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March 24, 1981

Maurice BELL

The opinion of the court was delivered by: GILES



 Plaintiff, Maurice Bell, who is white, is a resident of the City of Philadelphia and brings suit against Police Officer James Gamble, who is black, Police Commissioner Joseph O'Neill and the City of Philadelphia. The action involves claims arising out of an incident which occurred on the morning of December 12, 1976, in which plaintiff was shot by defendant Gamble and was permanently paralyzed. Plaintiff asserts claims under the Civil Rights Acts of 1866 and 1871, 42 U.S.C. §§ 1981 and 1983, and the Fourteenth Amendment to the United States Constitution, as well as a pendent state claim for assault and battery. *fn1" Before the court is a motion for summary judgment filed on behalf of defendants Joseph O'Neill (hereinafter "O'Neill") and the City of Philadelphia (hereinafter "City") pursuant to Fed.R.Civ.Pro. 56. The claims which are the subject of the present motion are (1) a federal claim against O'Neill based upon 42 U.S.C. § 1983, and (2) federal claims against the City based upon 42 U.S.C. §§ 1981 and 1983, and the Fourteenth Amendment.

 Defendants object that this court lacks subject matter jurisdiction as to O'Neill and the City. In Bell v. Hood, 327 U.S. 678, 681-682, 66 S. Ct. 773, 775-776, 90 L. Ed. 939 (1946), the Supreme Court held that a federal district court has subject matter jurisdiction whenever the pleadings allege a controversy arising under the Constitution or laws of the United States. Here, plaintiff bases jurisdiction on 28 U.S.C. §§ 1331 and 1343, asserting deprivation of various civil rights in violation of the Constitution and in violation of two federal statutes. Accordingly, this court has subject matter jurisdiction. See also Hagans v. Lavine, 415 U.S. 528, 538, 94 S. Ct. 1372, 1379, 39 L. Ed. 2d 577 (1974).

 In support of their motion for summary judgment, defendants contend that (1) the City cannot be held liable on an implied cause of action under the Fourteenth Amendment; (2) plaintiff has failed to raise a question of material fact pertaining to any theory of defendants' liability under § 1983, and therefore defendants are entitled to summary judgment; and (3) the City cannot be held vicariously liable under § 1981 because defendant Gamble's actions did not amount to a § 1981 offense. In response, plaintiff contends there is a question of fact whether Gamble was making an arrest at the time of the shooting and was acting under color of state law. Alternatively, plaintiff submits that the facts establish that he is entitled to summary judgment on this issue.

 Plaintiff urges that there is also a material factual dispute whether Gamble's conduct was a natural result of a "custom and practice" of police abuse, excessive force, and harassment on the part of the Philadelphia Police Department in violation of his constitutional rights. Allegedly such a practice was authorized or acquiesced in by the City and O'Neill thereby subjecting them to liability under § 1983. Plaintiff asserts that O'Neill is liable in his supervisory capacity as police commissioner by virtue of alleged gross negligence in executing his statutory duties to train, equip, maintain, supervise and discipline Philadelphia policemen. As to the § 1981 claim, plaintiff contends that there is sufficient evidence of racial animus to support a theory of respondeat superior against the City.

 Alternatively, plaintiff submits that the undisputed facts entitle him to summary judgment on the § 1983 claim.


 For purposes of the motion for summary judgment, defendants have agreed to the following summary of the events giving rise to this litigation, as set out in plaintiff's memorandum:

