# Petition — City of West Haven v. Turpin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 974

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1643%3A1. Public record. Not legal advice.