plaintiff. Ashby did not appear at the trial nor was he subpoenaed by the remaining plaintiffs. His deposition was not offered in evidence by the plaintiffs. Rosemary Moran, who was accompanying the plaintiffs and was present at the trial and named as a witness in plaintiffs' pretrial narrative statement, was not called to testify. This failure by the plaintiffs to present the testimony of the two witnesses most likely to corroborate their testimony weakened their case in the eyes of the court as the fact finder. The court finds the testimony of the plaintiffs as to certain issues in the case was not credible.
It is the opinion of the court that judgment should be entered in favor of the defendants and against the plaintiffs, Canon Redding and Kenneth Redding by his parent and guardian.
Canon and Kenneth Redding, accompanied by Rick Ashby and their two female companions, arrived in Pittsburgh from Cleveland about 6:30 p.m. on June 20, 1975 to attend the rock concert. They had reservations at a Holiday Inn in Greentree. When the concert ended they walked toward the 2001 Club in search of a taxi to take them to the Inn. There was considerable pedestrian and vehicular traffic in the vicinity.
Canon Redding is 19 years of age, he is a former high school football player; stands 67 " and weighs 215 pounds. His companion Ashby, also 19 years of age, played football with Canon, and stands 5'11" and weighs 170 pounds. Kenneth is 18 years old (17 at the time of the incident). He is a well developed lad; his height and weight were not elicited.
The following facts were stipulated by the parties:
"Plaintiffs Cannon (sic) Redding, Kenneth Redding, and Rick Ashby were leaving a rock concert at Three Rivers Stadium in Pittsburgh about 12:45 A.M. on June 21, 1975.
In the vicinity of the 2001 Club on Robinson Street an incident involving the three above plaintiffs and the defendant police officers occurred which resulted in the arrest of all three plaintiffs.