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BORENSTEIN v. CITY OF PHILADELPHIA

October 11, 1984

Jules BORENSTEIN
v.
CITY OF PHILADELPHIA, Russell Briggs



The opinion of the court was delivered by: POLLAK

 LOUIS H. POLLAK, District Judge.

 Plaintiff Jules Borenstein filed this civil rights action against the City of Philadelphia and Officer Russell Briggs on May 2, 1984. The complaint alleges claims against the defendants under 42 U.S.C. § 1983 due to the allegedly unlawful arrest and confinement of plaintiff in May of 1982. Plaintiff also asserts pendent state law claims against defendants for assault, battery, false arrest, false imprisonment, malicious prosecution, intentional infliction of emotional distress, outrageous conduct, invasion of privacy, negligence, gross negligence and negligent hiring, retention and supervision.

 On May 25, 1984, defendants filed the motion to dismiss presently pending before me. Plaintiffs responded to that motion on July 20. Defendants have not replied to plaintiff's submission.

 Defendants attack the complaint on numerous grounds. I will discuss each of defendants' arguments in the order in which they are asserted.

 Defendants argue that plaintiff may not assert his claims directly under the Fourth, Fifth or Fourteenth Amendments of the Constitution. DiGiovanni v. City of Philadelphia, 531 F. Supp. 141 (E.D.Pa.1982); Jones v. City of Philadelphia, 481 F. Supp. 1053 (E.D.Pa.1979). However, the complaint does not attempt to raise claims directly under these constitutional provisions. The only reference to these amendments is found in para. 22 of the complaint which reads:

 
By these actions, defendants have deprived plaintiff of rights secured by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. § 1983.

 Moreover, the jurisdictional allegations in the complaint state only that the "action" is brought pursuant to 42 U.S.C. § 1983. Complaint para. 1. Thus, plaintiff has not sought to raise the types of claims which defendants seek to dismiss. *fn1"

 B. § 1983 Liability of the City of Philadelphia

 The motion to dismiss also contends that the complaint does not allege a policy or custom of the City of Philadelphia which is linked to the unlawful conduct. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In Monell, the Supreme Court determined that, although municipalities may be liable under § 1983, they could not be sued under that statute solely on the basis of vicarious liability. A plaintiff must establish that his injury is attributable either to an implicit or to an explicit policy or custom of the municipality.

 Also, the Court of Appeals for the Third Circuit has directed that civil rights complaints must be pleaded with specificity and may not merely make conclusory allegations of constitutional deprivations or the existence of municipal policies. E.g., Ross v. Meagan, 638 F.2d 646, 650 (3d Cir.1981) (per curiam); Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir.1976). Such complaints must contain some minimal factual presentation which supports the broad conclusions asserted.

 Only three paragraphs of the complaint are relevant to the determination whether these requirements have been met in the claims against the City.

 
18. Defendant City of Philadelphia, as a matter of policy and practice, has intentionally and deliberately failed to adequately discipline, train or otherwise direct police officers concerning the right of citizens, thereby causing the defendant ...

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