on the part of the individual police officers in assaulting the plaintiffs, and further charges those officers with a conspiracy to cover up their actions and thwart plaintiffs in any resultant litigation. The further allegation is made that the defendants were motivated in their actions by racial animus. Thus the § 1985(3) claim against these defendants is sufficiently alleged.
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, by the clear language of the statute,
fail as well.
Finally, it is necessary to consider the claim alleged to arise under 42 U.S.C. § 1981.
It may fairly be assumed that plaintiffs' reference to § 1981 is intended to encompass the whole of defendants' alleged wrongful conduct under what the Court of Appeals for the Third Circuit has referred to as the "equal benefit" and "like punishment" clauses of that section. See Mahone v. Waddle, 564 F.2d 1018 (1977), cert. denied, 438 U.S. 904, 98 S. Ct. 3122, 57 L. Ed. 2d 1147. As construed by the Court of Appeals, those clauses of § 1981 have broad applicability, encompassing police conduct which may also fall within the prohibition of § 1983. Indeed, the claim approved in Mahone was, in rough parameters, comparable to that alleged here.
But perhaps most significantly for present purposes, Mahone held that the municipal "immunity" identified in 42 U.S.C. § 1983 by Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), was without counterpart in 42 U.S.C. § 1981. And in holding municipalities to be potential § 1981 defendants, the Court of Appeals embraced a theory of municipal liability encompassing respondeat superior a theory of liability much broader than the basis for liability subsequently determined to be appropriate under § 1983 by the Supreme Court in Monell. Thus, if plaintiffs can prove their § 1981 claim against the individual police officers, the City is likely to be held vicariously liable.
Of course, racial animus is a necessary element in a § 1981 claim. Here, plaintiffs have alleged that they are black and that the "acts of the defendants were motivated by unlawful racial considerations." Defendants argue that these allegations are not sufficiently specific to state a civil rights claim. Defendants argue that the apparent fact that all plaintiffs are black and none of the individual defendants is (although this fact is not alleged in terms in the complaint, it is assumed in defendants' motion papers), coupled with a bald assertion of racial motivation, is not a sufficient predicate for § 1981 liability.
In Croswell v. O'Hara, 443 F. Supp. 895 (E.D.Pa.1978), Judge Luongo considered a § 1981 claim which alleged racial prejudice with no more specificity than the one at issue here. He rejected defendants argument.
The matter being alleged is . . . difficult to support with specific averments in a pleading. Proof of racial motivation depends on an overall analysis of the totality of factual circumstances, and such matters normally do not lend themselves to more than conclusory allegations . . . Certainly the fact that plaintiff and defendants were of different races gives rise to the possibility that defendants' acts were racially motivated. A great deal more is needed to prove the issue, but, in the absence of a more adequate method of pleading, I conclude that plaintiff's allegation of discriminatory intent in this case is sufficient. (citations omitted)
443 F. Supp. at 897. In this comparable setting, I will allow plaintiffs' comparable claim to stand. In so doing I recognize the considerations which have forced the courts towards a requirement of "fact pleading" in civil rights cases. In particular, I am cognizant of the potential for abuse, in a case such as this, where the survival of the § 1981 claim through the early stages of the proceeding serves to keep the deep pocket of the municipality in the lawsuit where it can be the target of pendent state claims. But I must assume that the very serious allegation of racial motivation, here offered for the first time in this case in the third amended complaint, has been tendered in good faith. And if it appears after a period of discovery that the charge is not supported by evidence, defendants will no doubt move for summary judgment.
Finally, we consider the § 1981 claim asserted against Commissioner O'Neill. As noted above, O'Neill is one of the defendants whom plaintiffs charge with "unlawful racial motivation." But, as noted above, plaintiffs have not averred that O'Neill participated in, or had knowledge of, the alleged wrongful acts of the individual officers. They have not pleaded specific facts demonstrating that O'Neill might have anticipated the alleged unlawful actions. And inasmuch as O'Neill was not the employer of the police officers, he cannot be held vicariously liable for their unconstitutional conduct. Thus it is clear that the § 1981 claim against O'Neill must be dismissed. Croswell v. O'Hara, supra; Preston v. City of York, 452 F. Supp. 52 (M.D.Pa.1978).
By way of summary:
(1) The federal claims against Commissioner O'Neill, as set forth in the third amended complaint, will be dismissed. And since the pleading sets forth no valid federal claim against Commissioner O'Neill, I will not retain pendent jurisdiction over the state claims asserted against him. See Aldinger v. Howard, 427 U.S. 1, 96 S. Ct. 2413, 49 L. Ed. 2d 276 (1976).
(2) All federal claims against the City of Philadelphia, with the exception of those brought under 42 U.S.C. § 1981, will be dismissed. Pendent jurisdiction will continue to provide a basis for the various state law claims against the City.
(3) As against the individual officers, the motion to dismiss will be denied in its entirety.