The opinion of the court was delivered by: GLENN E. MENCER
This action was filed due to the death of David Johnson during a confrontation with officers of the City of Erie Police Department on July 16, 1991. Presently before the court is defendant's second motion to dismiss and/or strike plaintiffs' second amended complaint. For the following reasons, defendants' motion is denied in part and granted in part.
By previous order of this court, dated June 3, 1993, plaintiff was required to alter its first amended complaint in a number of ways to bring it into compliance with the directives of Federal Rules of Civil Procedure 8(a), 12(b), and 12(f). The court was, and remains, of the opinion that with the required alterations the complaint adequately puts the defendants on notice of the allegations against them. However, the court will order as follows in response to the concerns raised by defendants in the instant motion.
1. Paragraph 1 of Plaintiffs' Second Amended Complaint
2. The Sufficiency of Plaintiffs' Section 1983 Claim
As we observed previously, the gravamen of plaintiffs' complaint is that Mr. Johnson suffered fatal blows while in the custody of the City of Erie Police Department. Officer Charles Bowers allegedly restrained Mr. Johnson in a choke-hold that led to Mr. Johnson's death. The defendant police officers and their supervisors, as well as city of Erie officials, are alleged to have deprived Mr. Johnson of his civil rights in the course of these events.
Plaintiffs have pleaded facts including the following: "that for a five year period prior to July 16, 1991, Officer Bowers was involved in a number of Complaints relating to his treatment of black persons in his custody"; "that without provocation, Officer Bowers, in the booking area of the police station, brutally fractured the jaw" of another person in his custody; "that Mayor Savocchio has had discussion with . . . the Justice Department representative in Community Relations Services . . . relating to the need for training of the City of Erie Police, as that training would relate to improving police" relations with African Americans.
Under section 1983, the defendants may be held liable only if the alleged conduct "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers" or is "visited pursuant to governmental custom even though such a custom has not received formal approval through the body's official decisionmaking channels." Colburn v. Upper Darby Township, 838 F.2d 663, 671 (3d Cir. 1988), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989), quoting Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-91, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). According to the court in Colburn, "an 'official policy' may be inferred from informal acts or omissions of supervising municipal officials." Id. at 671, quoting Estate of Bailey by Oare v. County of York, 768 F.2d 503, 508 (3d Cir. 1985).
The sufficiency of the current plaintiffs' claim is supported by a recent Supreme Court decision, Leatherman v. Tarrant, U.S. , 113 S. Ct. 1160, 122 L. Ed. 2d 517, 61 U.S.L.W. 4205 (1993), which suggests that the Colburn standard for pleading section 1983 claims may be too stringent. See Barnes v. City of Coatesville, 1993 WL 273406 (E.D. Pa. July 9, 1993) (questioning the continuing viability of Colburn following Leatherman). In Colburn, the plaintiff sufficiently stated a claim against Upper Darby Township for a "custom of laxity" by alleging that two suicides had occurred in its jail cells prior to the plaintiff's suicide. Id. at 672. Against this background, plaintiffs' allegations regarding previous conduct by Officer Bowers and city officials satisfy the factual specificity required to state a claim under 42 U.S.C. § 1983.
3. Unconstitutional Interference With Family Relationship
In this court's previous order, we dismissed Mr. Johnson's parents and children as parties because the complaint, as drafted, made no allegation for the deprivation of the civil rights of these family members. However, the dismissal was expressly made without prejudice and the court cited caselaw recognizing a constitutionally protected interest of family members under similar circumstances. See Agresta v. Sambor, 687 F. Supp. 162, 163 (E.D. Pa. 1988).
In their Second Amended Complaint, the plaintiff parents and children allege a deprivation of their civil rights. They aver that they maintained a close and loving relationship with the decedent and that the relationship "was extinguished by the defendant's unconstitutional actions."
In the instant motion, defendants allege that the complaint's Fifth and Sixth Claims for Relief fail to state claims for unconstitutional interference with family relations. As grounds for the dismissal, defendants emphasize plaintiffs' inclusion of First Amendment rights among those they seek to vindicate in this lawsuit. Defendants assert, "These First Amendment claims are not recognized by the Courts."
Plaintiffs state at the outset of the second amended complaint that their action is brought under various civil rights laws "and the First, Fourth and Fourteenth Amendments to the United State Constitution." Subsequently, in the Fifth and Sixth Claims for Relief, plaintiffs make more general mention of rights secured by the Constitution, including the First Amendment. Defendants allege that plaintiffs rely on the First Amendment to the exclusion of the Fourteenth Amendment in these claims for relief, and that this is "a fatal defect" in the second amended complaint.
The Third Circuit has upheld the right of a parent whose child died as a result of unlawful state action to maintain a suit under section 1983 for deprivation of liberty. See Estate of Bailey by Oare v. County of York, 768 F.2d 503, 509 (3d Cir. 1985). However, there is disagreement among courts recognizing the right over its constitutional underpinnings. "Most courts hold that a parent's right to association and companionship with a child is a substantive due process right, however, the Tenth Circuit has concluded that this right arises from the first amendment right to freedom of intimate association." Agresta v. Sambor, 687 F. Supp. 162, 163 (E.D. Pa. 1988) (citations omitted).
Given this background, we do not consider "fatal" plaintiffs' good faith assertion of a First Amendment basis to their claim for relief. A motion to dismiss is not the proper forum for resolving the debate about the constitutional underpinnings of surviving family members' claims in a civil rights action. The specificity rule in civil rights cases is meant to balance the rights of local government officials not to be subjected to the burden of trial on claims that are legally insufficient, and the rights of plaintiffs who have been injured as a result of actions or practices which the civil rights laws are designed to redress. See Freedman v. City of Allentown, 853 F.2d 1111, 1114 (3d Cir. 1988). The legal sufficiency of plaintiffs' claim, when the allegations are construed in a light most favorable to them, is apparent.
In assessing a motion to dismiss a civil rights claim, the crucial questions are whether sufficient facts are pleaded to determine that the complaint is not frivolous, and to provide defendants with adequate notice to frame an answer. See Colburn v. Upper Darby Twp., 838 F.2d 663, 666 (3d Cir. 1988), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989), quoting Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 68 (3d Cir. 1986). "We have routinely held that complaints comply with this standard if they allege the specific conduct violating the plaintiff's rights, the time and the place of that conduct, and the identity of the ...