Petition — City of West Haven v. Turpin

ee Ce ee

| Supreme Court, U.S,

FILED

SEP1 1978

MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

NO.

N° 78-370

CITY OF WEST HAVEN,

Petitioner,

v.

THOMAS TURPIN,

Respondent.

PETITION OF THE CITY OF WEST HAVEN

FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT AND APPENDIX

PAUL A. SCHOLDER

205 Church Street

New Haven, Connecticut 06510

203-777-7218

Attorney for the Petitioner

—_— -

Washington OC e CLB PUBLISHERS’ « LAW PRINTING CO e (202) 393.0625

(i)

TABLE OF CONTENTS

PETITION OF THE CITY OF WEST HAVEN

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

PU BER INE? CORCUEE 2... sc ecesenees

EE ois pho een W cde ine dee ccsedees

2 Ga cs a wan ee bts vv es Kaden bess

CONSTITUTIONAL AND STATUTORY PRO-

VISIONS INVOLVED........ ery pe eee Tee

SEAR peers OP Tete CAGE ..... 2. ccc cccccseess

REASONS RELIED ON FOR ALLOWANCE OF

EE oe iss DoE RAN GVA a SRE Os 00

I. CERTIORARI SHOULD BE GRANTED

TO RESOLVE A CONFLICT IN THE

CIRCUITS AS TO THE IMPOSITION OF

LIABILITY FOR MONEY DAMAGES

UPON MUNICIPALITIES DIRECTLY

UNDER THE FOURTEENTH AMEND-

Il. CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE APPARENT INCON-

SISTENCY BETWEEN THE DECISION

OF THE SECOND CIRCUIT AND THE

DECISION OF THIS COURT IN MO-

NELL V. DEPARTMENT OF SOCIAL

SERVICES, AND THE RATIONALE OF

BIVENS V. SIX UNKNOWN FEDERAL

PAPA Ce PURBETE es oo cin cccsenenccces

Ill. CERTIORARI SHOULD BE GRANTED

SINCE THE SECOND CIRCUIT DE-

CIDED IMPORTANT QUESTIONS OF

FEDERAL LAW WHICH HAVE NOT

BEEN, BUT SHOULD BE, SETTLED BY

Me IE Ata Aa Neca chs eade we nse nian

Page

een 6

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ee POI SRT Te RRL oT :

: edie é ‘ s! PR Rr Nara ce ee ¢. ‘% y Saas pian 5S

< Rte ees. t (dhe Ey ey vo OTE CI Oe a wee EN OP RR ee PEO TSE OT ee

"PDS SANS SB RSE RA OD cow Det pee ee LD Pan ss aati

: PSS ER RE GW TP age ie te } ppirexe oe

(ii)

A. The question of whether a cause of action

for money damages against a municipality

should be implied, directly from the

fourteenth amendment, has not been re-

solved try Chis COW oo soon sie ec iccccnceeness 13

B. The standard, level and character of mu-

nicipal involvement necessary to give rise

to a cause of action against the munici-

pality, for money damages, either under 42.

U.S.C. § 1983, or, if allowed, as implied

from the fourteenth amendment, is un-

settled, and should be settled by this Court...... 16

CONC LUBIIN css cess rapesLv eben hohadie whee ir awanss 20

APPENDIX:

MEMORANDUM .......... Uber ee wiy ke Wee taavae ewes la

PARTIAL JUDGMENT ............ccccccccvsccccccecs lb

MEMORANDUM ...........--ccccccccccccsvesccccces Ic

PRE, Sik bs ond 0bs coe cardacc cher Seersrsarvees ld

OPINION DATED JUNE 5, 1978 ..........-----eeeeee le

CONCURRING OPINION. ..........--seeecceceeees 33e

DISSENTING OPINION ..........-- cece cere ee eeeees 39e

PETIT s ov cathe cde vce eevecensveedenedecevaek see If

(iii)

TABLE OF AUTHORITIES

Page

CASES:

Allee v. Medrano, 416 U.S. 802 (1974).................. 17

Adekalu v. New York City, 431 F. Supp. 812 (S.D.

og AAD se APRS U AES RT 7 ea Be pee TAME a 10

Behan v. City of Dover, 419 F. Supp. 562

Ce ee UES dine sak Sa ee be oh caw Eg od Saree ab 10

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971).......... 8,11

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 409 F.2d 718 (2d Cir., 1969). .... 13

Ce 0 Ge Be REDS bk cobs pk cccdneetcasicas 14

Cox v. Stanton, 529 F.2d 47 (4th Cir., 1975).............. 9

Crosley v. Davis, 426 F. Supp. 389 (E.D. Pa., 1977)....9,17

Dahl v. City of Palo Alto, 372 F. Supp. 647 (N.D.

OR EC ee POA on ne ar ee ee 10

Demkowitz v. Endry, 411 F. Supp. 1184 (S.D. Ohio,

raed OIG es aed aa Rhus Ends s oo ed 10

Ex Parte Virginia, 100 U.S. 339 (1880).................. 15

Farnsworth v. Orem City, 421 F. Supp. 830 (D. Utah,

a, MORE SS sr Aged Deena pry pk a ae aA mee en OR 9

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976). ............... 15

Gentile v. Wallen, 562 F.2d 193 (2d Cir., 1977)........... 9

Gresham v. City of Chicago, 405 F. Supp. 410 (N.D.

bE hs Nae rae ach ae ee aed se wieseids 10,17

Same ©, CA, Bee Wie GP LUMO: occ koccenckcsccvece 17

Hostrop v. Board of Junior College District No. 515,

523 F.2d 569 (7th Cir., 1975), cert. denied, 425

See I rr ee ee oe ira oh was Kaas 8

(iv)

Jamison v. McCurrie, 565 F.2d 483 (7th Cir., 1977) ..... 8,16

Kostka v. Hogg, 560 F.2d 37 (1st Cir., 1977)........ 6,8,16,17

Mahone v. Waddle, 564 F.2d 1018 (3d Cir., 1977),

esse, Gonted, SB 3. Ch. SUCe CHD ok cbs Senta nsec 6,8

McDonald v. State of Illinois, 557 F.2d 596 (7th

Cir.), cert. denied, 98 S. Ct. 508 (1977) ............. 8,16

Mitchell v. Libby, 409 F. Supp. 1098 (D. Vt., 1976) ....... 9

Monell v. Department of Social Services of the City of

New York, 98 S. Ct. 2018 (1978)........ 7,11,12,13,16,19

Moaroe v. Page, 365 U.3. 167 CHIBI «6 ss cinaccn dena newness 11

Mt. Healthy City School District Board of Education

v. Dople, 429 UE 276 NTA ace aateesaeseene 7,14

National League of Cities v. Usery, 426 U.S. 833

CEBIB) «oo vcs csncsceensod chung nee eeene 15

Owen v. City of Independence, 560 F.2d 925 (8th

Cir., 1977), cert. granted, vacated and remanded,

96 F. Ce... S018 CPD. oe bd nencatsepeeeeeaes 9,16

Panzarella v. Boyle, 406 F. Supp. 787 (D. R.I., 1975)...... 10

Perzanowski v. Salvio, 369 F. Supp. 223 (D. Conn.,

IDT4). oo oscnnncyhiete aewaaeuaes ae 10

Pitrone v. Mercadante, 420 F. Supp. 1384 (E.D. Pa.,

1976), rev'd on other grounds, 572 F.2d 98 (3d

Cir., 1978), petition for cert. filed, 47 U.S.L.W.

