exploration of the factual setting in which the activity took place, 599 F.2d at 1215-16. Accordingly, we authorize, in the accompanying order, the taking of discovery on this point, and we reserve decision on the motions to dismiss this claim.
IV. Liability of the Police Commissioner and the District Attorney
Defendants O'Neill and Fitzpatrick, the Police Commissioner and former District Attorney respectively, contend that plaintiffs' factual allegations are insufficient to support any theory of liability against them, and move to dismiss on those grounds. For reasons explained infra, we grant Fitzpatrick's motion to dismiss but deny O'Neill's.
The claims against Fitzpatrick and O'Neill are essentially the same. The complaint alleges that beginning on October 5, 1975 and continuing thereafter, certain defendants other than O'Neill and Fitzpatrick threatened and coerced witnesses into making false statements incriminating Wilkinson, and that O'Neill and Fitzpatrick were aware of an ongoing pattern of the use of such methods by the police both generally and in this case, yet failed to remedy or prevent the unlawful consequences. Complaint P 22. Paragraphs 22 through 26 of the complaint outline specific facts of which O'Neill and Fitzpatrick allegedly had gained subsequent knowledge but had failed to act upon, including, inter alia, that various statements implicating Wilkinson had been coerced and were false, and that the witnesses who made these statements had been beaten and threatened by Philadelphia police.
The basis for plaintiffs' claims against O'Neill and Fitzpatrick is that of supervisory inaction. After the Supreme Court's decision in Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976), there was some question whether official inaction could ever be a basis for § 1983 liability. Rizzo held that the causal link between official inaction and a constitutional violation is insufficient if all that is found is a supervisor's failure to act in the face of unconstitutional actions by subordinates, but that the requisite causal connection can be established from the fact that the subordinates' actions are an implementation of policies or practices endorsed by the supervisor. See Santiago v. City of Philadelphia, 435 F. Supp. 136, 152 (E.D.Pa.1977). The existence of general policies and practices within an organization can create constructive knowledge on the part of the supervisor of alleged constitutional deprivations, and the greater the duty a supervisor has to control those employees who actually committed the violation(s), the less specific knowledge of the offending conduct the supervisor will be required to have. Id.
In Rizzo the plaintiffs were given the opportunity to prove the existence of the requisite causal connection, but the Supreme Court held that their trial proof was insufficient for purposes of establishing supervisory liability. Plaintiffs in this case have not yet had an opportunity to prove, or even to take discovery on, their claims. We read the complaint to allege specific knowledge on O'Neill's part of a pervasive pattern of illegal police behavior generally and in this case, and to allege that O'Neill had ultimate supervisory responsibility for the police who actually committed the alleged beatings, threats, and other coercive acts. If in fact O'Neill actually knew of the pervasive pattern of abuse alleged to have resulted in plaintiff's injuries yet failed to take any steps to remedy or prevent this situation, his endorsement of these practices could be inferred under the principles set forth in Rizzo. Whether or not plaintiffs can actually produce evidence of such a pattern and of O'Neill's knowledge of it is an issue which can properly be tested on a motion for summary judgment.
Under Federal Rule of Civil Procedure 12(b) (6), all well-pleaded allegations must be taken as true for purposes of a motion to dismiss, and the allegations of the complaint against O'Neill are sufficient to withstand his motion.
Although plaintiffs' claims against Fitzpatrick are nearly identical to those against O'Neill, we reach the opposite result on his motion. Assuming, as we must at this juncture, that Fitzpatrick knew all he is alleged to have known with respect to patterns of police abuse he nevertheless had no direct supervisory authority over the police. Because he had no such authority, a § 1983 suit based only on his alleged failure to supervise is untenable. The complaint also charges Fitzpatrick with failure to prevent the alleged actions of the other district attorney defendants, over whom he does have supervisory authority. However, there has been no allegation of a widespread pattern of prosecutorial misconduct which would give rise to the constructive knowledge in Fitzpatrick necessary to overcome Rizzo.
The only other possible theories of liability for official inaction against Fitzpatrick would involve either his failure to halt the Wilkinson prosecution (which he allegedly knew was proceeding without probable cause) or his failure to initiate prosecutions against the police (whom he allegedly knew to have committed assaults and batteries against witnesses in the firebombing case). These theories, like the failure-to-supervise theory, are untenable, but for a different reason: they are based on prosecutorial decisions for which Imbler clearly mandates absolute immunity, i. e., decisions made in a quasi-judicial capacity. There being no cognizable theory of § 1983 liability against Fitzpatrick, we will grant his motion to dismiss.
V. Collateral Estoppel
Certain defendants contend that Wilkinson is collaterally estopped from claiming that he was physically abused by the Philadelphia police because of a contrary determination in a prior proceeding in the Philadelphia Court of Common Pleas. Specifically, they point to Judge Bonavitacola's finding of fact, at the conclusion of an exhaustive evidentiary hearing on Wilkinson's motion to suppress his confession, that Wilkinson "was not at any time during police interrogation physically abused."
The doctrine of collateral estoppel requires (1) that the issue in question be identical to an issue actually litigated in the prior litigation; (2) that the prior litigation have resulted in a final judgment on the merits; and (3) that the party against whom the estoppel is asserted was a party or in privity with a party to the prior adjudication. See Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 844 (3d Cir. 1974).
