plaintiff alleges that he then was thrown roughly into a patrol wagon and beaten with a blackjack. Plaintiff was taken to a police station and eventually to Hahnemann Hospital for treatment of head injuries and multiple fractures of his right leg. All charges filed against the plaintiff were dismissed.
Defendants Joseph O'Neill, Frank Rizzo and the City of Philadelphia have filed a Motion to Dismiss based on lack of jurisdiction and failure to state a claim on which relief can be granted. The plaintiff has filed a Motion for Leave to Amend the Complaint in order to allege a cause of action based on respondeat superior against defendants Joseph O'Neill, Frank Rizzo and the City of Philadelphia. These motions involve issues which commonly arise in this type of Civil Rights case. Unfortunately, these issues are not easy to resolve, as is demonstrated by the split of authority within this District. In this case, I have determined that both motions must be granted in part and denied in part.
The defendants first contend that there is no federal jurisdiction over claims against the City of Philadelphia. Clearly, the City cannot be made a party pursuant to 42 U.S.C. § 1983, since the City is not a "person" within the meaning of that statute. However, this Court previously has ruled that jurisdiction over a municipality can be obtained under 28 U.S.C. § 1331(a), for claims based directly on the Constitution, where the amount in controversy requirement is satisfied. See Santore v. City of Philadelphia, C.A. No. 76-904 (E.D. Pa. September 28, 1976). Although several other courts in this District have refused to recognize such jurisdiction,
I see no reason to depart from my approach in Santore.2 In fact, since this issue presently is on appeal to the Third Circuit Court of Appeals, it seems sensible to retain the City as a party, with the understanding that it can be removed as a party if the Court of Appeals rules that jurisdiction over the City cannot be based on § 1331. See Lopez v. White, C.A. No. 75-3681 (E.D. Pa. April 11, 1977) (Higginbotham, J.); Stretz v. Bristol Township, C. A. No. 76-3414 (E.D. Pa. January 10, 1977) (Fullam, J.). Consequently, defendants' motion to dismiss the constitutional claims against the City of Philadelphia for lack of jurisdiction will be denied.
The defendants also have argued that the plaintiff's complaint fails to state a claim on which relief can be granted. As to the specific conduct of the police officers which resulted in the plaintiff's injuries, I have no difficulty in holding that the allegations are sufficient to make out a claim under both 42 U.S.C. § 1983 and the Fourteenth Amendment. However, the plaintiff also has made claims against Mayor Frank Rizzo, Police Commissioner Joseph O'Neill and the City of Philadelphia based on negligent training and supervision. Some courts have held that negligence is not sufficient to support an action for deprivation of constitutional rights. See Jones v. McElroy, C.A., 429 F. Supp. 848 (E.D. Pa. 1977) (Slip Op. at 21-25) (Luongo, J.) I am more inclined to follow those courts that have permitted civil rights claims based on negligence. See Navarette v. Enomoto, 536 F.2d 277 (9th Cir. 1976), cert. granted, 429 U.S. 1060, 97 S. Ct. 783, 50 L. Ed. 2d 776 (1977), rev'd sub nom. Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978).
While every negligent act committed under color of law will not give rise to a civil rights claim, a negligent act which amounts to the deprivation of a right, privilege, or immunity secured by the Constitution or laws of the United States is within the terms of § 1983. See Monroe v. Pape, 365 U.S. 167, 187, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). Thus, in my view, an individual who is unlawfully deprived of his liberty because of a negligent act committed under color of state law can bring a civil rights claim.
Nevertheless, the claims in this case based on negligent training and supervision must be dismissed. The Third Circuit has held repeatedly that the facts supporting an allegation of constitutional deprivation must be pleaded with specificity. See, e.g., Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974); Esser v. Weller, 467 F.2d 949 (3d Cir. 1972); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967). See also Jones v. McElroy, supra, 429 F. Supp. 848, slip op. at 25-26. The only allegations pertaining to negligent training and supervision are in paragraphs 21 and 22 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 and/or indirectly caused the injuries and harm suffered by the Plaintiff."