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May 12, 1980

Willie JONES, Calvin Byrd and Arthur Lee Jones
CITY OF PHILADELPHIA, Officers H. Muntz, J. Delgado, John Doe, and Joseph O'Neill.

The opinion of the court was delivered by: POLLAK


On October 30, 1979, I dismissed plaintiffs' second amended complaint, allowing leave to amend. That complaint, alleging police misconduct, and naming as defendants not only three police officers and former Police Commissioner O'Neill, but also the City of Philadelphia, looked directly to the Fourteenth Amendment as the source of the asserted federal cause of action. I held that the decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) which held that the cause of action for official infringements of constitutional rights conferred by 42 U.S.C. § 1983 runs not only against municipal employees but, in certain exigent circumstances, against the municipality itself afforded sufficient vindication of Fourteenth Amendment guarantees so as to obviate the implication of a cause of action based directly on the Amendment. See Jones v. City of Philadelphia, 481 F. Supp. 1053 (1979).

 Plaintiffs filed a third amended complaint on December 20, 1979; and, on January 14, 1980, defendants again moved to dismiss. Plaintiffs belatedly responded to the most recent motion to dismiss on February 29, 1980. While the defendants' motion to dismiss attempted to refute seriatim the legal bases for the omnibus claims contained in plaintiffs' latest complaint, plaintiffs' response amounts to little more than a generalized assertion that the complaint conforms to the requirements of Monell.

 The new complaint sets forth the same basic factual scenario set forth in the dismissed complaint that on May 13, 1975, plaintiffs were at the Liberty Fair in Philadelphia, "comporting themselves in a quiet, peaceful and lawful manner, when they were escorted from the fair by" several police officers; that as plaintiffs were departing from the fair in an automobile, "defendant Doe threw a nightstick into the front window of the automobile, and defendants Muntz and Delgado and Doe began to open fire with guns," injuring plaintiffs; that plaintiffs were then arrested without probable cause in order to conceal defendants' actions.

 The new complaint adds the following allegations: (1) that both the initial assault and the subsequent arrest were the product of a conspiracy amongst Muntz, Delgado and Doe; (2) that defendants O'Neill and City of Philadelphia caused the injuries by their "deliberate acts and gross and reckless negligence" in failing properly to train and supervise the individual officers; (3) that plaintiffs are black citizens and defendants "were motivated by unlawful racial considerations;" and (4) that defendants' acts were committed under color of state law.

 The "action is brought pursuant to 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, and the First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments. Jurisdiction is founded on 28 U.S.C. §§ 1331 and 1343(1), (2), (3), (4) . . . " In addition, plaintiffs identify causes of action arising under state law, for which they invoked this court's pendent jurisdiction.


 At the outset we deal with plaintiffs' claims under 42 U.S.C. § 1983. As against the city and the police commissioner, the operative language in the complaint charges that, "Defendants O'Neill and City of Philadelphia, by their deliberate acts and gross and reckless negligence in failing to adequately train, supervise and discipline the individual officers, defendants here, and other officers in the Philadelphia Police Department, directly caused the injuries and harm suffered by the plaintiffs."

 It is clear that plaintiffs have not, in this paragraph or anywhere else in their complaint, alleged a governmental policy or custom which might give rise to municipal liability under the standards set forth in Monell v. Department of Social Services, supra. Negligence, whether conclusorily described as "gross" or otherwise, is clearly insufficient under the standards set forth in Monell. Indeed, even the "deliberate act" of a city official, absent the trappings of official policy or custom, will not serve as a basis for municipal liability under § 1983. Thus, plaintiffs' § 1983 claims against the City of Philadelphia will be dismissed.

 The claim stated against Commissioner O'Neill is no stronger. Negligent supervision does not suffice as a basis for § 1983 liability. Schweiker v. Gordon, 442 F. Supp. 1134 (E.D.Pa.1977); Jones v. McElroy, 429 F. Supp. 848 (E.D.Pa.1977). A greater degree of personal culpability is required. "The cases suggest that relief may not be obtained against supervisors unless they have participated in the offending conduct or have knowledge of or acquiescence in the constitutional deprivation." Santiago v. City of Philadelphia, 435 F. Supp. 136, 151 (E.D.Pa.1977). The attempt to invoke a higher standard of culpability by the unelaborated use of the phrase "gross and reckless negligence," will not salvage a claim the gravamen of which is inadequate training and supervision. Jones v. McElroy, supra. Even if the term "reckless" is read as an implicit assertion of knowledge or acquiescence on the part of the supervisor, the bare assertion of knowledge, absent some factual recitation from which its source and scope may be gleaned, will not insulate a civil rights complaint such as this from a motion to dismiss. Schweiker v. Gordon, supra. The complainant's allusion to unspecified "deliberate acts," should fare no better. The § 1983 claim against O'Neill will, therefore, be dismissed.

 Although defendants appear to seek dismissal of the § 1983 claims against Officers Muntz, Delgado and Doe, their memorandum of law does not clarify the basis of their objection. To the contrary, the complaint adequately describes these defendants' participation in the shooting incident and the subsequent arrest. The § 1983 claims against these defendants will be allowed to proceed.


 The complaint is devoid, however, of any allegation that either Commissioner O'Neill or the City of Philadelphia was party to the alleged conspiracy among the individual officers. Thus, as to these defendants, the § 1985(3) claim must be dismissed. Moreover, since the complaint fails even to allege knowledge of the conspiracy on the part of the City or the Commissioner, the attempt to state a claim against these defendants under 42 U.S.C. § 1986 must, ...

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