ON APPEAL FROM THE ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA DATED NOVEMBER 16, 1979 (Civil Action No. 77-1164)
Before: ALDISERT, GARTH and VAN DUSEN, Circuit Judges
This appeal requires us to decide whether the Commonwealth of Pennsylvania may maintain and bring an action under 42 U.S.C. § 1983 as an aggrieved "other person".
The Commonwealth and certain individual plaintiffs sought to enjoin the Chief of Police, a police officer, and the Mayor and members of a Borough's council because of alleged unconstitutional actions taken by Officer Baranyai against the citizens of the Borough of Millvale. The district court, having found that Baranyai had indeed committed many of the acts alleged, and that this conduct was ratified by the other defendants, enjoined all of the defendants.
Because we hold that the Commonwealth had no standing as a plaintiff in this action, and that the members of the Borough Council cannot be held liable on the record of this case and the standard elaborated in Rizzo v. Goode, 423 U.S. 362 (1976), we are obliged to reverse the district court in these respects. In reversing the district court, however, we do not disturb the district court's findings of fact with respect to Baranyai's actions or the ratification of those actions by the police chief and Mayor of Millvale. Thus, as to those defendants, we agree with the district court's rulings.
Beginning some time before the middle of 1974, the Mayor, Chief of Police, and Borough Council of Millvale began receiving complaints about one of the Borough's policemen, Frank L. Baranyai. These accusations about Baranyai were made by various citizens. They charged that Baranyai had violated their constitutional rights by physically abusing them in a brutal manner, by threatening and harassing them and by illegally arresting and detaining them. Subsequently, the Commonwealth and four individual plaintiffs instituted a § 1983 action*fn1 against Baranyai, his police chief, the Mayor and the members of Council.
The gravemen of the complaint was that Baranyai, by his many unlawful actions, had violated the constitutional rights of Pennsylvania citizens, some of whom resided in Millvale. Some 31 separate incidents were described. The 31 incidents included actions taken against the four named plaintiffs as well as actions taken against others. The complaint also charged that the Borough defendants, including the police chief, refused to exercise control over Baranyai's pattern of unconstitutional behavior despite their knowledge of his actions and their ability to restrict his activities. The complaint, which included class action allegations, sought injunctive relief against all the defendants.
Prior to trial, the individual plaintiffs moved for class certification. The district court denied class certification
for the reason that the Commonwealth of Pennsylvania as parens patriae is representing the citizens of the State generally in this action and if there is any further need for class action which may later appear in this case plaintiff's [sic] may move at that time for reconsideration of the same.
The non-jury trial of this action commenced on April 23, 1979 after a year of extensive discovery by the parties.*fn2 The court heard some 14 days of testimony and made some 44 Findings of Fact. Because these findings are separately set forth in the district court's opinion,*fn3 we will not recount them in detail here. It is sufficient for our purposes to note several incidents that typify the conduct found by the district court. The court found that Baranyai had brutalized and unlawfully assaulted plaintiff Mages by beating him with his fists and with a blackjack, and by threatening to shoot him with a shotgun and revolver while Mages was handcuffed and confined in the Millvale police station.
The court also found that Baranyai had struck one Richard Stefanik about the face and head with a flashlight while Stefanik was in his custody and that he had brutalized one David Burchill by beating him with a nightstick after Burchill had been handcuffed and was under Baranyai's control. Other similar incidents of assault, unlawful arrest, illegal searches, unlawful detentions, harassment, intimidations, and retaliation are catalogued by the district court in its findings that Baranyai engaged in unconstitutional conduct on a number of occasions.*fn4
The district court also found that the other defendants had knowledge of Baranyai's acts and approved of them and that their unconstitutional conduct was likely to continue unless all defendants were enjoined. On November 16, 1979 the district court entered its order which essentially enjoined all the defendants from continuing conduct such as the conduct which gave rise to this suit. A copy of the November 16, 1979 order of the district court is set forth in full in the margin.*fn5 Thereafter, two modifications of the district court's order, the last entered by a judge of this court, permitted Millvale to substitute, for the provisions of paragraph 5 of the order, Millvale's obligation as security against any future constitutional conduct by Baranyai.
42 U.S.C. § 1983 provides:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
As an "other person", the Commonwealth as a plaintiff brought this action against the named defendants for injunctive relief.
To this point, judicial consideration of § 1983 as a vehicle for redressing rights implicating states or their instrumentalities has focsed on the question of whether such state entities may be sued as defendants under § 1983. See, e.g., Skehan v. Bd. of Trustees of Bloomsburg State College, 590 F.2d 470, 491 (3d Cir. 1978); Ex parte Young, 209 U.S. 123 (1908); Delman v. Jordan, 415 U.S. 651 (1974); Alabama v. Pugh, 438 U.S. 781 (1978); Quern v. Jordan, 440 U.S. 332 (1979). Boviously, in this case, where the Commonwealth is not a defendant, but is rather a plaintiff, cases which analyze § 1983 in terms of defendants are of limited assistance. Thus, rather than discuss "defendant" cases, we will direct our attention to the question of whether a state may be a plaintiff or "other person" under § 1983.
Because of the posture of this case, where only the Commonwealth and certain individuals are plaintiffs, we must initially determine whether the Commonwealth of Pennsylvania has standing to seek relief in either (1) a personal or (2) a representative capacity.
We turn first to the question of whether the Commonwealth in its personal capacity may sue the municipal officials named as defendants under 42 U.S.C. § 1983. To qualify as a § 1983 plaintiff, the Commonwealth must satisfy the statutory classification of being a "citizen of the United States or other person ... injured...." No claim has ever been made, nor could it be, that the Commonwealth is a "citizen of the United States". Therefore to sustain its plaintiff status, the Commonwealth must come within the rubric of an "other person" who has been injured.
The district court did not find it necessary to resolve the question of the Commonwealth's standing to sue in its personal capacity since it had held in a memorandum opinion of February 24, 1978 "that there was no showing that the Commonwealth of Pennsylvania had been injured personally by the series of events alleged in the complaint...." Commonwealth of Pennsylvania v. Porter, 480 F. Supp. 686, 694-95 (W.D. Pa. 1979). Thus, the district court, without addressing the status of the Commonwealth as an "other person", disposed of the Commonwealth's personal standing on an alternate ground: a failure to demonstrate injury. The district court's holding in this respect, however, was not critical to the continuation of the litigation because that court then allowed the action to proceed with the Commonwealth as a plaintiff under a parens partriae theory. We discuss this feature of the district court's holding in a subsequent section of this opinion.
Whether or not the Commonwealth may sue as a plaintiff under § 1983, unlike the question of whether or not it may be sued as a defendant, does not require us to address considerations of Eleventh Amendment immunity. Our task is limited to determining whether Congress intended to include states among those "other person[s]" entitled to bring actions under § 1983.
No Court of Appeals has had the occasion to address this question*fn6 but an examination of § 1983 itself and a review of the legislative history that was examined in Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), leads to the conclusion that states were never deemed to fall within ...