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AMNESTY AMERICA v. COUNTY OF ALLEGHENY

April 23, 1993

AMNESTY AMERICA, suing in its representative capacity on behalf of JANE DOES NOS. 1 through 60, and JANE DOES NOS. 10, 17, 26, 37, 47 and 52, suing on behalf of themselves, Plaintiffs,
v.
COUNTY OF ALLEGHENY (the "County"), CITY OF PITTSBURGH (the "City"), CHARLES R. KOZAKIEWICZ, Warden of the Allegheny County Jail, MAYER DEROY, Assistant Chief of the City Lockup at the time of the incidents complained of, being sued on behalf of themselves and a Defendant class of employees assigned to take custody of and process JANE DOES NOS. 10, 17, 26, and 52 at the Allegheny County Jail, Defendants.



The opinion of the court was delivered by: DONALD E. ZIEGLER

 ZIEGLER, District Judge.

 Pending before the court are several motions. First, plaintiffs have moved for certification of the defendant classes alleged in their third amended complaint. Second, the County defendants and the City defendants have filed separate motions to dismiss *fn1" plaintiffs' third amended complaint on various grounds. Third, defendants have moved to strike allegations contained in the caption of the third amended complaint and to strike the addendum which plaintiffs attached to the original complaint and incorporated by reference into the third amended complaint.

 This civil action arises out of the arrest of several anti-abortion demonstrators on March 11, 1989, at the Highland Building in the East Liberty section of Pittsburgh. Plaintiffs, females who were arrested on that date and who have thus far been proceeding anonymously, commenced this action for damages and injunctive and declaratory relief against the County of Allegheny and the Warden of the Allegheny County Jail (County defendants), the City of Pittsburgh and the Assistant Chief of the city lockup (City defendants), and approximately twenty-five unnamed County and City employees involved in the arrest and processing of plaintiffs.

 Plaintiff, Amnesty America, is suing in its representational capacity on behalf of Jane Does Nos. 1 through 60 and Jane Does Nos. 10, 17, 26, 37, 47 and 52 allege their own claims. As we read the third amended complaint, plaintiffs allege violations of the Fourth, Thirteenth and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, *fn2" a violation of 42 U.S.C. § 1985(3), *fn3" violations of 42 U.S.C. § 1994, *fn4" seek an award of attorneys' fees and costs under 42 U.S.C. § 1988, and seek a declaration that 18 Pa.C.S.A. § 509, as interpreted by the Pennsylvania Superior Court in Commonwealth v. Ogin, 373 Pa. Super. 116, 540 A.2d 549 (1988), appeal denied, 521 Pa. 611, 557 A.2d 343 (1989), is unconstitutional as applied to justify forcing the plaintiffs to walk or stand when arrested or detained. In addition, Jane Does Nos. 10, 17, 26, 37, 47 and 52 assert pendent claims for alleged intentional torts. For the reasons set forth below, plaintiffs' motion to certify defendant classes will be denied, defendants' motions to dismiss will be granted in part and denied in part, and defendants' motions to strike will be granted in part and denied in part.

 I. Motion for Certification of Defendant Classes

 Jane Does. Nos. 10, 17, 26, 37, 47 and 52 have filed a motion pursuant to Fed.R.Civ.P. 23(a) and (b)(3) to certify two classes of defendants for their claims in the third amended complaint. Specifically, plaintiffs seek to maintain their § 1983 claims for violations of the Fourth and Fourteenth Amendment *fn5" as a defendant class action against two classes of defendants -- (1) a general defendant class consisting of all employees (approximately 25 in number) of the County and City who were assigned to take custody of and process protestors at the Highland Building on March 11 and 12, 1989, and (2) a sub-class of such employees (approximately 10 in number) who were assigned to take into custody and process female protestors. Although unclear from our reading of the motion, it appears that the sub-class consists of those employees that plaintiffs allege committed the acts constituting excessive force and/or sexual assault. Furthermore, it is our understanding that members of the "sub-class" include those individuals who have been previously referred to as the "unnamed County Moe defendants." We also note that the unnamed County Moe defendants have been dismissed with respect to any and all claims against them in their individual capacities by opinion and order of this court dated November 4, 1991.