In Jones v. Saunders, 422 F. Supp. 1054 (E.D.Pa.1976), a civil rights action, defendants premised a motion for summary judgment on a theory similar to the one advanced by the defendants in this case. The plaintiff in Jones had previously filed a state court motion to suppress relating to the alleged illegality of his arrest. The motion was denied, but he was subsequently acquitted on a directed verdict of not guilty. Defendants argued, as here, that plaintiff was collaterally estopped from raising the question of the legality of his arrest by the state court denial of his suppression motion. Chief Judge Lord, denying defendants' motion for summary judgment, stated:
A conviction is a final judgment. An order denying a motion to suppress is not; it is interlocutory. An acquitted defendant never has the opportunity to test finally in the state court the propriety of the lower court's ruling. . . . To hold that (he) is estopped would deprive a plaintiff of an opportunity for a definitive determination of important federal rights for the vindication of which the Civil Rights Acts were specifically designed.
422 F. Supp. at 1055.
Wilkinson, like the plaintiff in Jones, had no opportunity to test the propriety of the lower court's ruling in his suppression hearing, although for different reasons. Although unlike Jones he was subsequently convicted in state court (before he was ultimately exonerated), Wilkinson did win his pre-trial motion to suppress his confession. Judge Bonavitacola found against Wilkinson on the issue of physical coercion, but he also found that Wilkinson's limited mental ability prevented him from fully understanding the nature and consequences of Miranda warnings and from being capable of a knowing and intelligent waiver of his rights. It was on this basis that Wilkinson's confession was suppressed. Thus Judge Bonavitacola's finding on physical coercion was not essential to his suppression order, and since Wilkinson won the motion he had no reason to challenge any adverse determination contained in the order.
According to Professor Moore:
(T)he general rule is that a judgment has no conclusive effect adverse to the winning litigant, except insofar as it merges his cause of action if he was the plaintiff. This rule is based upon two considerations. First, any adjudication of an issue adverse to a litigant who nonetheless wins on another ground is not a dispositive adjudication, and the judgment that results does not depend upon that adjudication. Second, it would be unjust to conclude the winning litigant as to an issue adjudicated against him because, as the winning litigant, he was unable to seek appellate review. . . .
1B Moore's Federal Practice P 0.416(5) at 2302-03 (2d ed. 1974) (footnote omitted). In accordance with this general rule, and for the reasons expressed by Chief Judge Lord in Jones v. Saunders, supra, we deny defendants' motion to dismiss Wilkinson's assault and battery claims on grounds of collateral estoppel.
VI. Claims of Christine Wilkinson and Robert Wilkinson, Jr.
Certain of the defendants, citing Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972), urge that Christine Wilkinson and Robert Wilkinson, Jr. are not "legally cognizable parties" to this proceeding. To the extent that defendants' argument is couched in terms of standing and amounts to the contention that Christine and Robert, Jr. cannot assert claims based upon alleged violations of Robert Wilkinson's constitutional rights, we believe it misses the mark. Christine and Robert, Jr. do not assert Wilkinson's rights in this action; rather, they seek to assert their own. Accordingly, the issue is not one of standing; it is whether the claims asserted by Christine and Robert, Jr. are cognizable under § 1983, i. e., whether the allegations of the complaint state claims on behalf of Christine and Robert, Jr. upon which relief can be granted. For the reasons which follow, we believe that Christine's allegations do state a federal claim, but that Robert, Jr.'s do not.
B. Christine Wilkinson's Claim
Christine Wilkinson alleges, inter alia, that on October 5, 1975 she was threatened by the police defendants and was told that she would lose custody of Robert, Jr. if she did not sign a statement implicating her husband in the firebombing.
Complaint P 24. She contends that these allegations state claims under both federal and state law. Our concern at this juncture is not with the alleged state law claims, but only with whether the complaint states a cognizable federal claim on Christine's behalf.
We believe that it does.
In Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), the Court admonished against unduly expanding § 1983, and it may fairly be said that the case stands for the proposition that not every state-inflicted injury gives rise to a cause of action under § 1983. But Paul also reaffirms the undisputed principle that a cause of action is created under § 1983 when acts perpetrated under color of state law deprive an individual of a right secured by the Constitution.
The right asserted by Mrs. Wilkinson in this lawsuit may be characterized as a parental right or a right to family integrity. That such a privacy right is fundamental to American jurisprudence has been frequently affirmed by the Supreme Court. See Parham v. J. L., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979); Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977); Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973); Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972); Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965); Prince v. Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645 (1944); Skinner v. Oklahoma, 316 U.S. 535, 62 S. Ct. 1110, 86 L. Ed. 1655 (1942); Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). The familial right has been asserted under various Constitutional provisions, see, e.g., Mr. Justice Douglas' "penumbra" theory of Griswold v. Connecticut, supra, but has recently come to rest rooted in the Fourteenth Amendment's guarantee of personal liberty, Roe v. Wade, supra, 410 U.S. at 152-53, 93 S. Ct. 705, 726, 35 L. Ed. 2d 147. See Whalen v. Roe, 429 U.S. 589, 598-99 n.23, 97 S. Ct. 869, 876 n.23, 51 L. Ed. 2d 64 (1977).
If a state regulation had provided that Mrs. Wilkinson must give up either her son or her husband, the choice essentially alleged in the complaint, we would have an easy case. We are dealing here, however, with an isolated threat to remove her son if she refused to implicate her husband, and not with an actual removal. What we must decide is whether such a threat, when made by a police officer, may constitute an intrusion into Mrs. Wilkinson's right of family integrity sufficient to state a cause of action under 42 U.S.C. § 1983. We hold that, under the unique circumstances of this case, it does.
Justice Harlan, dissenting in Poe v. Ullman, 367 U.S. 497, 542-43, 81 S. Ct. 1752, 1776, 1777, 6 L. Ed. 2d 989 (1961), discussed the Court's function under the Due Process Clause:
Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that through the course of this Court's decisions it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. . . . The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. . . .