3016 (U.S., July 25, 1978) (No. 77-1666).............. 9

Raffety v. Prince George’s County, 423 F. Supp. 1045

(ED. MEG, 1976) . o.ccss. scene kanes eur eee 9

Reeves v. City of Jackson, 532 F.2d 491 (Sth Cir.,

DG TG).. . occ c ccsnc 04 siadb-c niente wiley einen 9

Rizzo v. Godde, 423 U.S. 362 (1976) .............. 17,18,19

Smetanka v. Borough of Ambridge, 378 F. Supp. 1366 (W.D.

Pa, 1978). oins.c cn cdcce odwacnngee eee 10

(vy)

Turano v. Board of Ed. of Island Trees Union Free

School Dist. No. 26, 411 F. Supp. 205 (E.D. N.Y.,

NI De eer ie aire hagas 6 ons hae ae 40 ea ae 10

Washington v. Brantly, 352 F. Supp. 559 (M.D. Fla.,

ee a eS le Oe ee ae wae ware io ¥ bie 9 e840 10

Weathers v. West Yuma County School Dist. R-J-1,

387 F. Supp. 552 (D. Colo., 1974), affd., 530

Pia OU CUE als BOTOR icc ceccsscccvccccccvecss 10

OTHER AUTHORITIES:

Federal Rules of Civil Procedure, Rule 54(b) ............. 2,6

United States Constitution, Fourteenth Amendment. 2,4,7,15,16

es MY NE is cavcccrocsccesccdctsvevcves 2

i PES si wiaedsceveseescdccsiebaesvecees 5

et es I IND cc cevcvcccccviccdecvavectccos 5

eR = | ee 5,12,14,15,16

I I Go og oc v's buses os evcvk vecedvbevess 5

e

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

CITY OF WEST HAVEN,

Petitioner,

THOMAS TURPIN,

Respondent.

PETITION OF THE CITY OF WEST HAVEN

FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT AND APPENDIX

To the Honorable, the Chief Justice of the Unitea States,

and the Associate Justices of the Supreme Court of the

United States:

The petitioner, the City of West Haven, appellee in the

court below, respectfully prays that a writ of certiorari issue

to review the judgment of the United States Court of

Appeals for the Second Circuit entered in the above case on

June 5, 1978. That decision reversed the partial judgment

of the United States District Court for the District of

Connecticut entered in the above case on May 17, 1977, and

the final judgment of said court entered on August 3, 1977.

2

OPINIONS BELOW

The unreported opinion of the United States District

Court for the District of Connecticut, dated May 9,

1977, dismissing plaintiff's complaint against the City

of West Haven, is set forth at page la of the Appendix

filed herewith. A further unreported opinion of the

United States District Court for the District of Con-

necticut, dated August 1, 1977, ordering that final

judgment be entered in favor of the City of West Haven

pursuant to Rule 54(b), Federal Rules of Civil

Procedure, is set forth at page lc of the Appendix.

The opinion and judgment of the United States

Court of Appeals for the Second Circuit, reversing as

to plaintiffs claim under the fourteenth amendment

and allowing a cause of action against the City of West

Haven founded thereon, are set forth at page le of

the Appendix and are reported at 46 L.W. 2658.

JURISDICTION

The judgment of the United States Court of Appeals

for the Second Circuit, reversing in part, and

remanding in part, the decision of the United States

District Court for the District of Connecticut was

entered on June 5, 1978 (A. 1f). The jurisdiction of

the Supreme Court of the United States Is invoked

pursuant to 28 U.S.C. §1254(1).

3

QUESTIONS PRESENTED FOR REVIEW

1. Are municipalities subject to liability for money

damages in an action implied directly from the

fourteenth amendment to the United States Constitu-

tion for constitutional violations allegedly committed

by their employees?

2. Does the governing body of a municipal police

department have a federal constitutional duty to

discipline a police officer charged with unconstitu-

tional conduct for the purpose of using such actionasa

deterrent to possible future unconstitutional conduct

by other police officers?

3. Does the allegation that the governing body of a

municipal police department failed to discipline one

police officer charged with unconstitutional conduct

State a cause of action against the municipality for

money damages upon allegations of subsequent

unconstitutional conduct by other police officers?

4. Does the failure of the governing body of a

municipal police department to discipline a police

officer charged with unconstitutional conduct create

an official policy authorizing, sanctioning, requiring or

ratifying said conduct?

5. Are municipalities subject to liability for money

damages only where they act affirmatively in creating,

implementing or executing a policy statement,

ordinance, rule or regulation, or may they be subject to

such liability where they fail to act?

4

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The fourteenth amendment provides, in pertinent

part:

“Section |. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of the

State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.”

“Section 5. The Congress shall have power to

enforce, by appropriate legislation, the pro

visions of this article.”

Title 42, §1983 of the United States Code provides:

“Every person who, under color of any statute

ordinance, regulation, custom, or usage, of any

State or Territory, subjects or causes to be

subjected, any citizen of the United States or any

other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be

liable to the party injured in an action at law, suit

in equity, or other proper proceeding for redress.

STATEMENT OF THE CASE

The plaintiff commenced this action in the United

States District Court for the District of Connecticut

against the individual defendants, Joseph Mailet and

5

John Doe, as police officers employed by the City of

West Haven, Connecticut [hereinafter referred to as

“the City’’], and against the City, for alleged violation of

his constitutional rights.

The action against the individual defendants was

founded on 42 U.S.C. §1983, with jurisdiction asserted

under 28 U.S.C. §1343(3).

The action against the City was founded directly on

fourteenth amendment to the United States Constitu-

tion, with jurisdiction asserted under 28 U.S.C. §1331.

Certain state law claims were also asserted against the

City, under42 U.S.C. §1988, and the pendent

jurisdiction of the court.

The plaintiff alleges that he was unlawfully arrested

and detained, and was subjected to a malicious

prosecution. It is alleged that these actions arose out of

animosity toward the plaintiff, on the part of the

defendants, flowing from a prior civil action brought

by the plaintiff against another member of the Police

Department of the City of West Haven.

The plaintiff further claims that the Board of Police

Commissioners of the City failed to discipline the

officer involved in the prior civil action, and, at some

point in time, promoted said officer.