"On December 12, 1976, at approximately 3:00 to 3:30 a.m., the plaintiff, Maurice Bell, was walking down Frankford Avenue, to his home which is located on the intersection of Castor and Frankford Avenue, in the City of Philadelphia. When he arrived at the corner, diagonally across from his home, he observed a large black male, standing at what appeared to be the front steps of his porch. The plaintiff having resided in this predominantly white area of Philadelphia for a number of years was suspicious of the black male's close proximity to the plaintiff's home and family. After a short verbal exchange with the black male, who was later determined to be the defendant, Police Officer James Gamble, plaintiff, Maurice Bell, ran into his home to check on the safety of his family."
"The plaintiff, Maurice Bell, when satisfied that all was well, went downstairs, put on his pajamas, and turned on the television. A short time later, plaintiff heard clanging outside his home and opened the door. He observed the defendant Gamble banging an object, later determined to be a nightstick, on a metal pole. Plaintiff Bell requested that defendant Gamble stop, again both began an abusive verbal exchange and defendant Gamble told the plaintiff to come out and make him stop it. Plaintiff re-entered his home, put his pants on over his pajamas and came outside; whereupon defendant Gamble had crossed the street, and again was banging on a pole. Defendant Gamble again told plaintiff Bell to come on over and make him stop. Plaintiff Bell, fearful of the defendant Gamble and knowing that a police station was across the street, and having observed an object which he thought might have been a pipe, picked up a four foot coal shovel and walked toward the defendant. The verbal exchange continued between the plaintiff and the defendant."
"Plaintiff approached the defendant and when he got within about six feet of the defendant Gamble, the defendant lunged at the plaintiff, swinging his nightstick which plaintiff Bell blocked with his shovel. Defendant Gamble then turned and ran towards the police station. Plaintiff Bell also ran towards the police station."
"The entrance to the police station has a set of double doors, a landing, five steps, another landing and another set of double doors. Defendant Gamble entered the first set of doors, ahead of the plaintiff. As plaintiff started to enter the first set of doors, plaintiff observed the defendant Gamble go through the second set of doors, it appeared to plaintiff that defendant Gamble fell, but plaintiff was not certain because of the door shutting after the defendant blocked his view. Plaintiff then opened the second set of doors, in order to go into the police station and have the defendant Gamble arrested. When plaintiff opened the second set of doors, the defendant Gamble's feet were stretched across the doorway, and plaintiff had to jump over defendant's legs. When plaintiff was turning around to confront the defendant and call for assistance, plaintiff Bell observed the defendant's holster and pistol, and was then shot twice, once in the groin and once in the stomach, the second shot severing his spinal column." Defendant Gamble admittedly never identified himself as a police officer and never asked the plaintiff to halt, stop or warn the plaintiff of his impending action."

 In addition, the court must assume as true plaintiff's deposition testimony that as he jumped over Gamble's legs, he still had the shovel in his hands, and Gamble was rolling over from his side to his back; that when he came down, he did not land on Gamble, but only saw Gamble's holster as Gamble was rolling over. (Plaintiff's deposition, N.T. 65-66, 79, 80). Within seconds thereafter he recalls being shot as he was attempting to back pedal, shovel in hand, and that he was brought down by a second shot while still back pedalling. (Id., N.T. 80-81).

 Gamble testified at his deposition that he had run from plaintiff for his own safety after his nightstick broke; that plaintiff chased him swinging the shovel, striking him in the head as he entered the outside doors of the police station and again about the legs as he fell on the landing inside the first set of doors; that he attempted unsuccessfully to ward plaintiff off with a revolver shot; that he crawled up the steps through the second set of doors with his gun drawn; and that he fired at plaintiff twice in rapid succession as plaintiff came at him through the second set of doors out of fear for his own safety. (Gamble's deposition, N.T. 42-49).

 It is then undisputed that the shooting occurred almost immediately after plaintiff came through the second set of doors as Gamble was on the floor rolling onto his back, and as plaintiff was confronting him holding the four foot coal shovel. Id. at 66.


 In applying Rule 56 of the Federal Rules of Civil Procedure *fn2" , the Supreme Court has stated that it "(Authorizes) summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S. Ct. 724, 728, 88 L. Ed. 967 (1944). Accord, Hurtado v. U. S., 410 U.S. 578, 587-588 n.8, 93 S. Ct. 1157, 1163-1164 n.8, 35 L. Ed. 2d 508 (1973). In line with this view, the Third Circuit has said: "The law is clear that one who moves for summary judgment has the burden of demonstrating that there is no genuine issue of fact." Fairbanks, Morse & Co. v. Consolidated Fisheries Co., 190 F.2d 817, 824 (3d Cir. 1951). Accord, Ettinger v. Johnson, 556 F.2d 692, 696-697 (3d Cir. 1977). Unless this court can conclude as a matter of law that defendants are insulated from liability and there is no genuine issue of material fact, the motion must be denied.

 A. Fourteenth Amendment Claim

 Plaintiff advances the theory of an implied cause of action directly against the City under the Fourteenth Amendment. Defendants contend that no such cause of action exists. The following language of the Third Circuit in Rogin v. Bensalem Township, 616 F.2d 680, 686 (3d Cir. 1980) is instructive:

There is no occasion to decide, in the present case, whether the Fourteenth Amendment authorizes a direct cause of action for damages, however, because (plaintiff) has alleged causes of action under § 1983 that are premised on (plaintiff's) constitutional claims. Indeed, § 1983 was designed to afford plaintiffs a cause of action for constitutional violations on the part of local governmental bodies and other state officials. Bivens ( Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619) teaches that the existence of an effective and substantial federal statutory remedy for the plaintiffs obviates the need to imply a constitutional remedy on their behalf.

 (footnotes omitted). Accord, Mahone v. Waddle, 564 F.2d 1018, 1024-1025 (3d Cir. 1977), cert. denied, 438 U.S. 904, 98 S. Ct. 3122, 57 L. Ed. 2d 1147 (1978). The Court of Appeals said that it would be a redundant and wasteful use of judicial resources to permit the adjudication of both constitutional and § 1983 claims ...

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