member and one building inspector do not without more constitute official policy. Jones v. City of Philadelphia, 491 F. Supp. 284 (E.D.Pa.1980).
Thus the allegation in the complaint of Borough responsibility is nothing more than conclusory, and therefore the § 1983 claim must be dismissed.
See Smith v. Ambrogio, 456 F. Supp. 1130 (D.Conn.1978).
B. Section 1985
Section 1985 of the 1871 Civil Rights Act provides a cause of action for relief against conspiracies to deprive individuals of certain rights. Plaintiff asserts claims under §§ 1985(2) & (3). The § 1985 claim against defendants Plunkett and Hammel was dismissed as stated above, by order of July 21, 1978.
If the Borough is to be held liable under § 1985
the plaintiff will have to show a conspiracy among or between Borough employees or agents. Assuming for the sake of discussion that defendants Plunkett and Hammel are persons whose activities represent official "edicts or acts" as required by Monell, 436 U.S. at 694, 98 S. Ct. at 2037, for holding the municipality liable, the § 1985 claim as to them was dismissed. Therefore, no claim can be maintained against the Borough under this statutory provision.
Even if on review it is determined that the earlier dismissal of the § 1985 claim as to defendants Plunkett and Hammel was improper, this claim nonetheless would be dismissed as to the Borough for the following reasons. With regard to the § 1985(3) claim, in Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971), the Supreme Court held that the statute requires allegations of a "class-based invidiously discriminatory animus" by the defendant against the plaintiff. The Court left open the question of what discriminatory classifications other than racial might serve as a predicate for a § 1985(3) claim. The plaintiff here has alleged no class-based animus, nor anything that even remotely suggests any categorization by the Borough. For the same reasons the court of appeals in Jennings v. Shuman upheld dismissal of a § 1985 claim. 567 F.2d at 1213, 1221.
To dismiss the § 1985(2) claim, I have to reach a question not yet decided by the Third Circuit, that is, whether respondeat superior liability can be asserted under § 1985. DeTore v. Local # 245, 615 F.2d 980, 983 (3d Cir. 1980) ("an issue we do not decide . . ."). I have determined that defendants Plunkett and Hammel are not officials of the Borough exercising sufficient authority to hold the Borough accountable for their actions. Therefore plaintiff would be claiming § 1985(2) liability against the Borough on a respondeat superior theory. Inasmuch as §§ 1985 and 1983 are part of the Civil Rights Act of 1871, I assume that the definition of "person" in both sections is the same, and therefore municipalities can be held liable under § 1985. Moreover, the causation language in § 1985 is equivalent to that in § 1983 on which Justice Brennan relied in his textual analysis of the statute.
Therefore the Monell analysis that liability under § 1983 cannot be predicated on respondeat superior applies with equal force to § 1985. Accord, Owens v. Haas, 601 F.2d 1242, 1247 (2d Cir.), cert. denied, 444 U.S. 980, 100 S. Ct. 483, 62 L. Ed. 2d 407 (1979); Edmonds v. Dillin, 485 F. Supp. 722, 725 (N.D.Ohio 1980).
C. Fourteenth Amendment and Pendent State Law Claims
The fourteenth amendment claim against the Borough presents a somewhat more difficult question. Before the Supreme Court ruling in Monell, municipalities were not suable under § 1983. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Between Monroe and Monell a number of courts had found municipalities liable for damages in actions brought directly under the fourteenth amendment. Compare Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978), vacated and remanded on other grounds, sub nom. City of West Haven v. Turpin, 439 U.S. 974, 99 S. Ct. 554, 58 L. Ed. 2d 645 (1978) (fourteenth amendment cause of action lies) (the opinion in Turpin was issued one day before Monell ); City of Inglewood v. City of Los Angeles, 451 F.2d 948 (9th Cir. 1971) (fourteenth amendment cause of action lies); Norton v. McKeon, 444 F. Supp. 384 (E.D.Pa.1977), aff'd, 601 F.2d 575 (3d Cir. 1979) (fourteenth amendment cause of action lies); with Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) (no fourteenth amendment cause of action); Schweiker v. Gordon, 442 F. Supp. 1134 (E.D.Pa.1977) (no fourteenth amendment cause of action); Jones v. McElroy, 429 F. Supp. 848 (E.D.Pa.1977) (no fourteenth amendment cause of action).
Consistent with the principle enunciated in Ashwander, since Monell held that under certain circumstances municipalities could be sued directly under § 1983, there would be no need to imply a direct cause of action under the fourteenth amendment when those circumstances obtain. But in Monell the Court also held that although a municipality can be sued under § 1983 it cannot be held liable on a respondeat superior theory. I come to the Bivens teaching that if there is no effective and substantial statutory remedy a direct action under the Constitution may be implied. Two questions logically present themselves: (1) does § 1983 provide an effective remedy in a case where the only potential predicate for liability against a municipality rests on a respondeat superior analysis; (2) if not, is there an implied cause of action under the fourteenth amendment when respondeat superior liability is invoked.
