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UNITED STATES v. CITY OF PHILADELPHIA

December 13, 1979

UNITED STATES OF AMERICA
v.
CITY OF PHILADELPHIA, ET AL



The opinion of the court was delivered by: DITTER

MEMORANDUM AND ORDER

This is an action brought by the Attorney General of the United States seeking broad equitable relief against an alleged pattern of police brutality. On October 30, 1979, I issued an opinion and order dismissing most of the complaint's allegations for lack of standing. Included in the complaint, however, was the charge that the defendants had discriminated on the basis of race in the administration of federally funded programs. I concluded that the Attorney General did have standing to maintain a civil action for the purpose of preventing such discrimination, and I therefore retained jurisdiction over this one aspect of the complaint. United States v. City of Philadelphia, 482 F. Supp. 1248 at 1259 (E.D.Pa.1979). This holding, however, was strictly limited to the standing issue, and did not address the sufficiency of the discrimination charges. Id., n. 12.

 The defendants have now moved to dismiss the remainder of the complaint under Fed.R.Civ.P. 12(b) on the ground that the allegations of discrimination have not been plead with sufficient specificity. For the second time in this litigation, I am persuaded that the defendants' position is correct. *fn1"

 As a threshold matter, plaintiff has accurately pointed out that a motion under Rule 12(b) is not timely at this juncture since an answer has already been filed. I will therefore treat the instant motion as one for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). *fn2" See Local No. 1 (ACA) v. I. B. T., C., W. & H., 419 F. Supp. 263, 275 n. 15 (E.D.Pa.1976).

 The rule is well established in this circuit that complaints in civil rights cases must be pleaded with factual specificity. Vague and conclusory allegations will not survive a motion to dismiss. Rather, the claim for relief must be supported by specific factual averments. Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976); Curtis v. Everette, 489 F.2d 516, 521 (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, 950 (3d Cir. 1972); Marnin v. Pinto, 463 F.2d 583, 584 (3d Cir. 1972); Robinson v. McCorkle, 462 F.2d 111, 114 (3d Cir.), cert. denied, 409 U.S. 1042, 93 S. Ct. 529, 34 L. Ed. 2d 492 (1972); Carr v. Sharp, 454 F.2d 271, 273 (3d Cir. 1972); Marcedes v. Barrett, 453 F.2d 391, 392 (3d Cir. 1972); United States ex rel. Birnbaum v. Dolan, 452 F.2d 1078, 1079 n. 1 (3d Cir. 1971); Fletcher v. Hook, 446 F.2d 14, 16 (3d Cir. 1971); Moore v. Buck, 443 F.2d 25, 26 & n. 1 (3d Cir. 1971); Oliver v. Governor of Pennsylvania, 442 F.2d 1347, 1348 (3d Cir.), cert. denied, 404 U.S. 1002, 92 S. Ct. 570, 30 L. Ed. 2d 555 (1971); Gaito v. Ellenbogen, 425 F.2d 845, 849 (3d Cir. 1970); Kauffman v. Moss, 420 F.2d 1270, 1275-76 & n. 15 (3d Cir.), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970); Winkler v. Pringle, 387 F.2d 380, 382 n. 3 (3d Cir. 1967); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967); Mayberry v. Somner, 480 F. Supp. 833, 836 (E.D.Pa.1979); Trader v. Fiat Distributors, Inc., 476 F. Supp. 1194, 1197-98 (D.Del.1979); Kedra v. City of Philadelphia, 454 F. Supp. 652, 675 (E.D.Pa.1978); Valley v. Maule, 297 F. Supp. 958, 960-61 (D.Conn.1968), quoted with approval in Kauffman v. Moss, supra, 420 F.2d at 1276 n. 15.

 The Third Circuit is not alone in requiring civil rights complaints to be plead with factual specificity. See Cohen v. Illinois Institute of Technology, 581 F.2d 658, 663 (7th Cir. 1978), cert. denied, 439 U.S. 1135, 99 S. Ct. 1058, 59 L. Ed. 2d 97 (1979); Nickens v. White, 536 F.2d 802, 803 (8th Cir. 1976); Anderson v. Sixth Judicial District Court, 521 F.2d 420, 421 (8th Cir. 1975); Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620, 622-23 (2d Cir. 1972), cert. denied, 410 U.S. 944, 93 S. Ct. 1393, 35 L. Ed. 2d 611 (1973).