The district court granted the City’s Motion to

Dismiss all claims against it (A. la). The court held

that no actionable claim existed against the City under

42 U.S.C. §1983, that no cause of action against the

municipality may, or should, be implied under the

fourteenth amendment, and declined to exercise

pendent jurisdiction over such vaguely stated state law

claims as were asserted. On May 17, 1977, a partial

judgment was entered in favor of the City.

6

Pursuant to Rule 54(b), Federal Rules of Civil

Procedure, the court, on August 3, 1977, ordered that

final judgment be entered in favor of the City (A. 1d).

The plaintiff appealed to the United States Court of

Appeals for the Second Circuit. The case was argued to

the Court, en banc, on January 27, 1978.

In a 5-4 decision, issued on June 5, 1978, the majority

of the Court of Appeals reversed the judgment of the

district court, insofar as it had dismissed plaintiff's

action brought under the fourteenth amendment, and

remanded the cause for consideration in accordance

with its opinion, as to both the fourteenth amendment

cause of action, and the pendent jurisdiction claim (A. If).

The dissenting members of the Court of Appeals

would have affirmed.

REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT

The decision of the Court of Appeals for the Second

Circuit in this case, holding that a municipality may b>

subject to liability for money damages directly under

the fourteenth amendment, is in conflict with the

decisions of the other Courts of Appeal, in the

following cases: Kostka v. Hogg, 560 F.2d 37 (Ist Cir.,

1977), and, Mahone v. Waddle. 564 F.2d 1018 (3rd

Cir., 1977), cert, denied, 98 S.Ct. 3122 (1978).

This Court has not decided the question of whethera

municipality may be subject to liability, for money

7

damages, directly under the fourteenth amendment.

Mt. Healty City Schoo! District Board of Education v.

Doyle, 429 U.S. 274 (1977). This important question of

federal law has been decided by the Second Circuit, and

should be settled by this Court.

The decision of this Court in Monell v. Department

of Social Services of the City of New York, 98 S.Ct.

2018 (1978) bears upon, but does not resolve, this issue.

In light of Monell, it appears neither appropriate nor

necessary to imply such a cause of action from the

fourteenth amendment. A resolution of this question is

important to municipalities throughout the United

States.

It is noted that the decision of the Second Circuit, in

this case, was announced only one day prior to the

announcement of the decision by the Court in Monell.

This Court has not determined whether the

governing body of a municipal police department has a

federal constitutional duty to discipline employee

officers, and whether failure to do so will subject the

municipality to liability directly under the fourteenth

amendment.

I. CERTIORARI SHOULD BE GRANTED

TO RESOLVE A CONFLICT IN THE

CIRCUITS AS TO THE IMPOSITION OF

LIABILITY FOR MONEY DAMAGES

UPON MUNICIPALITIES DIRECTLY

ae THE FOURTEENTH AMEND-

The decision of the Second Circuit in this case,

holding that a municipality is subject to liability

8

directly under the fourteenth amendment, is in direct

conflict with the decision of the First Circuit in Kostka

v. Hogg, 560 F.2d 37 (1st Cir., 1977) and the decision of

the Third Circuit in Mahone v. Waddle, 564 F.2d 1018

(3rd Cir., 1977), cert. denied, 98 S.Ct. 3122 (1978).

It appears that the Fourth, Fifth, Seventh and

Eighth Circuits would, under certain circumstances, be

in accord with the Second Circuit.

In its decision in Mc Donald vy. State of Illinois, 557

F.2d 596 (7th Cir.,), cert. denied, 98 S.Ct. 508 (1977),

Seventh Circuit held that implication of a cause of

action, for money damages, directly under the

fourteenth amendment, on a theory such as that

expressed in Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), as

against a county, based upon the action of one of its

employees, on a vicarious liability theory, was neither

necessary nor appropriate. Moreover, in that decision,

it was noted that no official policy of the county

required its employees to deprive citizens of their

constitutional rights.

A similar view was expressed in Jamison v.

Mc Currie, 565 F.2d 483 (7th Cir., 1977), where the

Court expressed its view that municipal liability could

only arise where the actions of its employees were

required by some rule, regulation or stated policy.

However, in the decision in Hostrop v. Board of

Junion College District No. 515,523 F.2d 569 (7th Cir.,

1975), cert. denied, 425 963 (1976), the Seventh Circuit

permitted recovery against the governmental entity

where it found the action of its governing board was

directly responsible for the action in question.

9

In Owen v. City of Independence, 560 F.2d 925 (8th

Cir., 1977), cert. denied, vacated and remanded, 98

S.Ct. 3118 (1978), in an employee discharge-reinstate-

ment with back pay situation, the Eighth Circuit

announced a position in accord with the Second

Circuit, not only as expressed in the instant case, but

also in Gentile v. Wallen, 562 F.2d 193 (2nd Cir., 1977).

However, the Eighth Circuit clearly noted that it was

taking such action in the context of an equitable

remedy only, and left open the question of whether

such a remedy would be implied in cases dealing with

brutality, false arrest and imprisonment, and unlawful

searches and seizures committed by individual police

officers. In those situations, some direct involvement

by a policy making body of the municipality would

apparently be required before liability would be

imposed.

Cases stating the views of the Fourth and Fifth

Circuits, as to such a fourteenth amendment cause of

action, as against municipalities, are Cox v. Stanton,

529 F.2d 47 (4th Cir., 1975), and Reeves v. City of

Jackson, 532 F.2d 491 (5th Cir., 1976). |

This issue has also presented difficulty for numerous

district courts. Among those determining, prior to the

instant decision, that the municipality is not liable, in

money damages, directly under the fourteenth

amendment are Crosley v. Davis, 426 F.Supp 389

(E.D. Pa., 1977); Mitchell v. Libby, 409 F.Supp. 1098

(D. Vt., 1976); Raffety v. Prince George’s County, 423

F.Supp. 1045 (D.Md., 1976); Farnsworth v. Orem City,

421 F.Supp. 830 (D. Utah, 1976); Pitrone vy.

Mercadante, 420 F.Supp. 1384 (E.D. Pa., 1976), rev'd

on other grounds, 572 F.2d 98 (3rd Cir., 1978), petition

10

for cert. filed, 47 U.S.L.W. 3016 (U.S., July 25, 1978)

(No. 77-1666); Turano v. Board of Ed. of Island Trees

Union Free School Dist. No. 26,411 F.Supp. 205 (E.D.

N.Y., 1976); Gresham v. City of Chicago, 405 F.Supp.

410 (N.D. Ill., 1975); Smetanka vy. Borough of

Ambridge, 378 F.Supp. 1366 (W.D. Pa., 1974);

Perzanowski vy. Salvio, 369 F.Supp. 223 (D. Conn.,

1974); Weathers v. West Yuma County School Dist. R-

J-1, 387 F.Supp. 552 (D. Colo., 1974), aff'd, 530 F.2d

1335 (10th Cir., 1976); Washington v. Brantly, 352

F.Supp. 559 (M.D. Fla., 1972).

