Fourteenth Amendment. See DiGiovanni v. City of Philadelphia, 531 F. Supp. at 144. Section 1983 provides plaintiff with a sufficient remedy for the constitutional deprivations which have been alleged against Officer Dewees. Since it would be superfluous to allow the plaintiff to state a cause of action under the Fourteenth Amendment which simply mirrors a § 1983 cause of action, I will dismiss plaintiff's constitutional claims against Officer Dewees. See Jones v. City of Philadelphia, 481 F. Supp. 1053, 1056 (E.D.Pa. 1979).
Because I have determined that the plaintiff has not sufficiently alleged that his injuries resulted from conduct undertaken pursuant to a custom or policy of the Borough of Norristown, the Borough can only incur liability for the alleged misconduct of Officer Dewees pursuant to the doctrine of respondeat superior. Congress did not intend that municipalities be held vicariously liable under § 1983. See Monell v. Department of Social Services, 436 U.S. at 691. I have previously held that a cause of action cannot be implied under the Fourteenth Amendment to impose respondeat superior liability on a municipality, since allowing such an action to proceed would circumvent the rule of Monell. See Kedra v. City of Philadelphia, 454 F. Supp. 652, 678-79 (E.D.Pa. 1978). I see no reason to deviate from this position. Allowing the plaintiff to bring a Fourteenth Amendment action against the Borough of Norristown on a respondeat superior theory would undercut the statutory scheme which Congress has established under § 1983 to redress constitutional violations. See id. at 677-78; Jones v. City of Philadelphia, 481 F. Supp. at 1056. Accordingly, I will dismiss plaintiff's constitutional claims against the Borough of Norristown.
Plaintiff has attempted to invoke the pendent jurisdiction of this court over his state law claims. Sambrick alleges that the defendants are liable to him for the following Pennsylvania torts: assault and battery, false arrest, false imprisonment, malicious prosecution, abuse of process, official oppression, false swearing to authorities, intentional and negligent infliction of emotional distress, negligence and gross negligence.
The doctrine of pendent jurisdiction allows a federal court to adjudicate claims not otherwise within its jurisdiction if those claims arose out of the same events which gave rise to the claims within federal jurisdiction. When applying this doctrine, a court first must determine whether it has the power to hear the state law claims before it. Claims outside of the jurisdiction of the district court may be adjudicated along with the federal claims if all of the claims "derive from a common nucleus of operative fact." United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Even if this test has been satisfied, however, the statute conferring jurisdiction over the federal claim may restrict the scope of the claims which may be brought under it. See Aldinger v. Howard, 427 U.S. 1, 17, 49 L. Ed. 2d 276, 96 S. Ct. 2413 (1976). If there is power to hear the pendent claims, the decision whether or not to exercise jurisdiction over them is within the discretion of the district court. Factors which favor the exercise of pendent jurisdiction include judicial economy, convenience and fairness to litigants. See United Mine Workers v. Gibbs, 383 U.S. at 726-27. The pendent claims should be dismissed, however, if the exercise of jurisdiction over them would confuse the jury by presenting divergent theories of relief. Id.
Plaintiff has asserted a cognizable § 1983 claim against Officer Dewees over which this court has jurisdiction pursuant to 28 U.S.C. § 1343. The state claims asserted against Dewees arose out of the same events as those giving rise to the § 1983 claim. There is no statutory restriction on this court's jurisdiction to hear these claims. Thus, I have power to hear the state law claims against Officer Dewees. Adjudication of the pendent claims together with the § 1983 claim will promote judicial economy and convenience to the litigants. Plaintiff's claims for assault and battery, false arrest, false imprisonment, malicious prosecution, abuse of process and intentional infliction of emotional harm are similar to the § 1983 claim with respect to factual proof and legal theory.
Therefore, I will hear these pendent claims against defendant Dewees.
The remainder of plaintiff's state law claims are based on a negligence theory. Claims sounding in negligence are inconsistent and incompatible with civil rights claims and may confuse the jury. See Jones v. McElroy, 429 F. Supp. 848, 864-65 (E.D.Pa. 1977). See also Davidson v. Cannon, 474 U.S. 344, 106 S. Ct. 668, 88 L. Ed. 2d 677 (1986) (negligence cannot support a § 1983 cause of action). Accordingly, I will dismiss plaintiff's claims against Officer Dewees for the negligent infliction of emotional distress, negligence and gross negligence.
All of the state claims previously described have been asserted against the Borough of Norristown as well as against Officer Dewees. Because § 1983 suits based on the doctrine of respondeat superior have been foreclosed by the Monell decision, the jurisdictional reach of 28 U.S.C. § 1343, which provides this court with jurisdiction over § 1983 actions, has likewise been limited to preclude the exercise of federal jurisdiction over the state law claims against the Borough, since they are based on a respondeat superior theory. See Kedra v. City of Philadelphia, 454 F. Supp. at 682. There does remain a potential basis for hearing the plaintiff's state law claims against the Borough, however. These claims could be heard as pendent to the civil rights claims which were asserted directly under the Fourteenth Amendment. See id.
Although I have already determined that the Borough cannot be sued under the Fourteenth Amendment on a respondeat superior theory, I recognize that the Fourteenth Amendment claim is not insubstantial in a jurisdictional sense, since neither the Supreme Court nor the Third Circuit have decided whether such a cause of action is viable. See Kedra v. City of Philadelphia, 454 F. Supp. at 682; Gagliardi v. Flint, 564 F.2d 112, 114-16 (3d Cir. 1977), cert. denied, 438 U.S. 904, 57 L. Ed. 2d 1147, 98 S. Ct. 3122 (1978) (since Supreme Court has not foreclosed possibility of a cause of action under the Fourteenth Amendment imposing vicarious liability on municipalities, such a claim is "sufficiently substantial to vest the district court with federal question jurisdiction under 28 U.S.C. § 1331."). See also Mt. Healthy District Board of Education v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977); Patzig v. O'Neil, 577 F.2d 841 (3d Cir. 1978) (open question whether Fourteenth Amendment can support an action against a municipality based on theory of respondent superior). The pendent claims against the Borough arose from the same operative facts as those forming the basis of plaintiff's Fourteenth Amendment claim. Section 1331 of Title 28 of the United States Code, which grants this court jurisdiction over civil actions arising under the Constitution, does not preclude this court from hearing the pendent claims against the Borough. See Kedra v. City of Philadelphia, 454 F. Supp. at 682. Accordingly, I have the constitutional power to hear the pendent claims against the Borough.
However, as explained earlier, I have determined that allowing the plaintiff to proceed against the Borough on a respondeat superior theory under the Fourteenth Amendment would frustrate the civil rights enforcement scheme established by Congress, which prohibits federal litigation of vicarious liability claims against municipalities. See id. Allowing the plaintiff to litigate his state law claims against the Borough in this court would achieve the same result. Furthermore, since I dismissed all the federal claims against the Borough, I should dismiss the pendent claims against it as well. See United Mine Workers v. Gibbs, 383 U.S. at 726-27. I conclude, therefore, that I should not hear the state law claims against the Borough of Norristown.
Accordingly, those claims will be dismissed.
This 18th day of July, 1986, it is
1. Defendants' Motion to Dismiss all claims against the Borough of Norristown and to dismiss the § 1985 and § 1986 claims against Officer Dewees is GRANTED with leave to amend the complaint within 30 days.
2. The state law claims against Officer Dewees for official oppression, false swearing to authorities, negligent infliction of emotional distress, negligence, and gross negligence are DISMISSED.