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DIGIOVANNI v. CITY OF PHILADELPHIA

February 4, 1982

Kevin DiGIOVANNI, Plaintiff,
v.
CITY OF PHILADELPHIA, Morton B. Solomon, Police Officer Joseph Schuck, and James Schuck, Defendants



The opinion of the court was delivered by: POLLAK

MEMORANDUM n*

This civil rights action arises out of an incident on the evening of August 7, 1980, in which plaintiff DiGiovanni alleges that he was maliciously beaten by two individuals, one a police officer of the City of Philadelphia, and was then unlawfully arrested and detained. Plaintiff has brought this action against four defendants-Joseph Schuck, the Philadelphia police officer, and James Schuck, *fn1" his brother, who were involved in the incident; Morton Solomon, the Police Commissioner of Philadelphia at the time of the incident; and the City of Philadelphia. The defendants have moved to dismiss, claiming that the complaint fails to state a cause of action against any of them.

 I.

 In his complaint, plaintiff alleges that on the evening of August 7, 1980, at approximately 2:00 A.M., he was driving on Woodhaven Road in Philadelphia, turned onto Millbrook Road and stopped at a traffic light directly behind the vehicle driven by police officer Joseph Schuck and his brother. For reasons not set forth in the complaint or in defendants' response, officer Schuck and his brother then got out of their car, and plaintiff and his passenger, Russell Kirko, also got out of their vehicle and an altercation ensued in which plaintiff was injured. Following this incident, officer Schuck arrested plaintiff and took him to the Eighth District Police Station where he was charged with, inter alia, assault, disorderly conduct and resisting arrest. Subsequently, these charges were either dismissed or plaintiff was found not guilty. With respect to Police Commissioner Solomon, plaintiff further alleges that he knew of and acquiesced in a de facto police department policy of summarily punishing and unlawfully arresting individuals who resist police orders or who are suspected of minor traffic violations. In addition, plaintiff contends that this de facto policy is well known and that the City has failed to take any steps to correct police department practice.

 On the basis of these allegations, which must be assumed to be true for purposes of deciding defendants' motion to dismiss, plaintiff contends that defendants are liable under 42 U.S.C. §§ 1981 and 1983, and the fourteenth amendment, for unlawful arrest, excessive use of force and malicious prosecution, and also under a variety of pendent state law claims including, inter alia, assault, malicious prosecution and false arrest. The defendants have attacked the sufficiency of plaintiff's complaint on a number of grounds.

 II.

 The central issue is whether plaintiff's complaint alleges facts sufficient to support his claims. All civil actions are governed by the requirement that the complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The Supreme Court has made clear that in assessing the sufficiency of complaints, courts must keep in mind that the Federal Rules contemplate a liberal notice pleading policy and that, therefore, so long as a claim appears to have some factual support, it should not be dismissed and instead any deficiencies may be corrected by amendments to the complaint. See Conley v. Gibson, 355 U.S. 41, 47-48, 78 S. Ct. 99, 102-03, 2 L. Ed. 2d 80 (1957). However, in civil rights cases, the Third Circuit has developed a somewhat more stringent standard in part because of the likelihood that a substantial number of these cases may be frivolous or should be litigated in the state courts. See Kauffman v. Moss, 420 F.2d 1270, 1276 n.15 (3d Cir.), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970). Under this more stringent standard, complaints which contain only broad and conclusory allegations that fail to state specific facts upon which the substantiality of the claim can be assessed may be dismissed. See Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978); Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976); Kedra v. City of Philadelphia, 454 F. Supp. 652, 675 (E.D.Pa.1978). In addressing the question of whether plaintiff's complaint survives under this standard, I conclude that the answer must vary depending on the theory of liability advanced by plaintiff.

 A. Section 1981 Claims

 Plaintiff contends that the defendants' actions constitute a violation of 42 U.S.C. § 1981. However, as the Third Circuit, sitting en banc, recently held, proof of discriminatory purpose and intent is a necessary element of a claim brought under section 1981. Croker v. Boeing Co., 662 F.2d 975 (1981). Because the complaint contains no factual allegations of discriminatory intent, plaintiff's claim based on section 1981 against all defendants will be dismissed. See Jones v. City of Philadelphia, 491 F. Supp. 284, 289 (E.D.Pa.1980) (racial animus is necessary to sustain a § 1981 claim); Croswell v. O'Hara, 443 F. Supp. 895, 897 (E.D.Pa.1978).

 B. Fourteenth Amendment Claims

 In addition to his statutory claims brought under 42 U.S.C. §§ 1981 and 1983, plaintiff has also asserted causes of action based directly on the first, fourth, fifth, and fourteenth amendments. At the outset, it must be noted that plaintiff's claims under the first, fourth and fifth amendments are cognizable only through the application of the fourteenth. While the Third Circuit has not yet decided the question, it has been held several times in this court that where a plaintiff has stated a claim under the federal civil rights statutes sufficient to vindicate his constitutional rights, there is no need to imply a constitutional cause of action directly under the fourteenth amendment. See Williams v. Township of Bristol, No. 81-1386, slip op. at 2 (E.D.Pa. Nov. 10, 1981); Baffa v. Black, 481 F. Supp. 1083, 1085 (E.D.Pa.1979); Locust v. DiGiovanni, 485 F. Supp. 551 (E.D.Pa.1980); Kedra v. City of Philadelphia, 454 F. Supp. 652, 677-78 (E.D.Pa.1978). Therefore, these claims will be dismissed.

 C. Section 1983 Claims Against Police Officer Schuck

 The most supportable claims brought by plaintiff appear to be those based on 42 U.S.C. § 1983. It is well settled that a police officer who makes an arrest based on probable cause or with a good faith belief that there was probable cause may not be held liable under section 1983. It is equally clear, however, that an officer is liable under section 1983 for an arrest lacking probable cause or involving the excessive use of force without any good faith belief that such force was reasonably necessary to protect the officer's safety. See Kedra, supra; Baffa v. Black, supra. Cf. Black v. Stephens, 662 F.2d 181 (3d Cir. 1981). Judging the factual allegations contained in the complaint against these ...


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