Cases decided by district courts, prior to the instant

decision of the Second Circuit, holding for the

imposition of such liability, include Adekalu v. New

York City, 431 F.Supp. 812(S.D. N.Y., 1977); Behan v.

City of Dover, 419 F.Supp. 562 (D. Del., 1976);

Demkowitz v. Endry, 411 F.Supp. 1184 (S.D. Ohio,

1975); Panzarella v. Boyle, 406 F.Supp. 787 (D. R.L.,

1975);and, Dahl v. City of Palo Alto, 372 F.Supp. 647

(N.D. Cal., 1974).

The City of West Haven respectfully submits that a

writ of certiorari should issue to resolve this question

which has resulted in a conflict in the circuits, and has

been difficult of uniform resolution by many district

courts.

Ii. CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE APPARENT INCON-

SISTENCY BETWEEN THE DECISION OF

THE SECOND CIRCUIT AND THE

DECISION OF THIS COURT IN MONEi &

V. DEPARTMENT OF SOCIAL SERVICES,

AND THE RATIONALE OF BIVENS V.

SIX UNKNOWN FEDERAL NARCOTICS

AGENTS.

In Monell v. Department of Social Services of the

City of New York, 98 S.Ct. 2018 (1978), the Court held

that municipalities are no longer immune from liability

under 42 U.S.C. §1983, and, to that extent, expressly

overruled Monroe v. Pape, 365 U.S. 167 (1961).

The Monell decision was announced on June 6,

1978, the day following the announcement of the

decision of the Second Circuit in the instant action.

The action of the Second Circuit, in this case, is

based upon the rationale set forth in the Bivens v. Six

Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

In Bivens, the Court was confronted with an

anomaly when viewed against the fabric of legal

remedies available to redress violations of constitu-

tional rights which had previously been woven by

Congress. No statutory cause of action was available to

the plaintiff in that action.

In the face of the situation before it, in Bivens, the

Court determined that it was both necessary and

appropriate to afford a remedy, in money damages,

against individual federal agents, in order to give full

effect to the fourth amendment.

12

The Court also determined that no special factors

were present to counsel hesitation in fashioning the

remedy sought. No other remedial scheme had been

provided by Congress.

In light of the Court’s decision in Monell, petitioner

urges the implying of a cause of action against a

municipality for money damages is no _ longer

necessary, Or appropriate, since full relief can be

obtained within the framework of 42 U.S.C. §1983.

Since 42 U.S.C. §1983 was, by its history, adopted

pursuant to section five of the fourteenth amendment,

and, since that statute is now interpreted as permitting

money damage recoveries for constitutional violations

by municipal actors against the municipality itself, the

same, it is urged, should be accorded judicial deference

as to the proper approach to give full effect to the

amendment.

It is, therefore, respectfully submitted that, since no

compelling need exists to sanction a cause of action, for

money damages, against municipalities directly under

the fourteenth amendment, it is inappropriate to imply

such a cause of action, and remedy.

The Second Circuit, in its decision in this case,

seemed to rely heavily on the fact that the municipality,

itself, would not be subject to suit, or liability, unless

the same were allowed directly under the fourteenth

amendment.

Since that view has been dramatically altered by the

Court’s decision in Monell, it may well be that the

Second Circuit would now decide the matter in a

different manner.

The Court observed, in Bivens, supra, that no

explicit congressional declaration existed to indicate

13

that injured parties were remitted to a remedy other

than that permitted by the Court. Here, however,

following the decision in Monell, such is no longer

precisely the case.

Further, as noted by Chief Judge Lumbard, in

Bivens v. Six Named Unknown Agents of Federal

Bureau of Narcotics, 409 F.2d 718 (2nd Cir., 1969),

federal courts should only imply a federal remedy for

the enforcement of a constitutional right, when the

absence of alternative remedies renders the constitu-

tional provision less than fully effective.

Therefore, the City of West Haven respectfully

submits that, to the extent that the Second Circuit

sanctioned the implying of a cause of action directly

from the fourteenth amendment, its action, in light of

the Court’s decision in Monell, is inconsistent with

both Monell and Bivens, supra, and certiorari should

issue to resolve this inconsistency.

III. CERTIORARI SHOULD BE GRANTED

SINCE THE SECOND CIRCUIT DECIDE

IMPORTANT QUESTIONS OF FEDERAL

LAW WHICH HAVE NOT BEEN, BUT

SHOULD BE, SETTLED BY THIS COURT.

A. THE QUESTION OF WHETHER A

CAUSE OF ACTION FOR MONEY

DAMAGES AGAINST A MUNICIPALITY

SHOULD BE IMPLIED, DIRECTLY

FROM THE FOURTEENTH AMEND-

MENT, HAS NOT BEEN RESOLVED BY

THIS COURT.

14

The question of whether a municipality may be held

liable, for money damages, in an action directly under

the fourteenth amendment, remains open and

unresolved by this Court. Mt. Healthy City School

District Board of Education v. Doyle, 429 U.S. 274

(1977).

As the Court noted in Mt. Healthy, that question

was one of considerable importance, and should be

resolved. That degree of importance which existed

prior to the Court’s decision in Monell, supra, would

appear to remain at this time.

It remains likely, if not probable, that plaintiffs may

wish, for whatever reason, to pursue actions, founded

ona Bivens rationale, even though Monell has made

municipalities amenable to suits, and imposition of

money damage awards, under 42 U.S.C. §1983.

The Court suggested, in Cort v. Ash, 422 U.S. 66

(1975), in considering whether to imply a damage

remedy from a regulatory statute which, itself, did not

contain such a remedy, that such a remedy should be

implied only when the enforcement scheme adopted by

Congress is inadequate to attain its goals, and when a

private right of action is necessary to cure the

deficiency.

This rationale may well support the action of the

Court in Bivens, but would not be appropriate support

for implying a damage remedy from the fourteenth

amendment, especially in light of the Court’s recent

holding in Monell.

Under the teaching of Cort v. Ash, one question is

whether there is any indication of legislative intent,

explicit or implicit, either to create, or to deny, the

remedy. The legislative history of 42 U.S.C. §1983, as

15

discussed in Monell, clearly suggests the existence of an

implicit legislative intent to permit such a remedy solely

within the confines of that statute.

It also seems appropriate to suggest that any

expansion of the remedy now afforded by 42 U.S.C.

§1983 should be provided by the Congress.

As Messrs. Justice Burger, Black and Blackmun

advised, in Bivens, supra, at pp. 411, 427 and 430,

respectively, the more appropriate manner for dealing

with this clearly troublesome issue is to exercise the

separation of powers, and to leave the creation of any

further remedy to the Congress.

