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July 10, 1985

Ruth I. GANT, Plaintiff,
ALIQUIPPA BOROUGH and Daniel LaRUE, Defendants

The opinion of the court was delivered by: WEBER

 Plaintiff is a black woman, age 53, who has filed a civil rights complaint against the Borough of Aliquippa and a police officer, Daniel LaRue, employed by it. The complaint alleges that she was arrested by defendant LaRue without justification or probable cause, was severely beaten by him, manacled, taken by Borough police officers to the police station, detained, questioned, and denied necessary medical care while confined. She was later released. She alleges that as a result of this treatment she had to undergo hospitalization for 25 days.

 She alleges violations of 42 U.S.C. § 1983 and § 1985 by both defendants.

 Both defendants have moved for judgment on the pleadings and for summary judgment on all counts of the complaint. Plaintiff has moved for leave to amend the complaint to supply some of the details whose absence are the grounds of defendants' motions for judgment on the pleadings. Defendants oppose the motion to amend on the grounds of lateness, further delay, the necessity of further discovery, and the like. Any delay in this case is as much the fault of defendants as of plaintiff; the court can see no possible surprise to defendants or need of further discovery because the matters added by amendment were disclosed during the discovery period and are equally known and available to defendants as to plaintiff. At any rate we would not dismiss this complaint on the pleadings without an allowance to plaintiff to amend. The Federal Rules of Civil Procedure provide that leave to amend be liberally allowed; we see nothing particularly liberal in our allowance.

Where the entire record reveals facts susceptible of inferences that would justify an amendment of the pleadings and save the action, a motion for summary judgment should not be granted, but the party against whom the motion is directed should be afforded an opportunity to amend his faulty pleadings.

 Castner v. First National Bank, 278 F.2d 376, 384 (9th Cir. 1960). The amended complaint sets forth in considerable narrative detail the material generally covered in brief summary form in the complaint.

 Considerable discovery has been employed here. The defendants' motions and plaintiff's response are documented in detail, and all are extensively briefed.


 (a) The 1983 claim :

 LaRue argues that while plaintiff has properly alleged that he was acting under color of state law and that she was deprived of the rights, privileges and immunities secured her by the constitution, nevertheless she was not deprived of these without due process of law because adequate state remedies are available to her by civil actions for assault, battery, false arrest and false imprisonment against Officer LaRue. This is an extreme extension of the rule of Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1980). That case involved the procedural due process claim of a prisoner whose model building kit was lost in the prison post office. The Court held that not all deprivations of rights to liberty and property are so egregious as to amount to constitutional deprivations and held that the proper inquiry was whether proper post-deprivation due process was available. It found that it was in a simple and readily available state remedy for recompense for the loss of property.

 But plaintiff here is not alleging a due process claim. She alleges a claim for a direct and intentional invasion of her substantive right to the constitutional guarantees, the right to be free from violence and injury by the state's own agents. As such she has a right of action against the officer under Section 1983. This complaint does not allege a simple tort action against a state officer, but a deliberate and intentional invasion of a substantive constitutional right. Whether or not that allegation can be sustained requires the production of evidence of all the surrounding circumstances.

 (b) The 1985(3) claim :

 Defendant LaRue argues that the conspiracy claim against him must fail because plaintiff has failed to come forth with any evidence showing a prior agreement between LaRue and other police officers or representatives of the Borough. Nevertheless she has pleaded that she was arrested by LaRue, put into the custody of other police officers, and detained and interrogated by them. Conspiracy can rarely be proven by direct evidence of agreement; rather it largely depends on the circumstances and this is a matter of fact which must be determined by trial. Adickes v. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 ...

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