The opinion of the court was delivered by: LUONGO
Vincent Sambrick initiated the present civil rights action against George Dewees, a Norristown police officer, and the Borough of Norristown. Plaintiff contends that on July 9, 1985, defendant Dewees arrested the plaintiff on a spurious charge and used excessive and unnecessary force while taking plaintiff into custody, causing him to suffer physical and emotional harm. The complaint alleges that the defendants deprived plaintiff of his civil rights in contravention of sections 1983, 1985, 1986 and 1988 of Title 42 of the United States Code and the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution. The complaint also avers that defendants' conduct constituted 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 under Pennsylvania law. Sambrick seeks a declaratory judgment, injunctive relief, and monetary damages.
Defendants have submitted a motion to dismiss all federal and state claims against the Borough of Norristown and the § 1985 and § 1986 claims against Officer Dewees pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted. For the reasons stated below, defendants' motion will be granted. Additionally, the state law claims for official oppression, false swearing to authorities, negligent infliction of emotional distress, negligence and gross negligence against Officer Dewees will also be dismissed.
Defendants contend that the complaint fails to set forth a sufficient factual basis to support a § 1983 claim against the Borough of Norristown. Plaintiff argues that his complaint should not be dismissed unless this court concludes beyond a doubt that he will be unable to prove any set of facts which would support his claim. Although plaintiff may have correctly stated the generally accepted standard for judging the sufficiency of a complaint, see Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957), the Third Circuit has held that civil rights complaints must be pleaded with specificity. See, e.g., Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65 (3d Cir. 1986); Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976). The specificity requirement ensures that frivolous civil rights claims can be weeded out at an early stage. See Shirey v. Bensalem Township, 501 F. Supp. 1138, 1141 (E.D.Pa. 1980).
A § 1983 complaint against a municipality must allege (1) the existence of a custom or policy of the municipality which is of such long standing to have the force of law, and (2) that one of the municipality's employees violated the plaintiff's civil rights while acting pursuant to this custom or policy. See Monell v. Department of Social Services, 436 U.S. 658, 691-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); DiGiovanni v. City of Philadelphia, 531 F. Supp. 141, 145 (E.D.Pa. 1982). Additionally, the complaint must articulate a factual basis sufficient to support the requisite allegations. See LaPlant v. Frazier, 564 F. Supp. 1095, 1098 (E.D.Pa. 1983).
Plaintiff's allegations concerning the Borough of Norristown are as follows:
30. To Plaintiff's knowledge, other police officers present at the scene of the arrest and [sic] have verified Plaintiff's version of what took place to the community relations officer of the police department. However, after complaints to Borough officials of the misconduct, no disciplinary action has been taken against the defendant officer for use of excessive and unnecessary force. The failure of defendant Borough of Norristown to discipline the defendant officer for this and prior misconduct for use of excessive and unnecessary force demonstrates a tacit policy of the Borough condoning this misconduct and letting its police officers know that they will not be disciplined.
Plaintiff's averments do not state a § 1983 claim against the Borough of Norristown. The complaint fails to allege a custom or policy of the Borough with the requisite factual specificity. Although official inaction which occurs over a substantial period of time can constitute a custom or policy within the scope of § 1983, see Wilkinson v. Ellis, 484 F. Supp. 1072, 1091 (E.D.Pa. 1980), the complaint does not set forth facts which would support a finding that the Borough of Norristown, by failing to discipline Officer Dewees for past misconduct, condoned the use of excessive and unnecessary force by its police officers. The complaint does not allege that any of the Borough's supervisory employees were aware of defendant Dewees' alleged prior misconduct and fails to identify the employees of the Borough who were responsible for supervising and disciplining the Borough's police officers.
Plaintiff did allege that Borough officials had been informed of the incident which gave rise to the instant action and failed to take any disciplinary action. A single instance of inaction, however, unless committed pursuant to an official regulation, is insufficient to establish a custom or policy for the purposes of § 1983. See Losch v. Borough of Parkesburg, 736 F.2d 903, 911 (3d Cir. 1984).
Even if plaintiff had alleged that Dewees' supervisors had been aware of Dewees' alleged violent tendencies prior to the incident which gave rise to the instant case, the complaint would remain deficient, since it fails to identify any specific instances of Dewees' alleged prior misconduct. See Jones v. City of Philadelphia, 491 F. Supp. 284, 287 (E.D.Pa. 1980) ("The bare assertion of knowledge [of the prior unlawful acts of the defendant police officers], absent some factual recitation from which its source may be gleaned, will not insulate a civil rights complaint . . . from a motion to dismiss."); Chappelle v. Chase, 487 F. Supp. 843, 850 (E.D.Pa. 1980). I have held on previous occasions that general allegations of knowledge on the part of supervisory officials are insufficient to withstand a motion to dismiss. See, e.g., Croswell v. O'Hara, 443 F. Supp. 895, 897 (E.D.Pa. 1978); Schweiker v. Gordon, 442 F. Supp. 1134, 1140 (E.D.Pa. 1977).
Furthermore, plaintiff has not alleged that the constitutional violation complained of occurred as a result of a custom or policy of the Borough of Norristown. The complaint alleges that the Borough has repeatedly failed to discipline Officer Dewees. Negligent supervision of its employees cannot be a basis for the imposition of § 1983 liability on a municipality. See Schweiker v. Gordon, 442 F. Supp. at 1139. In order to properly plead the element of causation, plaintiff must allege that Officer Dewees deprived him of his civil rights while acting pursuant to a custom or policy endorsed by the Borough. See Wilkinson v. Ellis, 484 F. Supp. at 1086; Santiago v. City of Philadelphia, 435 F. Supp. 136, 152 (E.D.Pa. 1977). For all the foregoing reasons, plaintiff's § 1983 claims against the Borough of Norristown will be dismissed.
Section 1985, 1986 and 1988 Claims
Plaintiff has also alleged causes of action arising under 42 U.S.C. §§ 1985, 1986 and 1988.
The complaint does not specify the subsection of § 1985 upon which the plaintiff is relying. I will assume that plaintiff is proceeding pursuant to § 1985(3), since it appears to be the only subsection which could apply to the instant case.
Section 1985(3) provides a remedy for any individual who has been injured as a result of a conspiracy which was intended to deprive members of a class which includes the plaintiff of their equal protection rights. See 42 U.S.C. § 1985(3); Santiago v. City of Philadelphia, 435 F. Supp. at 155. The instant complaint is devoid of any mention of a conspiracy of any type. Therefore, plaintiff's § 1985 claims against both defendants will be dismissed.
Section 1986 creates a cause of action against persons who neglect to prevent a conspiracy which is actionable under § 1985. See 42 U.S.C. § 1986. A cause of action under § 1986 can proceed only if the plaintiff has properly alleged a § 1985 violation. See, e.g., Marino v. Bowers, 483 F. Supp. 765, 769 (E.D.Pa. 1980), aff'd, 657 F.2d 1363 (3d Cir. 1981). Since I have ...