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WALKER v. COMAY

July 29, 1986

OLIVER L. WALKER, SR., Plaintiff,
v.
DEBORAH E. COMAY, individually and as Magistrate, City of Pittsburgh, Defendant


Maurice B. Cohill, Jr., Chief Judge.


The opinion of the court was delivered by: COHILL

Presently before the Court is Defendant's Motion to Dismiss Plaintiff Oliver L. Walker Sr.'s Petition for Injunctive Relief and Monetary Damages which Plaintiff filed pro se.

 Plaintiff states that he is a real estate broker with a realty company located in Pittsburgh, Pennsylvania. He owns property located at 1616 Lincoln Avenue. Defendant is a judge of the Pittsburgh Magistrates Court. Plaintiff states that the Allegheny County Health Department and the Department of Animal Control brought actions against him alleging housing code and animal ordinance violations. He alleges that during hearings on these actions, Defendant refused to accept any testimony Plaintiff offered on these charges. Instead, he alleges that she accepted the charges without requiring proof, and imposed upon him excessive fines. In this action, brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1985, Plaintiff argues that Defendant's conduct has violated his civil rights. Plaintiff seeks to permanently enjoin the Defendant and the Allegheny Health Department (ACHD), and the Department of Animal Control (DAC) from issuing future summons and complaints against him. Neither the ACHD nor the DAC are defendants in this action. In addition, Plaintiff asks the Court to issue an order impounding Defendant's court records in order to ascertain the amounts and frequency of fines imposed upon black defendants. Finally, Plaintiff seeks punitive and compensatory damages.

 In evaluating a motion to dismiss, the allegations of the complaint and all reasonable inferences must be accepted as true and viewed in the light most favorable to the non-moving party. Miree v. DeKalb County, 433 U.S. 25, 27, 97 S. Ct. 2490, 2492, 53 L. Ed. 2d 557 (1977); Empire Abrasive Equipment Corp. v. H. H. Watson, Inc. 567 F.2d 554, 557 (3d Cir. 1977). A complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts that entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).

 Although pro se litigants should not be denied the opportunity to state a civil rights claim because of technicalities, Kauffman v. Moss, 420 F.2d 1270, 1276 (3d Cir.), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970), they must still comply with a minimum pleading standard. Green v. Commonwealth of Massachusetts, 108 F.R.D. 217, 218 (D.C. Mass. 1985).

 A. Section 1981 Cause of Action

 Section 1981 grants to all persons equal rights under the law. 42 U.S.C. § 1981 (1982). Intentional racial discrimination is a necessary element of a § 1981 claim. Hood v. New Jersey Dept. of Civil Service, 680 F.2d 955, 959 (3d Cir. 1982); Bronze Shields, Inc v. N.J. Dept. of Civil Serv., 667 F.2d 1074, 1086 (3d Cr. 1981); Davis v. United States Steel Corp., 544 F. Supp. 253, 255 (E.D. Pa. 1982). A pro se litigant in a § 1981 claim must allege at least some facts which demonstrate that his race was the reason for the Defendant's actions. Jafree v. Barber, 689 F.2d 640, 643 (7th Cir. 1982).

 In paragraph seventeen of his complaint, Plaintiff states that he is black. However, Plaintiff admits in this same paragraph that he has no knowledge as to whether Defendant's conduct was racially motivated. Because the main thrust of § 1981 is to prohibit discrimination based on race, Bell v. Brennan, 570 F. Supp. 1116, 1118 (E.D. Pa. 1983), and because the Plaintiff fails to allege intentional racial discrimination, his complaint fails to state a claim upon which relief can be granted under § 1981.

 B. Section 1983 Cause of Action

 Section 1983 provides a cause of action against individuals who, acting under color of state law, deprive another of a constitutional right. 42 U.S.C. § 1983 (1982). To maintain a § 1983 cause of action, a plaintiff must allege that a person acting under color of state law deprived him of some right, privilege or immunity guaranteed by the Constitution or laws of the United States. Howell v. Cataldi, 464 F.2d 272, 279 (3d Cir. 1972); Gans v. Gray, 612 F. Supp. 608, 612 (E.D. Pa. 1985). However, the doctrine of judicial immunity protects those acting in a judicial capacity from the § 1983 claim for money damages unless they act in a clear absence of jurisdiction over the subject matter. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978); DiRuggiero v. Rodgers, 743 F.2d 1009, 1021 (3d Cir. 1984).

 The Defendant, as a judge of the Pittsburgh Magistrates Court, had jurisdiction over the proceedings involving Plaintiff's housing code and animal ordinance violations. 42 Pa. C.S. § 1143(A)(3) (Purdon 1981) provides that the Pittsburgh Magistrates Court shall have jurisdiction ". . . for the recovery of fines and penalties imposed by any ordinance of the City of Pittsburgh, or by any ordinance or regulation relating to housing and health administration and enforced by a county health department . . . ." Id. Because the Defendant had jurisdiction over the subject matter pursuant to this section, Plaintiff's claim for money damages is barred by the doctrine of judicial immunity.

 In addition, however, Plaintiff seeks prospective injunctive relief for which judicial immunity is no bar. See Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984); Georgevich v. Strauss, 772 F.2d 1078, 1089 (3d Cir. 1985); DiRuggiero v. Rodgers, 743 F.2d 1009, 1021 (3d Cir. 1984). In order to have standing to seek injunctive relief, a plaintiff must allege an actual "case or controversy" by demonstrating that he is in immediate danger of sustaining some direct injury. U.S. Const. art. III; City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 75 L. Ed. 2d 675, 103 S. Ct. 1660 (1983); Flast v. Cohen, 392 U.S. 83, 94-101, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968); Weiser v. Koch, 632 F. Supp. 1369, slip op. at 11-13 (S.D.N.Y. April 15, 1986). Allegations of abstract, conjectural, or past injury are insufficient to impart the necessary standing to sue. Lyons, 461 U.S. at 101-02; Rizzo v. Goode, 423 U.S. 362, 46 L. Ed. 2d 561, 96 S. Ct. 598 (1976); O'Shea v. Littleton, 414 U.S. 488, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974); Biggs v. Block, 629 F. Supp. 1574, slip op. at 9-10 (E.D.N.Y. March 20, 1986). In his complaint, Plaintiff does not claim that he will be subjected to Defendant's alleged unconstitutional practices in the future. Rather he alleges only that he has been subjected to past unconstitutional behavior which does not in and of itself amount to the real and immediate threat of injury necessary to make out a case or controversy with Defendant. See Biggs, slip op. at 9-10. Plaintiff, therefore, has failed to demonstrate that he has standing to seek the prospective injunctive relief he asked this Court to order, and his claim for such relief will be dismissed.

 For the foregoing reasons, we conclude that the Plaintiff has failed to state a claim upon which relief ...


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