Such an approach appears consistent with the

provisions of section 5, fourteenth amendment,

providing for congressional, rather than judicial,

enforcement oi the amendment.

The impact of section 5 in such situations was

considered by the Court in Ex Parte Virginia, 100 U.S.

339 (1880), with particular attention to the comments

of Mr. Justice Strong at page 345.

The Court has, in the not too distant past, given

further consideration to the scope, and reach of section

5. In this regard, the comments of Mr. Justice

Rhenquist, ina footnote in National League of Cities v.

Usery, 426 U.S. 833 (1976), and the decision of the

Court some four days later in Fitzpatrick vy. Bitzer, 427

U.S. 445 (1976), seem significant. These decisions

reflect an especial degree of deference to enactments

under section 5. Such deference, it is urged, should

apply to 42 U.S.C. §1983, similarly enacted.

In light of this status of the law, it is respectfully

submitted that this Court should resolve this issue at

this time.

16

B. THE STANDARD, LEVEL AND CHARAC-

TER OF MUNICIPAL INVOLVEMENT

NECESSARY TO GIVE RISE TO A CAUSE

OF ACTION AGAINST THE MUNICI-

PALITY FOR MONEY DAMAGES, EI-

THER UNDER 42 U.S.C. § 1983, OR, IF

ALLOWED, AS IMPLIED FROM THE

FOURTEENTH AMENDMENT, IS UN-

SETTLED, AND SHOULD BE SETTLED

BY THIS COURT.

In order for a municipality to either be subject to

injunctive relief, or to be subject to liability in money

damages, for infringement of constitutional rights, it

has been held that the governmental entity must be a

direct participant in the wrongdoing, or be directly

blameworthy. Monell v. Department of Social Services

of the City of New York, 98 S.Ct. 2018 (1978); Rizzo v.

Goode, 423 U.S, 362 (1976); Kostka v. Hogg, 560 F.2d

37 (Ist Cir., 1977); Me Donald vy. State of Illinois, 557

F.2d 596 (7th Cir.), cert. denied, 98 S.Ct, 508 (1977),

In Monell, the liability was founded upon action which

implemented or executed a policy statement, or-

dinance, regulation or decision adopted by officials of

the governmental entity, thus satisfying the direct

participation concept,

In McDonald vy, State of Illinois, supra, the Court

indicated that it would not impose liability on a

municipality in the absence of an official policy which

required its employees to engage in the offending

conduct. The decision in Jamison v. MeCurrie, 565

F.2d 483 (7th Cir., 1977) is to the same effect.

The Eighth Circuit, in Owen v. City of Independence,

560 F.2d 933 (8th Cir., 1977), cert. granted, vacated and

17

remanded, 98 §.Ct. 3118 (1978), in a note, stated it did

not imply by its decision in the case before it that a

municipality would be held liable for money damages

for police misconduct in the absence of proof that the

policy making agencies of the city, or its officials,

knowingly encouraged or tolerated such conduct,

While this expression is dicta, it nevertheless gave

expression to yet another standard of the level and

character of municipal involvement which is necessary

for the imposition of liability, The standard there

expressed appears to be less direct that that noted in the

cases earlier cited,

In Rizzo v. Goode, supra, the question of failure of a

city to provide adequately for the discipline of its police

officers was at the heart of a claim for broad injunctive

relief. The Court indicated that the inaction of the city

in failing to supervise or discipline its police officers

would not be viewed in the same fashion as would

affirmative action or action in execution of stated

policy, The requested relief was denied.

By way of illustration of the direct and affirmative

forms of conduct which the Court woula find

actionable, as against a municipality, specific reference

was made in Rizzo, supra to Allee v. Medrano, 416

U.S, 802(1974)and Hague v. C1O, 370 U.S, 496 (1938),

A similar view is expressed in Kostka v. Hogg,

Crosley v. Davis, and Gresham vy. City of Chicago,

supra.

The First Circuit, in Kostka v, Hogg, supra, adopted

the Rizzo concept and standard, and noted that direct

municipal involvement would be required before the

imposition of liability could be considered, That Court

also adopted the Rizzo reasoning that no federal

18

constitutional duty existed compelling a police chief to

take positive action to discipline police officers to

reduce the incidence of unconstitutional conduct by

police officers.

Mr. Turpin bases his claims in this action on an

allegation that the governing board of the Police

Department failed to discipline a police officer. It is

claimed that, as a result of such inaction, other police

officers later violated his constitutional rights.

Based upon such claims, the Second Circuit held that

a municipality may be held liable in money damages

where the actions of its employees have been

authorized, sanctioned or ratified by municipal

officials, or policy making bodies, The Court regarded

that standard as defining direct municipal responsi-

bility for the allegedly unconstitutional acts of its

employees,

Insight into the views of the Second Circuit, in

defining the standard of municipal action which might

subject it to liability, is found in its statement that the

inaction of police officials in failing to discipline a

single police officer, as a result of a single event, may

amount to a de facto departmental policy,

This measurement of the degree, or character, of

municipal involvement necessary to subject it to

liability, including a substantial inference from the

limited facts alleged, seems unwarranted, and is not in

keeping with the standards described in Rizzo where

the Court considered patterns of activity involving

large numbers of incidents.

It is submitted that the assertions against the City

might alternatively be viewed as allegations of

negligence. It is claimed that the City had a duty to

19

discipline its police officers to prevent their unconstitu-

tional conduct, and, that duty was breached, on one

occasion, The breach then proximately resulted in the

complained-of action by the individual officers.

Such an analysis must include the unstated assertion

that the municipal agency knew, or should have

known, that its failure to discipline one individual

police officer might be perceived by other individual

officers as a sanction for violating the constitutional

rights of the citizenry,

To the extent that such a standard is claimed, the

same appears to fall short of the standards announced

in Rizzo and Monell, supra.

The City of West Haven respectfully submits that the

standard applied by the Second Circuit to measure the

alleged involvement of the municipality in the

complained-of conduct is inconsistent with the prior

expressions of this Court in Monell and Rizzo, and

thus the decision should be reviewed by this Court.

Moreover, it is respectfully submitted that the

standard is unsettled, and should be further defined by

this Court,

20

CONCLUSION

For the above reasons, it is respectfully requested

that this Honorable Court issue a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Second Circuit.

Respectfully submitted,

PAUL A. SCHOLDER

Attorney for Petitioner

la

APPENDIX A

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

KKKKKEKKEKAKREARKK KKK KK EK KO KK Dee.

