II. The Individual Defendants
The primary thrust of the individual defendants' arguments in support of their motion to dismiss both on the grounds of lack of subject matter jurisdiction and failure to state a claim is that the complaint lacks sufficient specificity. There is no question that "in this circuit, plaintiffs in civil rights cases are required to plead facts with specificity," Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976), and that broad conclusory allegations of constitutional deprivations will not suffice. Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.) cert. denied 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970); Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967). However, when tested by the specificity requirement imposed by the Rotolo-Kaufman-Negrich line of cases, the complaint herein easily passes muster against Mercadante, Langdon, McMahon, Kelley and the unidentified officers at the scene of the altercation.
Kelley makes the additional argument that his liability cannot be predicated on the doctrine of respondeat superior. I agree. Milton v. Nelson, 527 F.2d 1158 (9th Cir. 1976); Bracey v. Grenoble, 494 F.2d 566 (3d Cir. 1974); Johnson v. Glick, 481 F.2d 1028 (2d Cir.) cert. denied sub nom. Employee-Officer John, # 1765 Badge Number v. Johnson, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973); Padover v. Gimbel Brothers, Inc., 412 F. Supp. 920 (E.D. Pa. 1976). But the complaint here asserts that Kelley knew or had reason to know beforehand of the violent propensities and overzealousness of the officers involved in this incident, yet took no remedial action. This is a sufficient allegation of personal culpability on Kelley's part to withstand a motion to dismiss. Compare Bracey v. Grenoble, supra, 494 F.2d at 571; Curtis v. Everette, 489 F.2d 516, 521 (3d Cir. 1973), cert. denied sub nom. Smith v. Curtis, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974); and Johnson v. Glick, supra, 481 F.2d at 1034 with Wright v. McMann, 460 F.2d 126, 134-35 (2d Cir.), cert. denied 409 U.S. 885, 93 S. Ct. 115, 34 L. Ed. 2d 141 (1972), and Moon v. Winfield, 368 F. Supp. 843, 844-45 (N.D. Ill. 1973); see also Judge Huyett's excellent discussion of the personal involvement issue in Fialkowski v. Shapp, 405 F. Supp. 946, 949-54 (E.D. Pa. 1975).
III. Warminster Township
It is also clear that the motion to dismiss on behalf of Warminster Township must be granted insofar as the complaint is based on Section 1983 since the township is not a "person" within the meaning of that statute. City of Kenosha v. Bruno, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973); Moor v. County of Alameda, 411 U.S. 693, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). However, jurisdiction over the township is also asserted under the general federal question statute, 28 U.S.C. § 1331, and since the requisite amount in controversy has been alleged,
I must face the merits of this contention.
Two questions are involved: (1) Is there jurisdiction over the municipality pursuant to Section 1331? and (2) Does the complaint state a cause of action? The notion that a civil rights action may be maintained against a municipality in federal court pursuant to 28 U.S.C. § 1331 despite the fact that the municipality is not a "person" within the meaning of 42 U.S.C. § 1983, seems to have stemmed from certain dicta in City of Kenosha v. Bruno, supra. In that case, after holding that a municipality is not a "person" for Section 1983 purposes regardless of the nature of the relief sought, the Supreme Court noted that the complaint had also asserted jurisdiction under 28 U.S.C. § 1331. Since the lower court had not determined whether jurisdiction over the municipalities was properly laid under Section 1331, the court merely remanded the case to the district court for consideration of that issue, without in any way intimating what the appropriate disposition should be.
Drawing from this relatively benign language,
several federal courts have ruled that municipalities may not be dismissed from civil rights cases where Section 1331 is pleaded as a basis of jurisdiction. E.g. Brault v. Town of Milton, 527 F.2d 730, 734 (2d Cir. 1975) (panel) rev'd on other grounds on reconsideration en banc, id. at 736; Skehan v. Board of Trustees of Bloomsburg State College, 501 F.2d 31, 44 (3d Cir. 1974) vacated, 421 U.S. 983, 95 S. Ct. 1986, 44 L. Ed. 2d 474 (1975) on remand, slip op. filed June 21, 1976 (en banc); Patterson v. City of Chester, 389 F. Supp. 1093, 1095-96 (E.D. Pa. 1975); Maybanks v. Ingraham, 378 F. Supp. 913, 914-15 (E.D. Pa. 1974); Dahl v. City of Palo Alto, supra, 372 F. Supp. at 649-51; see Rotolo v. Borough of Charleroi, supra, 532 F.2d at 922; United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799, 801-02 (5th Cir. 1974).
In one sense, of course, these decisions are clearly correct; that is, given the requisite amount in controversy and a complaint alleging a claim "arising under, inter alia, the Constitution," Section 1331 by its terms grants the district courts jurisdiction over a municipality or anybody else. Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946); see Brault v. Town of Milton, supra, 527 F.2d at 736 n. 1. But Section 1331 is merely a jurisdictional statute and provides no substantive basis for relief. See Gresham v. City of Chicago, 405 F. Supp. 410, 412 (N.D. Ill. 1975); Jamison v. McCurrie, 388 F. Supp. 990, 991-92 (N.D. Ill. 1975); Perry v. Linke, 394 F. Supp. 323, 325 (N.D. Ohio 1974).
Because the township is not a person for Section 1983 purposes the only possible substantive basis for relief against it would be through the implication of a private cause of action directly from the Fourteenth Amendment. Few of the cases cited above, and, in particular, none emanating from the Court of Appeals for this Circuit, have specifically addressed the Fourteenth Amendment cause of action question.