 Plaintiffs essentially contend that defendant classes should be certified in this action because defendants Kozakiewicz and Deroy will fairly and adequately protect the interests of the defendant classes and that questions of law and fact common to the defendant classes predominate over questions affecting individual members of the proposed classes. We hold, however, that the requirements for a Rule 23 certification have not been satisfied.

 First, we note that the standard for determining whether a § 1983 violation has occurred is different for the proposed representatives and the City and County than for the individual class members. See Williams v. Borough of West Chester, 891 F.2d 458, 467 (3rd Cir. 1989) ("A municipality may be liable under section 1983 only if it can be shown that its employees violated a plaintiff's civil rights as a result of a municipal policy or practice." (emphasis added)). Thus, while a violation by individual members is a prerequisite to a finding of municipal or supervisory liability, the separate legal standards lead to divergent legal interests by the proposed representatives and members.

 Second, we note that, notwithstanding the common theme of mistreatment of female anti-abortion protestors and the allegation that badges and name tags were removed by detaining officers, the factual allegations by each Jane Doe plaintiff are very fact specific. Thus, under these circumstances, certification of a defendant class or classes is not the appropriate vehicle by which to maintain such claims. Thus, we conclude that because the representatives will not fairly and adequately protect the interests of the proposed classes and because questions of law and fact are not sufficiently common, plaintiffs' motion for certification will be denied.

 II. Motions to Dismiss

 We must construe the third amended complaint in the light most favorable to plaintiffs and may dismiss the third amended complaint only if plaintiffs have alleged no set of facts under which relief could be granted. Banks v. Wolk, 918 F.2d 418, 419 (3rd Cir. 1990). We hold that plaintiffs' claims for alleged violations of 42 U.S.C. § 1985(3) are foreclosed by the United States Supreme Court's recent decision in Bray v. Alexandria Women's Health Clinic, U.S. , 122 L. Ed. 2d 34, 61 U.S.L.W. 4080, 113 S. Ct. 753 (1993). In Bray the Court considered whether § 1985(3) provided a federal cause of action against persons obstructing access to abortion clinics. Although the claim here is being pursued by anti-abortion protestors and not against them, we nevertheless find that the Court's discussion of the scope of § 1985(3) is relevant and hold that this statute does not provide a federal cause of action on behalf of protestors opposed to abortion, regardless whether that "class" of protestors consists only of females.

 In Bray, the Court noted that it had previously held that "the language [of § 1985(3)] requiring intent to deprive of equal protection, or equal privileges and immunities, means that here must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." 61 U.S.L.W. at 4081 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971) (emphasis in original)). The Court rejected the argument that opposition to abortion, as well as race discrimination, qualifies as an "otherwise class-based invidiously discriminatory animus." Bray, 61 U.S.L.W. at 4081-83. Specifically, the Court stated that "the term [class] unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors." Id. at 4081. Thus, in our view, this statement is dispositive of whether those who express opposition to abortion and protest may allege a conspiracy claim under this statute against law enforcement personnel who disagree with that viewpoint. They may not. Defendants' motions to dismiss will be granted with respect to the § 1985(3) claim.

 Plaintiffs also allege violations of 42 U.S.C. § 1994 and the Thirteenth Amendment, which, generally speaking, prohibit peonage and involuntary servitude, respectively. As we read the third amended complaint, plaintiffs specifically contend that defendants violated plaintiffs' rights under the Thirteenth Amendment and § 1994 in that plaintiffs were forced to stand or walk when arrested or detained. Third Amended Complaint at 28-29. We hold that such claims fail as a matter of law even when the allegations are construed in the light most favorable to plaintiffs as we must. The prohibitions set forth in the Thirteenth Amendment and § 1994 are simply not implicated by such ...


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