Thomas Turpin, iii

Plaintiff tee

VS. Civil Action

* No. N-75-181

ca

Joseph Mailet, Et Al.,

Defendants °

KEXKKKKKKKKKKK KK KKK KK KKK KOK OK KK

RULING ON MOTION TO DISMISS

This is a civil rights action for damages arising from

an alleged false arrest in West Haven, Connecticut, the

arrest assertedly motivated by animosity resulting from

a successful prior suit by plaintiff against a West Haven

police officer. The complaint essentially joins recog-

nized federal claims against individual policemen

under 42 U.S.C. §1983 and its jurisdictional

counterpart, 28 U.S.C. §1343, see Monroe v. Pape, 365

U.S. 167 (1961), with a purported claim against the

municipality made directly under the Constitution, cf.

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971); jurisdiction

to entertain the latter “implied” right of action is

claimed under the general federal question grant 28

U.S.C. §1331, cf. Bell v. Hood, 327 U.S. 678 (1946).

The defendant city has moved to dismiss.

at ee

2a

It is of course settled that Congress did not intend to

subject municipalities to suit under §1983 for alleged

violations of civil rights. Monroe v. Pape, supra at 187-

192; see also City of Kenosha v. Bruno, 412 U.S. 507,

511-513 (1973); cf. Moor v. County of Alameda, 411

U.S. 693, 698-710 (1973). The proposition that federal

courts may and should nevertheless independently

recognize or create a damage remedy against a

municipality for alleged denial of constitutional rights

is not yet settled, having been treated as an open

question in this Circuit, see Fine v. City of New York,

529 F.2d 70, 76 (2 Cir. 1975), and most recently by the

Supreme Court, see Mt. Healthy City School District

Board of Education v. Doyle, 45 U.S.L.W. 4079, 4080

(1977). That “extremely important question”, id. at

4080, would seem at least of sufficient substance to

warrant threshold assumption of §1331 jurisdiction to

consider its merits, see,e.g., Perzanowski v. Salvio, 369

F.Supp. 223, 229 (D. Conn. 1974), cf. City of Kenosha

v. Bruno, supra, at 514, Bell v. Hood, supra at 682-685.

The claim of municipal liability is made by analogy

to the holding in Bivens, supra, in which the Supreme

Court sanctioned judicial resort to a damage remedy

“implied” directly under the Constitution, there

affording a right to relief against individual federal law

enforcement officers equivalent to that traditionally

available under §1983 against state and local officers

for such abuses of authority as illegal search and arrest,

the Court having in those circumstances discerned “no

special factors couselling hesitation in the absence of

affirmative action by Congress”, id. at 396. While the

complaint now before this Court is to be read

generously, see Scheuer v. Rhodes, 416 U.S. 232, 236

3a

(1974), the question is not so much whether plaintiff

could conceivably prove facts calling into play an

established right of action, as whether the different

circumstances here depicted render appropriate this

Court’s fashioning a new suit right. As in similar prior

motion proceedings in this district, moreover, for

present purposes “it is unneccessary to determine

whether the Bivens rationale should ever be extended

to imply a remedy against a municipality for damages

arising from allegedly unconstitutional action”,

Gifford v. Rodriguez, Civil No. N-76-157 (D. Conn.

Jan. 11, 1977), but is instead “sufficient to note that,

under the circumstances of this case, municipal liability

is inappropriate”, id.

In writing fora divided panel of the Court of Appeals

for this Circuit which initially recognized just such a

“direct” claim for damages for a town’s alleged

violation of due process rights in attempting judicial

enforcement of an invalid zoning ordinance, Judge

Smith viewed Bivens as “sweeping approbation of

constitutionally-based causes of action,” Brault v.

Town of Milton, 527 F.2d 730, 734 (2 Cir. 1975). It is

fair to state, however, that the courts have not reached

unanimous agreement concerning Bivens’ proper

scope, see Note, “Damage Remedies Against Munici-

palities For Constitutional Violations,” 89 Harv. L.

Rev. 922, 927-929 (1976). Indeed, in Brault itself, on

rehearing en banc the Court of Appeals found no

Fourteenth Amendment violation stated on the

complaint’s face in any event, and expressly declined to

resolve plaintiffs’ disputed contention that “regardless

of §1983, their damage suit must be upheld on the

ground that it is derived directly from the Fourteenth

4a

Amendment,” id. at 738. As remarked above, the issue

has yet to be authoritatively decided, see Mt. Healthy,

supra, Fine v. City of New York, supra.

Absent controlling general endorsement of imposi-

tion of municipal liability directly under the

Constitution, it is prudent to bear in mind that plaintiff

requests judicial creation of a remedy. In an era of

increasing numbers of civil rights enactments following

the Supreme Court’s definitive interpretation of the

traditional Civil Rights Act as precluding municipal

liability, Monroe v. Pape, supra, the failure or refusal

of Congress to expand §1983’s settled reach can hardly

be ignored, cf. Perzanowski v. Salvio, supra at 230,

compare, e.g., Note, “Damage Remedies,” supra at

935-951, with Comment, “Implying a Damage Remedy

Against Municipalities Directly Under the Fourteenth

Amendment: Congressional Action as an Obstacle to

Extension of the Bivens Doctrine,” 36 Maryland L.

Rev. 123, 145-152 (1976). If ever proper against that

background, the Court’s undertaking independently to

fashion a new federal right of action against a local

governmental entity must surely be based at a

minimum on aconcrete showing of genuine need for

that specific remedy.

The civil rights suit obviously provides access to the

courts to permit vindication of constitutional rights or

redress for their denial, and in that context it certainly

seems anomalous to entertain a claim against one

concededly not even a wrongdoer. This Court has

accordingly held consistently that

“the mere principle of respondeat superior is as

inappropriate a foundation for implying a novel

federal right of action for damages against the

Sa

municipality as for expanding Civil Rights Act

liability to individual superior Mes scthow

personal responsibility for the underlying wrong

cf, €-g., Johnson v. Glick, 481 F.2d 1028, 1034 (2

ir.), cert. denied sub nom Employee-Offi

v. Johnson, 414 U.S. 1033 (1973). oe

Caputo v. City of Bridgeport, Civil No. N-74-203 (D.

Conn. Dec. 16, 1974). See also Gifford v. Rodriguez,

supra, observing that the Fourteenth Amendment

simply “does not incorporate .common law notions of

respondeat superior to make local treasuries available

for the unconstitutional act of every municipal

employee.” In Brault, by contrast, the town was

directly involved in the immediate purported wrong

complained of, its “obtaining and maintaining . . .[an]

injunction . . . under a zoning ordinance that they [sic]

knew, or should have known, to be invalid,” id. at 733

see also Dahl v. City of Palo Alto, 372 F.Supp. 647

(N.D. Cal. 1974) (rezoning). Although a municipal

corporation must a!ways act through its agents, strictly

speaking, municipal participation in or responsibility

for the wrong is at least perhaps a more comprehe sible

notion in the latter type of case than when the link is

solely employment of a policeman accused of

misconduct.

