The opinion of the court was delivered by: DITTER
I. Introduction and Factual Background
Plaintiff filed this civil rights action against the Township of Warminster, Pennsylvania, its chief of police and various named and unnamed police officers, alleging their responsibility for his unconstitutional arrest, detention and beating. The complaint, as amended, rests on 42 U.S.C. § 1983 and the Fourth and Eighth Amendments as applied to the states through the Fourteenth Amendment, with this court's jurisdiction based on 28 U.S.C. § 1343(3) & (4) as to the individual defendants and 28 U.S.C. § 1331 as to the township. Plaintiff also seeks to invoke this court's pendent jurisdiction over various state law claims against these defendants. Presently before the court are motions on behalf of all the defendants, pursuant to Rule 12(b) (1) and (6), to dismiss the complaint for lack of subject matter jurisdiction and/or failure to state a claim upon which relief can be granted.
The essence of the complaint against Louis J. Mercadante, a Warminster Township police officer, is that he violated Pitrone's federally protected rights by an unjustifiable arrest and physical abuse. The allegations against defendants Thomas McMahon, John Langdon, and certain unidentified Warminster police officers are that they observed Mercadante beating plaintiff, took no action to stop the beating, and, in fact, encouraged Mercadante to continue.
The Township's and Police Chief Kelley's liability is premised on the allegation that they either knew or had reason to know on the basis of prior complaints to both Kelley's office and the Federal Bureau of Investigation that the officers involved in this incident were prone to act with "excessive force and zeal . . . [and] would so act upon even the slightest provocation."
In addition, the complaint also seems to base the township's liability on theories of negligence (in failing to establish and enforce guidelines for the use of deadly force)
and respondeat superior.
Plaintiff seeks costs, injunctive relief against the township
and compensatory and punitive damages against all the 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).
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.
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, ...