 The present complaint does not satisfy this pleading standard. Most of the complaint is devoted to describing the policies and practices of defendants which are alleged to promote brutality in violation of the rights secured to All persons by the Constitution and civil rights laws of the United States. All of these allegations were dismissed by my order of October 30. We are now concerned Solely with the charge that defendants have discriminated on the basis of race in the administration of federally funded programs. The substance of the charge is contained in part of a single paragraph of the complaint. There it is alleged that "through these practices, policies, and procedures (set forth in paragraphs 29 through 42), persons within Philadelphia have been unlawfully subjected to discrimination on the grounds of race, color or national origin, and/or have been excluded on these grounds from participation in and/or receiving benefits from" federal financial assistance distributed under various federal statutes. See Complaint, P 48.

 This charge amounts to nothing more than the naked allegation that the defendants are guilty of racial discrimination in administering federal funds used to help run Philadelphia's police department. Plaintiff has set forth almost no factual averments to support this charge.

 In paragraphs 29 through 42, the complaint describes the policies, practices, and procedures which are said to foster police brutality in Philadelphia. Thus, for example, the plaintiff cites the unnecessary use of deadly force, the physical abuse of prisoners, the forceful extraction of confessions, and the conduct of illegal searches and seizures. Moreover, it is alleged that the police department fragments abuse investigations, suppresses evidence that might inculpate police officers, accepts implausible explanations of abusive conduct, and harasses complainants and witnesses. For the most part, however, there is no mention of racial discrimination in the pursuit of these improper practices. For example, there is no allegation that unwarranted arrests are made more frequently or that illegal searches and seizures occur more often with one race than with another.

 It is also interesting to note that paragraph 34(e) actually excludes the existence of discrimination from all categories of allegedly abusive conduct other than shootings and prisoner complaints. "These two categories of alleged abuses contain an overwhelming preponderance of black and Hispanic persons, Whereas other categories of alleged abuses do not." (emphasis added). This part of the complaint, then, although lacking in factual specificity, confines the charges of racial discrimination to incidents involving shootings and prisoner complaints. That allegation is contradicted, however, by the averment in paragraph 48 (equally lacking in factual specifics), which asserts that through All the practices, policies, and procedures referred to in the complaint, persons in Philadelphia have been excluded from participation in and/or receiving benefits from federally funded programs on the grounds of race, color, or national origin. Even the most perceptive defendant may wonder just what it is he is alleged to have done in connection with which aspect of what practice, policy, or procedure that is alleged to be discriminatory in some unspecified way as to some type of participation by unnamed persons in federally funded programs. I would not know what to tell him, nor would anyone else from a reading of this complaint.

 The point is that this complaint provides the defendants with no factual basis at all for the charges to which they are expected to respond. While the complaint charges the existence of a pattern of discrimination, it is completely devoid of any framework as to time, place, or manner. Moreover, there has not even been an attempt to connect any individual defendant with any particular act of discrimination. In summary, it is clear to me that this complaint falls far short of the specific fact pleading standard which the Third Circuit imposes in civil rights cases.

 Of course, it might fairly be argued that this is not, strictly speaking, a "civil rights case." Certainly, in its present posture, the case does not arise under the Civil Rights Acts. Rather, this action, as limited by my opinion and order of October 30, 1979, is one brought under various federal funding statutes for the purpose of preventing discrimination in the administration of federal funds. On this ground, the present suit might be distinguished from the long line of decisions by the Court of Appeals for the Third Circuit cited above.

 Despite this apparent distinction, however, I hold that the specific pleading requirement espoused in the above-cited cases should be applied here. First, it is clear that this action is one whose purpose is to enforce the civil rights guaranteed by the Constitution. I see no reason to alter the pleading requirements simply because the remaining claims are brought under statutes other than the ...


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