Cf. Roach v. Kligman, 412 F. Supp. 521 (E.D. Pa. 1976). Most of those courts which have considered the question and concluded that the Fourteenth Amendment provides a private cause action against municipalities based their holdings on Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). See Brault, Patterson, and Maybanks, supra. With deference to these courts, I do not believe that the rationale of Bivens can be extended to support a cause of action against a municipality based directly on the Fourteenth Amendment.
In Bivens the court found a cause of action based on the Fourth Amendment in a situation where, absent the implication of such relief, the plaintiff would have had no federal
remedy for the violation of a clearly established federal constitutional right. This anomaly resulted from the combined facts that Section 1983 does not apply to actions under color of federal law and that at the time Bivens arose, the Federal Tort Claims Act did not provide a remedy against the United States for the wrongful acts of its law enforcement officers.
The case for implication of a private cause of action against a municipality under the Fourteenth Amendment is significantly less compelling. See Graham, supra, 405 F. Supp. at 412.
First of all, unlike the situation in Bivens, the plaintiff here is not without remedy absent the implication of a constitutional cause of action since he unquestionably may seek Section 1983 relief against the individual police officers. A second and more important factor distinguishing this case from Bivens is that here Congress has spoken; the legislative history of Section 1983 as described in Monroe, Moor, and Bruno, supra, makes it clear that Congress did not want municipalities to be subjected to damage suits for civil rights violations. Thus, one of the major underpinnings of Bivens is missing. As construed in the Supreme Court cases just cited, Section 1983 amounts to "an explicit congressional declaration that persons injured by a [municipality's] violation of the [Fourteenth Amendment] may not recover money damages against [it]." The fact that in Section 1983 Congress did provide a federal remedy against individuals who commit civil rights violations also seems to satisfy the requirement of "another remedy, equally effective in the view of Congress," which the Bivens court indicated would weigh against implying a cause of action directly from the Constitution.
403 U.S. at 397, 91 S. Ct. at 2005. See Jamison, supra, 388 F. Supp. at 991-92; Perry, supra, 394 F. Supp. at 326.
A third factor weighing against the implication of a Fourteenth Amendment cause of action against municipalities is that where the plaintiff in a conventional civil rights action is merely seeking declaratory or injunctive relief it will generally make little difference whether the named defendant is the governmental entity itself
or the appropriate governmental official responsible for carrying out the challenged activity.
Only where the plaintiff seeks damages does the presence or absence of the municipality in the case make any significant difference. In that situation being able to sue the municipality would usually assure the plaintiff of at least one party capable of satisfying a substantial monetary judgment should he prevail at trial.
See Moor, supra 411 U.S. at 700, 93 S. Ct. at 1791. But the possibility of a monetary recovery against the municipality, which is the practical basis for the plaintiff's desire to name it as a defendant, is also the very reason why Congress would not (and indeed believed it could not) include municipalities within Section 1983 and why the Supreme Court in Monroe v. Pape, supra, held that Congress could not have intended the word "person" in that statute to encompass municipalities.
In addition to relying on Bivens, at least one court has advanced a second rationale in support of a direct Fourteenth Amendment cause of action against municipalities. Drawing from the remarks of Senator Thurmon during the floor debate on Section 1983, the court in Dahl,17 supra, suggested that what Congress was really concerned about in excluding municipalities from Section 1983 was the absence of a required amount in controversy in its jurisdictional counterpart, now 28 U.S.C. § 1343, thus leaving open the possibility that municipalities might be subject to suit in federal court on the most petty of claims. 372 F. Supp. at 651. The problem with this reasoning is that as the Supreme Court pointed out in Moor, supra, 411 U.S. at 708, 93 S. Ct. at 1795, the primary reason for excluding municipalities from Section 1983 was "legislative concern as to Congress' constitutional power to impose liability on political subdivisions of the States." Whether this concern was justified is not important. Id. at 709, 93 S. Ct. at 1795. Rather, the important thing is that Congress' exclusion of municipalities on this basis could not have depended upon the amount of the claim involved.
Furthermore, to the extent that Congress was also concerned that municipalities not be subjected to crushing liabilities which might threaten their very existence, see Note 89 Harv. L. Rev. 922, 948 & n. 139 (1976), limiting damage suits to those claiming over $10,000. would certainly not further the congressional goal.
Finally, there is the Supreme Court's recent decision in Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276, 44 U.S.L.W. 4988 (1976). Although that case did not specifically deal with the question under consideration here,
the Court's analysis of the related problem of "pendent party" jurisdiction is instructive. In holding that the district courts may not exercise pendent jurisdiction over a county on a state law claim factually related to a Section 1983 claim against county officials, the court relied heavily on Congress' exclusion of state governmental subdivisions from the reach of that statute.
[The] question whether jurisdiction over the instant lawsuit extends not only to a related state law claim, but to the defendant against whom that claim is made, turns initially not on the general contours of the language in Art. III, i.e., "Cases . . . arising under," but upon the deductions which may be drawn from congressional statutes as to whether Congress wanted to grant this sort of jurisdiction to federal courts. Parties such as counties whom Congress excluded from liability in § 1983, and therefore by reference in the grant of jurisdiction under § 1343(3), can argue with a great deal of force that the scope of the "civil action" over which the district courts have been given statutory jurisdiction should not be so broadly read as to bring them back within that power merely because the facts also give rise to an ordinary civil action against them under state law.