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COGGINS v. MCQUEEN

March 30, 1978

IRIS COGGINS
v.
JAMES H. McQUEEN, Individually and as Sheriff of Chester County, LARRY SMITH, individually and as Deputy Sheriff of Chester County, KAYE CARPENTER MURRAY and COUNTY OF CHESTER



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Plaintiff Iris Coggins ("Coggins") brought this civil rights action "to redress the deprivation under color of statute, ordinance, regulation, custom or usage of the rights, privileges and immunities secured to [her] by the First, Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Equal Protection Clauses [ sic ] thereunder." The named defendants are: James H. McQueen ("McQueen"), individually and as Sheriff of Chester County; Larry Smith ("Smith"), individually and as Deputy Sheriff of Chester County; Kaye Carpenter Murray ("Murray"); and the County of Chester ("the County"). The express basis for Coggins' claims against each of the defendants are 42 U.S.C. §§ 1983, 1985 and 1986 *fn1" ("Civil Rights Acts") and state common law. *fn2" The jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§ 1331, 1343(1), (2), (3) and (4), and pendent jurisdiction. *fn3" The amount in controversy is alleged to exceed $10,000, exclusive of interest and costs.

 Each of the defendants has filed a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted. For the reasons stated below, we will grant the motions of the County, McQueen and Murray to dismiss, and we will grant in part and deny in part the motion of Smith to dismiss.

 I. County of Chester

 In support of its Fed.R.Civ.P. 12(b)(6) motion to dismiss, the County argues, first, that no cause of action can be stated against a county pursuant to 42 U.S.C. §§ 1983, 1985 or 1986 because it is not a "person" within the meaning of the Civil Rights Acts. Second, the County argues that Coggins has failed to state a claim upon which relief can be granted based upon the First, Fifth, Eighth or Fourteenth Amendments to the Constitution of the United States, because no constitutional claim can be implied against a municipality on a theory of respondeat superior. In its memorandum of law in support of its position, the County urges this Court to adopt the dissenting opinion of Judge Garth in Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), which states that the Fourteenth Amendment does not create a private right of action. *fn4"

 Coggins responds by conceding that a County is not a "person" within the meaning of 42 U.S.C. § 1983. She argues, however, that based on the authority of Gagliardi v. Flint, 564 F.2d 112 (3d Cir. 1977), " . . . this Honorable Court can exercise jurisdiction over the City of Philadelphia [ sic ], as well as the other defendants, under Title 28 United States Code, § 1331." Coggins argues further that, if this Court declines to exercise § 1331 jurisdiction over her constitutional claims, this Court has pendent jurisdiction to hear her state law claims against the "City of Philadelphia [ sic ]."

 Taking the County's second argument first, we hold that Coggins has failed to state a claim upon which relief can be granted under the First, Fifth, Eighth or Fourteenth Amendments to the United States Constitution, because Coggins literally has failed to state a claim based upon any constitutional amendment. The fact that Coggins has alleged a deprivation of rights guaranteed by those amendments in a claim based upon 42 U.S.C. §§ 1983, 1985 and 1986 will not take the place of a claim based directly under an amendment to the United States Constitution.

 Second, we hold that Coggins has failed to state a claim against the County upon which relief can be granted pursuant to 42 U.S.C. §§ 1983, 1985 or 1986, because a County is not a "person" within the meaning of the Civil Rights Acts. It is well settled, as Coggins concedes, that a county is not a "person" within the meaning of 42 U.S.C. § 1983. Aldinger v. Howard, 427 U.S. 1, 16-17, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976); City of Kenosha v. Bruno, 412 U.S. 507, 511-513, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973); Moor v. County of Alameda, 411 U.S. 693, 710, 36 L. Ed. 2d 596, 93 S. Ct. 1785 (1973); Monroe v. Pape, 365 U.S. 167, 187-192, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). Further, although the Supreme Court has not ruled directly upon the issue, because of the common historical derivation of 42 U.S.C. §§ 1983, 1985 and 1986, see Jones v. McElroy, 429 F. Supp. 848, 853 n. 3 (E.D.Pa. 1977), the majority of lower courts have held that a county is also not a "person" within the meaning of 42 U.S.C. §§ 1985 or 1986. Bosely v. City of Euclid, 496 F.2d 193, 195 (6th Cir. 1974); Veres v. County of Monroe, 364 F. Supp. 1327, 1328-1330 (E.D.Mich. 1973), aff'd mem., 542 F.2d 1177 (6th Cir. 1976), cert. denied, 431 U.S. 969, 97 S. Ct. 2929, 53 L. Ed. 2d 1065 (1976); Ransom v. City of Philadelphia, 311 F. Supp. 973, 974 (E.D.Pa. 1970). See also Hahn v. Sargent, 523 F.2d 461, 469-470 (1st Cir. 1975), cert. denied, 425 U.S. 904, 47 L. Ed. 2d 754, 96 S. Ct. 1495 (1976); Martin Hodas, East Coast Cinematics v. Lindsay, 431 F. Supp. 637, 645 (S.D.N.Y. 1977). Because a county is not a "person" within the meaning of 42 U.S.C. §§ 1983, 1985 or 1986, an essential element of a cause of action based upon those statutes is lacking and no claim upon which relief can be granted can be stated against a county pursuant to the Civil Rights Acts.

