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MILBURN v. GIRARD

March 30, 1977

CLIFFORD MILBURN
v.
STEVEN GIRARD, number 7507, Individually and as police officer of the City of Philadelphia; DONALD GUY, number 4118, individually and as police officer of the City of Philadelphia; JOSEPH O'NEILL, individually and as Police Commissioner of the City of Philadelphia; FRANK L. RIZZO, individually and as Mayor of the City of Philadelphia; and CITY OF PHILADELPHIA.



The opinion of the court was delivered by: LUONGO

 This action is brought pursuant to 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, and the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. Jurisdiction is founded on 28 U.S.C. §§ 1331 and 1343(1)(2)(3)(4) and the aforementioned statutory and Constitutional provisions. Plaintiff further invokes the pendent jurisdiction of this Court to consider claims arising under state law.

 Many of the issues in these cases have been disposed of in the opinion filed today in Jones v. McElroy, Civil No. 76-1532, and Zuber v. Jones, Civil No. 76-3542, 429 F. Supp. 848. Only issues raised by defendants' motions in these cases and not disposed of in that opinion will be discussed herein.

 I. The Suits.

 A. Milburn v. Girard, Civil No. 75-3322

 In Milburn, the defendants are police officers Girard and Guy, the City of Philadelphia, its Mayor, Frank L. Rizzo, and Police Commissioner Joseph O'Neill. The complaint alleges: On November 19, 1974, defendant police officers questioned plaintiff, Clifford Milburn, regarding ownership of the automobile alongside which he was standing. When Milburn reached into a leather pouch for identification and proof of ownership, officer Girard also reached into the pouch, explaining that he was searching for a gun. After "roughly [frisking]" him, Girard began to beat the protesting Milburn with a blackjack, stating, "I'm going to get me a nigger tonight" (Complaint paras. 15-16). Police officer Guy joined in beating Milburn, who sustained severe injuries. Milburn was then placed in a police van. Money was taken from him and was never returned. Milburn was charged with theft, receiving stolen property, unauthorized use of an automobile, assault, and aggravated assault. The theft charge was dismissed at the request of the Commonwealth. Milburn was acquitted of the other charges at trial.

 Milburn alleges that, without provocation, officers Girard and Guy acted "individually and in concert, agreement, and conspiracy with each other" to "unlawfully, maliciously, and intentionally" deprive him of his rights (Complaint para. 22). The claims against the City, Rizzo and O'Neill are based on vicarious liability and on their own negligence, as stated in paragraph 25 of the complaint:

 
"Defendants O'Neill, Rizzo and City of Philadelphia, by their negligence in failing to adequately train and supervise the individual police officers, defendants herein, directly caused the injuries and harm suffered by the plaintiff."

 The defendants are sued "jointly and severally" for compensatory and punitive damages in excess of $10,000.

 Plaintiff's civil rights claims are asserted under three provisions of the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, and 1986, and under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. *fn1" The pendent state claims are for assault, battery, false imprisonment, and malicious prosecution.

 The City has moved to dismiss for lack of jurisdiction, Fed. R. Civ. P. 12(b)(1). In addition, the City, Rizzo, and O'Neill have moved to dismiss for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6).

 B. Lane v. Heil, Civil No. 76-2399

 Plaintiff, Captilda Lane, alleges: On the afternoon of March 7, 1976, while driving her automobile in Philadelphia, she was stopped by defendant police officers Heil and Granozio, who accused her of driving through a red light. Plaintiff was unable to produce her driver's license upon request. The officers then took her into custody, stating that they intended to hold her until her brother, who had committed a number of traffic violations while using her vehicle, turned himself into the police. The police officers placed plaintiff in a police wagon, using such excessive force that they bruised her arm. Following several hours in custody, plaintiff was arraigned and released on bail. The traffic court later dismissed the case against her "since the tickets were all in the name of her brother" (Complaint para. 10).

 The complaint charges that the defendants acted in concert to deprive plaintiff of her rights. The City's liability is predicated upon its negligence in the selection, appointment, training, and failure to exercise proper control and authority over officers Heil and Granozio, and upon vicarious liability under the respondeat ...


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