The Supreme Court did not decide these issues. In Monell Justice Powell in a concurrence stated, "rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today." Monell, 436 U.S. at 713, 98 S. Ct. at 2047 (Powell, J., concurring) (footnote omitted). The majority opinion, however, did not endorse this dictum.
Moreover, the question of an implied fourteenth amendment cause of action with respondeat superior liability is still open in this circuit.
In fact this court of appeals has explicitly eschewed addressing the difficult and complex constitutional question of whether to imply a fourteenth amendment cause of action when an alternative approach adjudicating state claims coextensive with the fourteenth amendment claim has provided a substantially equivalent remedy. Gagliardi v. Flint, 564 F.2d 112 (3d Cir. 1977), cert. denied, 438 U.S. 904, 98 S. Ct. 3122, 57 L. Ed. 2d 1147 (1978); Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), cert. denied sub nom. Pittsburgh v. Mahone, 438 U.S. 904, 98 S. Ct. 3122, 57 L. Ed. 2d 1147 (1978); Patzig v. O'Neil, 577 F.2d 841. The court fashioned what it called "an alternative basis on which we affirm the dismissal by the district court of the fourteenth amendment claim (based on) the presence in this case of pendent state law claims." Mahone v. Waddle, 564 F.2d at 1025 (footnote omitted).
In light of the difficult constitutional questions remaining after Monell, the Third Circuit caution in not unnecessarily addressing the constitutional issue seems particularly appropriate.
The court of appeals' analysis is structured on the teaching of Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946), that the question of whether a cause of action exists is distinct from the issue of the existence of a jurisdictional predicate. Thus, the court of appeals has held that the fourteenth amendment claim raised a substantial federal question sufficient to support § 1331 jurisdiction over a municipality without deciding whether a fourteenth amendment cause of action in fact exists. The court then held that a district court in its discretion could entertain pendent state law claims against the municipality before and without addressing any constitutional claims.
In order for a court to exercise pendent jurisdiction, the claims that would be jurisdictionally deficient standing alone, must arise out of a "common nucleus of operative fact" with claims over which there is jurisdiction. Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577 (1974); United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 1138, 16 L. Ed. 2d 218 (1966). A court should retain jurisdiction if it advances judicial economy, convenience, and fairness to the litigants. The state law claims in this suit asserted against the Borough are offered on a respondeat superior theory,
which in turn rests on determinations of liability against the individual defendants. Thus the exercise of pendent jurisdiction in this case clearly promotes judicial economy and causes no undue hardship to the defendants. I therefore dismiss plaintiff's fourteenth amendment claim against the Borough, but retain jurisdiction to hear his pendent state law claims.
III. Claim Against the Individual Defendants
The only federal claim remaining against defendants Plunkett and Hammel is brought under § 1983. To state a claim under that section, a plaintiff must allege a deprivation of rights secured by the Constitution and laws by a defendant acting under color of state law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). The "under color of state law" requirement is met when a plaintiff alleges the "(misuse) of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941). The allegations of the complaint satisfy this requirement, since it was by virtue of defendants' positions with the Borough that they were able to act against the plaintiff in the ways alleged.
The plaintiff alleges deprivation of due process and equal protection under the fourteenth amendment. As noted in section II. B. supra, the complaint is devoid of any allegation of class-based discrimination. Thus an equal protection analysis is not applicable to the injury alleged.
Plaintiff does however properly allege a due process claim. In his factual averments he states that he was charged with and arrested for criminal violations of building, construction, and zoning regulations without just or probable cause, and that the purpose was to harass and drive him out of business and out of the area. Malicious use and abuse of process
are constitutional torts, since they are "by definition a denial of procedural due process." Jennings v. Shuman, 567 F.2d at 1220. As in the case of the state law claims against the Borough, I will exercise pendent jurisdiction over the state law claims against the individual defendants, as well as entertain the § 1983 claims against them.
In his complaint plaintiff has not stated whether he is suing the defendants in both their individual and official capacities. Another court in this district has held that
"Sued individually and in their official capacity" is one of those standard boilerplate clauses that frequently find their way into pleadings against public officials. The purpose of such an averment appears to be the reservation of alternate sources of recovery for the alleged misconduct-the individual's personal resources, and the treasury of the governmental body which he serves.
Kedra v. City of Philadelphia, 454 F. Supp. at 664. Plaintiff has alleged only that Plunkett and Hammel did not act in their individual capacities, but rather under color of state law.
In Monell, the Supreme Court held:
Since official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent-at least where Eleventh Amendment considerations do not control analysis-our holding today that local governments can be sued under § 1983 necessarily decides that local government officials sued in their official capacities are "persons" under § 1983 in those cases in which, as here, a local government would be suable in its own name.