 Coggins argues, however, that on the authority of Gagliardi v. Flint, supra, invoking federal jurisdiction pursuant to 28 U.S.C. § 1331, rather than §§ 1343(1), (2), (3) or (4), somehow bypasses the traditional limitation that a county is not deemed to be a "person" within the meaning of the Civil Rights Acts and permits this Court to adjudicate her constitutional claims against the County. The linchpin of Coggins' argument appears to be the following quotation from Gagliardi v. Flint, supra :

 
". . . we cannot say that the fourteenth amendment claim against the City is 'so insubstantial, implausible, foreclosed by prior decision of the [Supreme] Court, or otherwise completely devoid of merit as not to involve a federal controversy within the jurisdiction of the District Court.' Hagans, supra, 415 U.S. at 543, quoting Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 666-67, 39 L. Ed. 2d 73, 94 S. Ct. 772 (1974). It may be that a respectable case can be stated in support of the proposition that a cause of action for damages on the basis of vicarious liability cannot be implied against a municipal corporation under the fourteenth amendment. Nonetheless, it is evident under Mt. Healthy, supra, that the question remains perplexing and substantial. Thus, we conclude that the fourteenth amendment claim against the City was sufficiently substantial to vest the district court with federal question jurisdiction under 28 U.S.C. § 1331.
 
Given the presence of federal jurisdiction, Hagans teaches that the district court did not abuse its discretion when it avoided the difficult constitutional question whether to imply a fourteenth amendment remedy in damages and proceeded instead to try the pendent state law claims." Id. at 116 (citations omitted) (emphasis supplied).

 Coggins' interpretation of Gagliardi appears to be as follows: In Gagliardi v. Flint, supra, the Third Circuit distinguished between a cause of action based upon the Fourteenth Amendment and a claim alleging a deprivation of rights guaranteed by the Fourteenth Amendment. Thus, pleading a federal cause of action and a corresponding federal jurisdictional basis empowers a federal court to entertain the claims embraced within that cause of action. If the embraced claims present a substantial federal question, the federal court has an independent basis of federal jurisdiction over those claims and may exercise its pendent jurisdiction to adjudicate the state claims against that party which, together with the federal claims, present one constitutional "case." Applying that theory to the facts of this case, Coggins appears to argue that, although a claim upon which relief can be granted cannot be stated against a municipality pursuant to 42 U.S.C. § 1983 when federal jurisdiction is invoked pursuant to 28 U.S.C. § 1343, if federal jurisdiction is instead invoked pursuant to 28 U.S.C. § 1331, then, irrespective of whether a cause of action can be stated against a municipality pursuant to 42 U.S.C. § 1983, because the federal question presented by the constitutional claim embraced within 42 U.S.C. § 1983 is substantial, the Court has the power to exercise pendent jurisdiction to adjudicate the state law claims against the municipality.

 Coggins' theory, although ingenious, is without merit. First, although there may be some support for the argument that there is a distinction between a "cause of action" and a "claim," see e.g. Hagans v. Lavine, 415 U.S. 528, 532-536, 39 L. Ed. 2d 577, 94 S. Ct. 1372; United Mine Workers v. Gibbs, 383 U.S. 715, 722-725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), a closer reading of these cases and others, see e.g. Aldinger v. Howard, supra, 427 U.S. at 4-6; Hagans v. Lavine, supra, 415 U.S. at 538-543 and 556-560 (Rehnquist, J., dissenting); United Mine Workers v. Gibbs, supra, 383 U.S. at 725-728, reveals that this is a distinction without a difference. Second, although there is arguably some support for Coggins' argument that § 1331 somehow transcends the limitations traditionally imposed in a § 1983 suit against a municipality, see Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 277-279, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), *fn5" we feel that a proper reading of that case reveals that the issue which the Supreme Court ...


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