In the present suit, the complaint alleged in part that

plaintiff was subjected to a false arrest on disorderly

conduct charges by two West Haven police officers

attempting to punish the plaintiff for having broughta

civil action against their brother Officer,” the incident

now at issue having occurred two or three months alter

plaintiff had secured a damage award in an earlier civil

rights action against another West Haven policeman.

6a

Apparently in the interim, the city’s board of police

commissioners had allegedly discussed the prior case's

outcome and “decided to take no action against [that]

Officer. . .[he] hadbeenblameless,” so that the city “took

no action of a disciplinary nature.” While contending in

general terms that the city has ‘““employed a police force

which has denied . . . [constitutional] rights to the plaintiff,

and has encouraged and supported the members of said

police force to deny the constitutional and civil rights of the

plaintiff,” the complaint’s specifications are in relevant

part that

“The failure of the City of West Haven to

discipline [the] Officer ... even following the

prosecution of a successful civil suit against him

encouraged police officers of the City ... in the

belief that they could violate the constitutional and

civil rights of citizens with impunity, and

particularly the constitutional and civil rights of

the plaintiff... The City. . .did nothing to reduce

the animosity of its police officers against the

plaintiff, and by failing to discipline [this] Officer

_.. encouraged police officers to give vent to their

feelings of animus and to take action against the

plaintiff.”

This pleading itself clearly indicates that the city did

not act to deny any constitutional right of the plaintiff.

In that regard, it is noteworthy that a Seventh Circuit ruling

upholding a similar complaint against the City of

Chicago and municipal officials with authority over the

police department for consistent failure to investigate -

police misconduct and to take proper disciplinary

measures, “a course of conduct that condones, and in

effect encourages such abusive misconduct,” Calvin v.

7a

Conlisk, 520 F.2d 1, 3 (7 Cir. 1975), was recently

“vacated, and [the] case remanded for further

consideration in light of Rizzo v. Goode, 423 U.S. 362

(1976),” Conlisk v. Calvin, 424 U.S. 902-903 (1976). In

Rizzo, involving a claimed pattern of police

misconduct in Philadelphia, the lower court’s grant of

equitable relief under §1983 directing supervisory city

officials to formulate improved procedures for dealing

with citizen complaints was held unwarranted on the

ground, inter alia, that “the responsible authorities had

played no affirmative part in depriving any members of

the .. . [plaintiff] classes of any constitutional rights,”

id. at 377 The Supreme Court’s refusal in the

circumstances to equate a supervisory officer’s “failure

to act” with “active conduct,” id. at 376 (emphasis

original), would seem to have extended beyond a mere

weighing of the appropriateness of the particular relief

afforded, to the conclusion that the defendant

officials’ inaction did not there amount toa violation of

constitutional rights, see id. at 377. Such a conclusion is

of potentially equal significance for the §1983 claim

against municipal employees in command positions,

the §1331 claim for injunctive relief against a city

actually entertained in Calvin v. Conlisk, supra at 8-

10, and the purported §1331 damage claim here

advanced.

The distinction between omission and commission

can be elusive, however, and an invariably rigid

conceptual analysis would be improvident. The

traditional Civil Rights Act, after all, was prompted by

a state of affairs which could be characterized as “the

failure of certain States to enforce the laws with an

equal hand,” Monroe v. Pape, supra, at 174. But a

8a

denial of right by culpable failure to act is perhaps more

easily and naturally perceived in the case of the

individual official within § 1983's established reach; the

law enforcement officer who deliberately turns a blind

eye to the kidnapping of his prisoner by self-appointed

vigilantes, for example, can hardly claim that he “did”

nothing wrong. The analogy to a town government's

inertia is less compelling, and any sensible attribution

of responsibility in such a diffuse manner conceivably

would even call for a more demanding test for finding

“town” liability than for assigning responsibility to

individual officials of higher and lower stations. Asa

practical matter, absent some affirmative policy-

making step the municipal liability claim is likely to

rely on the doctrine of respondeat superior under one

guise or another. In any event, identifying a difference

between inaction and improper action is no artificial

semantic exercise in the instant lawsuit; there is here no

genuinely substantial contention of local government

participation in wrongdoing.

Unlike the situation in Bivens, supra at 390-397,

plaintiff has not been denied a right of suit against

those persons directly accused of violating his

fundamental civil rights. If at all pertinent, additional

arguments that recognition of an alternative or

supplemental federal remedy against the individual

defendants’ municipal employer is essential for

‘ncreased deterrence, and collection of any judgment,

are speculative in this instance and may in many Cases

rest on unexamined assumptions, see Comment,

“Implying A Damage Remedy,” supra, at 142-143.

Ironically enough in this context, the present

complaint actually alleges that the “damages for which

9a

[the] Officer. . .was found liable [in the prior suit] were

in fact paid by the insurance carrier for the City of West

Haven”; nor has plaintiff attempted to demonstrate

that these individual defendants are judgment proof

compare Moor v. County of Alameda, supra, n. 10 at

700. Even assuming that the city does not “stand

behind” the defendant officers financially in some

manner, compare, €.g., Gifford v. Rodriguez, supra

with Gonzalez v. Doe, 476 F.2d 680, 686 (2 Cir 1973),

the Court is not convinced that the novel federal cause

of action sought may be properly “implied” in this case

In short, plaintiff has no actionable claim against the

municipality under §1983, and presents no compelling

reason for judicial recognition of such a claim directl

under the Constitution. The complaint’s or sieaiee

cryptic reference to 42 U.S.C. §1988, the limited civil

rights “borrowing” provision, gives rise to no

substantive federal claim, see Moor v. County of

Alameda, supra at 698-710. Plaintiff also does allude to

unspecified pendent “causes of action under state law

sounding in tort,” possibly including a purported ciaim

for municipal indemnification, cf. Conn. Gen. Stat. §7-

465, but this Court is not empowered to exercise

pendent jurisdiction over any state law claim against

the defendant city with no federal claim against it

ti in the case, Al/dinger v. Howard, 427 U.S. |

The defendant City of West Haven’s pending motion

to dismiss is accordingly granted. The complaint is

hereby dismissed as against that defendant, the

purported federal claims for failure to state a claim

upon which relief can be granted, Rule 12(b)(6), Fed

R. Civ. P., and any intended state law claims for lack of

10a

federal jurisdiction, Rule 12(b)(1), Fed. R. Civ, P.,

without prejudice to assertion of the latter in state

court.

Dated at New Haven, Connecticut this 9th day of

May, 1977.

United States Magistrate

SO ORDERED

United States District Judge

Ib

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

THOMAS TURPIN

Vv. : CIVIL NO.

