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SCOTT v. RIEHT

June 9, 1988

John Scott
v.
Phillip J. Rieht, Badge #3714 and City of Philadelphia


Franklin S. Van Antwerpen, United States District Judge.


The opinion of the court was delivered by: VAN ANTWERPEN

FRANKLIN S. VAN ANTWERPEN, D.J.

 I have before me DEFENDANTS, CITY OF PHILADELPHIA AND POLICE OFFICER PHILLIP J. RIEHT'S MOTION TO DISMISS (filed February 2, 1988) and PLAINTIFF'S ANSWER thereto (filed February 22, 1988).

 Defendants have moved to dismiss this civil rights action which arose out of two incidents, one on the evening of October 8, 1986, and the other on the morning of October 23, 1986. The essential allegations of plaintiff are:

 1. At about 9:30 P.M. on October 8, 1986, at his home at 5936 Webster Street, Philadelphia, plaintiff was unlawfully arrested by Officer Rieht and other unnamed police officers.

 2. In the process of the arrest and during plaintiff's processing at the police station, derogatory and insulting comments were made by the police concerning plaintiff's race.

 3. Following the arrest, criminal charges were lodged against plaintiff by unnamed police officers, and such charges were without probable cause.

 4. At about 11:00 A.M. on October 23, 1986, at the Police Station at 55th and Pine Streets, during the preliminary hearing on the charges lodged on October 8, 1986, plaintiff was again unlawfully arrested.

 5. In addition, plaintiff alleges a practice of the Philadelphia police to punish insubordinate black people, and that the government of the City of Philadelphia, by taking no effective action to end the practice, has adopted it as a de facto policy.

 For the reasons set forth below, the motion will be granted in part and denied in part.

 Plaintiff has alleged four categories of claims, against the direct actors, the police officers, and an indirect actor, the City of Philadelphia. For the purpose of the motion, each category requires a distinct legal treatment with regard to each class of actor. The categories are: direct constitutional rights, rights under the Civil Rights Act *fn1" of 1866, 42 U.S.C. § 1981, rights under the Civil Rights Act *fn2" of 1871, 42 U.S.C. § 1983, and pendent common law claims under the laws of Pennsylvania. 42 U.S.C. § 1988 does not provide a separate cause of action, and deals with costs, attorney's fees and the underlying basis for civil rights actions.

 The general standard for pleading civil rights claims is a stringent one. The requirement is that the complaint state facts upon which the court can weigh the substantiality of the claim. Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967); Rotolo v. Burrough of Charleroi, 532 F.2d 920, 922 (3d Cir. 1976); and La Plant v. Frazier, 564 F. Supp. 1095 (E.D. Pa. 1983). Under the standard, plaintiff must state the conduct violating his civil rights, when and where the conduct occurred, and who was responsible. The complaint will be dismissed if it contains only vague and conclusory allegations. Boykins v. Ambridge Area School District, 621 F.2d 75, 80 (3d Cir. 1980); Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978). This standard operates to eliminate frivolous claims, and to guard the reputations of public servants who are particularly susceptible to these claims. U.S. v. City of Philadelphia, 644 F.2d 187, 206 (3d Cir. 1980).

 The direct constitutional claims must be dismissed as to both the individual defendants and as to the City because they are unnecessary. Plaintiff's claims against Officer Rieht and the unnamed police defendants are sufficiently vindicated through 42 U.S.C. § 1981 and § 1983. There is, therefore, no need to imply a cause of action directly under the Constitution. Rogin v. Bensalem, 616 F.2d 680, 686-87 (3d Cir. 1980); Mahone v. Waddle, 564 F.2d 1018, 1024 (3d Cir. 1977); DiGiovanni v. City of Philadelphia, 531 F. Supp. 141, 144 (E.D. Pa. 1982); Jones v. City of Philadelphia, 481 F. Supp. 1053, 1055-56 (E.D. Pa. 1979); Kedra v. City of Philadelphia, 454 F. Supp. 652, 679 (E.D. Pa. 1978). The direct constitutional claims against the City of Philadelphia fail for the same reasons. We have upheld the claim under 42 U.S.C. § 1981 against the City. Furthermore, if ...


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