upon constitutional violations of the defendant police chiefs must be dismissed.
The complaint also seeks, in Count II, to impose liability for the conduct of the police officers on the municipal defendants under a respondeat superior theory. In light of Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), this claim is "simply incredible". Buskirk, supra at 251. The Supreme Court therein held that local governments may not be found liable under a theory of respondeat superior for constitutional violations of their employees except where the injury complained of was caused by conduct performed in accordance with "official municipal policy of some nature". Monell, supra at 691; Hawk v. Brosha, 590 F. Supp. 337, slip op. at 3 (E.D. Pa. 1984). Where, as here, no such municipal policy is alleged, the claims shall be dismissed.
42 U.S.C. §§ 1985, 1986
The plaintiff has additionally brought this action pursuant to 42 U.S.C. § 1985(2) and (3). Although the complaint does not specify which part of section 2 it is based upon, the facts alleged tend to support a claim under the second part only. To establish a cause of action under 42 U.S.C. § 1985(2) and (3), the plaintiff must allege facts sufficient to show that the defendants conspired to deny him his right of equal protection of the laws or of equal privileges and immunities under the laws. Moreover, the Supreme Court has required that claims brought under both sections be supported by allegations that the conspiratorial acts were motivated by a "class-based, invidiously discriminatory animus". Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); Jones v. Kalita, No. 83-2597 slip op. at 2 (E.D. Pa. December 16, 1983). Neither the allegations nor the facts supporting them show the requisite motivation on the part of the defendants. In fact, plaintiff has not even alleged that the defendants conspired to carry out their acts. Nor would it appear that the facts support the existence of a conspiracy. For these reasons, we will dismiss plaintiff's § 1985 claim as frivolous. 28 U.S.C. § 1915(d).
Since a cause of action under 42 U.S.C. § 1986 is based upon a failure to prevent the wrongs discussed in § 1985, it must likewise be dismissed. Brawer v. Horowitz, 535 F.2d 830, 841 (3d Cir. 1976); Jones v. Kalita, supra at 2.
In summary, we will dismiss all federal claims against the defendant municipal entities and the defendant police chiefs since the complaint has not alleged facts sufficient to support any such claims as to them. Nor would it appear that such facts can be alleged. As regards the defendant police officers, we will dismiss without prejudice plaintiff's claims based upon the theories of illegal seizure and malicious filing of charges. Plaintiff will be given twenty (20) days to file an amended complaint, if he so chooses, which includes the additional factual allegations discussed previously in this memorandum. A dismissal will not be granted as to the excessive force claim against the police officers. The allegations that the officers used excessive force in subduing the plaintiff are sufficient to establish a colorable § 1983 claim as to them. However, all other federal claims against the police officers will be dismissed.
Pendent State Claims
Having dismissed all federal claims against Bethlehem Township, Freemansburg Borough, Police Chief Robert Barner and Police Chief Frank Vigilanti, we will likewise dismiss all pendent state claims directed at them. A district court has broad discretion in deciding whether to exercise its power of pendent jurisdiction. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Where, as here, the federal claims have been dismissed prior to trial, the state claims should also be dismissed. Id. To this end, Count III will be dismissed in its entirety, since it contains allegations of negligent conduct applicable to the defendant police chiefs and municipalities only. Contrarily, Count IV, which contains allegations of intentional tortious conduct, appears to be directed primarily at the remaining police defendants. We will not dismiss the state claims enumerated therein insofar as they apply to the police officers, since a colorable § 1983 claim has been established as to them. However, to the extent, if any, that the claims under Count IV concern the municipal or police chief defendants, they are dismissed.
An appropriate order shall follow.
AND NOW, this 28th day of March, 1984, IT IS ORDERED that:
1. the motions to dismiss of defendants Bethlehem Township, Freemansburg Borough, Police Chief Robert Barner and Police Chief Frank Vigilanti are GRANTED and all federal and state claims directed against them are DISMISSED with prejudice. To this end, Counts II and III of the complaint are DISMISSED in their entirety.
2. the motions to dismiss of defendants Officer William Leiser, Jr., Sergeant Ronald Clause, Officer James Brocious, Jr., and Officer Robert Nichols are GRANTED and the complaint is DISMISSED with prejudice insofar as it asserts claims against the defendant police officers under 42 U.S.C. §§ 1985 and 1986 and the First, Fourth, Eighth and Fourteenth Amendments to the United States Constitution. To the extent that the motions to dismiss of the defendant police officers are directed at plaintiff's claim of excessive force under 42 U.S.C. § 1983, the motions are DENIED. With respect to the plaintiff's claims of illegal seizure and malicious filing of criminal charges the police officers' motions are GRANTED and the claims are DISMISSED without prejudice to the filing of an amended complaint within twenty (20) days of the date of this order.