N-75-181

JOSEPH MAILET and JOHN DOE, — : myn pens

individually and as police

officers of the Police Bef nae |”

Department of the Town of hla

West Haven and TOWN OF WEST HAVEN ~ ,,

of Ot

to

PARTIAL JUDGMENT

This cause having come on for consideration on

defendant’s (Town of West Haven) motion to dismiss

before the Honorable Arthur H. Latimer, United

States Magistrate, and said Magistrate having filed a

Ruling on Motion to Dismiss (approved by the Court,

Newman, J.) on May 13, 1977, granting said motion,

IT IS ORDERED and ADJUDGED that judgment

be and is hereby entered in favor of the defendant

TOWN OF WEST HAVEN, only, dismissing the

complaint for failure to state a claim upon which relief

can be granted, Rule 12(b)(6), Fed. R. Civ. P., and any

intended state law claims for lack of federal

jurisdiction, Rule 12(b)(1), Fed. R. Civ. P., without

prejudice to assertion of the latter in state court.

Dated at New Haven, Connecticut, this 17th day of

May, 1977.

ek

7 7"

2b le

SYLVESTER A. MARKOWSKI APPENDIX C

CLERK,

UNITED STATES DISTRICT COURT UNITED STATES DISTRICT COURT F {Ff

DISTRICT OF CONNECTICUT

BY: Aue 2 Bashy ell

THOMAS TURPIN : evpir r

- ~ < U.S DISTRICT COUR

wisn 4 . oe NEW HAVEN, Cots

V. : CIVIL NO.

N-75-181

JOSEPH MAILET, ET AL

RULING ON PLAINTIFF'S MOTION

FOR RULE 54(b) CERTIFICATION

Plaintiff instituted this suit against the Town of West

Haven and individual police officers of the Town

seeking damages for an arrest alleged to be false and

motivated by a prior successful civil rights suit. The

claim against the Town was founded directly on the

Fourteenth Amendment with jurisdiction based on 28

U.S.C. §1331. In a carefully reasoned opinion, wiaich

fully reckoned with the difficulties of the issues

presented, Magistrate Latimer recommended that the

motion of the Town to dismiss be granted, and this

Court adopted that recommendation. The plaintiff has

now moved for a direction that judgment be entered

upon the dismissed claim, pursuant to Fed. R. Civ. P.

54(b). Magistrate Latimer has recommended against

the Rule 54(b) certification, but this Court concludes

that it is entirely appropriate in the circumstances of

this case.

The Magistrate based his current recommendation

in part on the assumption that the claim against the

2c

Town may never be established since, in his view, a

finding of liability on the part of the individual officers

is a prerequisite to municipal liability. While it is not

necessary to adjudicate that question authoritatively

on this motion, the proposition is by no means certain

and should not preclude Rule 54(b) certification. Since

the liability of the Town in cases as this is not alleged to

be based on respondeat superior but rather on the

direct responsibility of the Town, it is at least plausible

to argue that the claim against the town could succeed

even if the officers were exonerated because each had

established his good faith defense.

The issue of whether this complaint states a cause of

action against the Town is an important issue that

deserves appellate consideration. There are

approximately thirty lawsuits pending in this District

in which similar claims founded on the Fourteenth

Amendment have been brought against municipalities

for their alleged responsibility for wrongful police

action. Whether the municipality continues as a

defendant during the course of these lawsuits has an

important bearing on their conduct, on trial strategy,

and on settlement possibilties. Moreover, th: claim

alleged in this suit, while deemed by the Magistrate and

this Court to be insufficient to state a valid cause of

action, probably comes the closest of all these suits to

the line established by the decision in this case. Thus a

decision upholding the dismissal will provide

authoritative guidance for the other cases; conversely,

an appellate decision reinstating the ciaim in this case

would presumably provide sufficient elucidation of the

appropriate standard to 5> of material assistance in

determining which of the other claims against

municipalities should proceed to trial.

3c

Thus, the entry of judgment in favor of West Haven

in this case at this time will significantly contribute to

the expeditious conduct of civil litigation in this

District as well as provide guidance for the litigating

posture of numerous municipalities currently de-

fendants'in other pending suits. Not only is there no

reason for delay in the entry of judgment, there is

substantial reason for not delaying. Accordingly, the

Court finds for the reasons stated that there is no just

reason for delay in the entry of judgment and expressly

directs the Clerk to enter judgment dismissing the

plaintiff's claim against the Town of West Haven.

Dated at Hartford, Connecticut, this ___ day of

August, 1977.

Jon O. Newman

UNITED STATES DISTRICT JUDGE

United States District Judge

Id

APPENDIX D

UNITED STATES DISTRICT COURTF || F [)

DISTRICT OF CONNECTICUT

Aue 3 352 PHT

U.S. DISTRICT CQuUF:

NEW HAVEN, COMM

THOMAS TURPIN

v. : CIVIL NO

N-75-181

JOSEPH MAILET, ET AL

JUDGMENT AS TO DEFENDANT

TOWN OF WEST HAVEN

This cause having come on for consideration on

plaintiff's motion to Amend Partial Judgment entered

on May 17, 1977, before the Court (Newman, J.) anda

Ruling on Plaintiffs Motion for Rule 54(b)

Certification having been filed by the Court on August

2, 1977, having determined that there is no just reason

for delay and having directed the Clerk to enter

judgment, dismissing the plaintiff's claim against the

Town of West Haven.

It is ORDERED and ADJUDGED that judgment

be and is hereby entered in favor of the defendant

TOWN OF WEST HAVEN only dismissing this

action, with its costs.

Dated at New Haven, Connecticut this 3rd day of

August, 1977.

SYLVESTER A. MARKOWSKI

Clerk, United States District Court

By:

Deputy In Charge

APPENDIX E

The Opinion of the Court of Appeals

in Thomas Turpin v. City of West Haven

has not been filmed and can be found at

46 LW. 2658.

If

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in

the City of New York, on the _________ day of

one thousand nine hundred and

Present:

HON. IRVING R. KAUFMAN HON. JAMES L. OAKES

Chief Judge HON. WILLIAM H. TIMBERS

HON. WILFRED FEINBERG HON. MURRAY I. GURFEIN

HON. WALTER R. MANSFIELD HON. ELLSWORTH A. VAN

HON. WILLIAM H. MULLIGAN GRAAFEILAND

HON. THOMAS J. MESKILL

Circuit Judges,

AWN ES COURT OFS

THOMAS TURPIN, fed 3 pee

Plaintiff- Appellant,

Ve

JOSEPH MAILET and JOHN DOE,

individually and as Police Officers of the Police ~*~ ~=2.2.=-— ~~

Department of the Town of West Haven,

Defendants- Appellees. 77-7345

Appeal from the United States District Court for the

District of Connecticut

This cause came on to be heard on the transcript of

record from the United States District Court for the

District of Connecticut, and was argued by counsel.

2f

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the Judgment of said

District Court be and it hereby is reversed and the action be

and it hereby is remanded to said district court for further

proceedings in accordance with the opinion of this court with

costs to be taxed against the appellees.

A. DANIEL FUSARO,

Clerk

By /s/ Arthur Heller

Deputy Clerk