The opinion of the court was delivered by: LUONGO
Plaintiff filed this civil rights action against the City of Philadelphia, Mayor Frank L. Rizzo, Police Commissioner Joseph O'Neill, and police officers Girard and Guy in November 1975. In March 1977, I dismissed the action against the City, Rizzo, and O'Neill. 429 F. Supp. 865 (E.D. Pa. 1977) (Milburn I). Plaintiff now moves to amend his complaint to reinstate the City as a defendant and to add claims against the City and the police officers under the Civil Rights Act of 1866.
In Milburn I, I summarized the allegations in plaintiff's complaint as follows:
"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." 429 F. Supp. at 866.
The complaint asserts civil rights claims under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985-1986, and various provisions of the United States Constitution and asserts pendent claims under Pennsylvania law.
I dismissed the civil rights claims against the City because, as I stated in Milburn I, 429 F. Supp. at 867-68, and the companion case of Jones v. McElroy, 429 F. Supp. 848, 853-60 (E.D. Pa. 1977), the City is not a person within the meaning of the Civil Rights Act of 1871 and is not liable for damages in an action asserted directly under the Fourteenth Amendment. Alternatively, I held that the theories upon which plaintiff sought to impose liability on the City -- respondeat superior, negligence in training and supervision of the policemen, and (as to the § 1985 claim) conspiracy -- could not form a basis for civil rights liability of the City even if the City could be held liable under the 1871 Act or directly under the Fourteenth Amendment.
In addition, because I had dismissed the federal civil rights claims against the City, I declined to exercise pendent jurisdiction over plaintiff's state law claims against the City, noting the Supreme Court's admonition in United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), that "if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." Indeed, in light of the Supreme Court's decision in Aldinger v. Howard, 427 U.S. 1, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976), I questioned whether I had the jurisdictional power to hear the pendent claims against the City. See Jones, supra, at 865; Milburn I, at 869.
Plaintiff now moves to amend to assert claims against the City and the police officers under the Civil Rights Act of 1866, 42 U.S.C. § 1981,
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
In addition to seeking to amend para. 1 of the complaint to add § 1981 to the list of statutes under which he sues, plaintiff seeks to amend the factual allegations in para. 22 to add the following averment:
"The acts complained of herein were motivated by unlawful racial considerations and plaintiff, a black male, was deprived of his rights as a result of the racially motivated acts of defendants Guy and Girard."
Federal Rule 15(a) provides that once a responsive pleading has been filed, as defendants Girard and Guy have done in this case, the plaintiff may amend his complaint "only by leave of court or by written consent of the adverse party." The rule provides further that "leave shall be freely given when justice so requires." Rule 15(a) has been liberally construed. See, e.g., Chamberlin v. United Engineers and Constructors, Inc., 194 F. Supp. 647 (E.D. Pa. 1961). Indeed, the Supreme Court has stated that denial of leave to amend without any justifying reason is an abuse of discretion. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). Plaintiff's motion must be decided in that context.
One proper justification for denying leave to amend is futility. Foman, supra, at 182. If the amendment sets forth a claim upon which, as a matter of law, plaintiff is not entitled to relief, leave to amend should be denied. Izaak Walton League of America v. St. Clair, 55 F.R.D. 139, 141 (D. Minn. 1972), aff'd in part and rev'd in part on other grounds, 497 F.2d 849 (8th Cir.), cert. denied, 419 U.S. 1009, 95 S. Ct. 329, 42 L. Ed. 2d 284 (1974). It is appropriate, therefore, to consider whether the allegations in plaintiff's complaint state a cause of action under the 1866 Act.
In Mahone v. Waddle, 564 F.2d 1018 (3d Cir., 1977), plaintiffs, two black citizens of Pittsburgh, alleged that two Pittsburgh police officers stopped them without probable cause and "subjected them to racial epithets, verbal harassment, and physical abuse by hands, fists, and nightsticks." 564 F.2d at 1020 [Slip op. at 3]. The plaintiffs were transported to a police station and falsely accused and convicted of motor vehicle violations. The convictions were based on false testimony given by the policemen. Plaintiffs alleged that the policemen, acting under color of state law, "were 'motivated by racial prejudice,' and acted 'with purpose of depriving Plaintiffs of equal protection and benefits of the law, equal privileges and immunities under the law, and due process . . . .'" Id. 564 F.2d at 1020-21 (quoting Complaint). The district court dismissed the action insofar as it was based on the Civil Rights Act of 1866, holding that the facts alleged did not set forth a § 1981 claim and, with regard to the claim against the City of Pittsburgh, that a city could not be held liable under the 1866 Act. In what apparently is the first interpretation of § 1981 in the context of "police brutality" actions, the Court of Appeals reversed, holding that plaintiffs had properly alleged violation of § 1981's mandate that "[all] persons . .. shall have the same right in every State . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, [and] penalties":