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SCHWEIKER v. GORDON

December 19, 1977

JOHN SCHWEIKER
v.
OFFICER GORDON, Individually and as a police officer of the City of Philadelphia; JOHN DOE, Individually and as a police officer of the City of Philadelphia; JOSEPH O'NEILL, Individually and as Police Commissioner of the City of Philadelphia; THE CITY OF PHILADELPHIA



The opinion of the court was delivered by: LUONGO

 This is a "police brutality" case. The plaintiff, John Schweiker, contends that on December 12, 1976, he was beaten by an unidentified police officer named Gordon and other policemen he can't name or identify ("John (Does)"). In this action, which is based on the Civil Rights Act of 1871 and Pennsylvania common law, he seeks damages against the policemen, Philadelphia Police Commissioner Joseph O'Neill, and the City of Philadelphia. He also seeks to enjoin O'Neill from continuing to employ the defendant police officers. Liability of the City and O'Neill is based on respondeat superior and, in addition, O'Neill's liability is based on his alleged negligence in testing, training, and supervising Philadelphia police officers and failure to remove the defendant policemen from their jobs after learning of their "violent propensities." O'Neill and the City have moved to dismiss for lack of jurisdiction and failure to state a claim upon which relief can be granted.

 At the outset, it is unclear to me whether the complaint asserts federal civil rights claims against O'Neill and the City. After setting forth various factual averments in the complaint, plaintiff asserts his legal claims under two headings. The first, entitled "FEDERAL CLAIMS," states:

 
"E. FEDERAL CLAIMS
 
32. All of the allegations set forth in paragraphs 1 through 31 above are hereby incorporated as though fully set forth below.
 
33. By intentionally harming the plaintiff, and not coming to his aid while harm was being inflicted, officers Doe and Gordon violated plaintiff's right to be protected from unwarranted searches and seizures as promised by the Fourth Amendment, his right to be free of cruel and unusual punishments as granted by the Eighth Amendment, his right to the due process of law under the Fourteenth Amendment, and other rights generally vested in citizens by the Ninth and Thirteenth Amendments.
 
34. In abridging plaintiff's rights as alleged in paragraph 33 hereof, defendants violated 42 U.S.C. ยง 1983."

 The remaining legal claims are set forth under the second heading, entitled "PENDENT STATE CLAIMS:"

 
"F. PENDENT STATE CLAIMS
 
35. Paragraphs 1 through 34 hereof are incorporated hereby as though set forth at length below.
 
36. Officers Doe and Gordon's beating of plaintiff Schweiker was tortious and constituted an unlawful assault and battery.
 
37. Defendants Does' failure to rescue the plaintiff was gross negligence.
 
38. Defendant Gordon is liable to John Schweiker for false arrest and malicious prosecution.
 
39. Defendant O'Neill's acts as specified above were negligent and in reckless disregard of plaintiff's rights as as [sic] citizen, exhibiting a patent lack of the prudence and care which is ...

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