Petition — McManus v. Village of Southhampton

83-1658

No.

[Office - Supreme Court, U.S.

FILED

APR 10 {984

ALEXANOER L. STEVAS.

CLERK

Supreme Court of the United States

Ocroser Term, 1983

IN THE

JAMES F. McMANUS,

Petitioner,

VS.

THE VILLAGE OF SOUTHAMPTON, NEW YORK,

THE TOWN OF SOUTHAMPTON, NEW YORK,

DONALD FANNING and JAMES CHISM,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

James F. McManus, Esq.

Attorney for Petitioner - Pro Se

One Center Lane

Levittown, New York 11756

(516) 731-6400

April 10, 1984

QUESTION PRESENTED FOR REVIEW

1. Should the Eastern District of New York have dismissed

the complaint (Appendix E) as to the Village of Southhampton

New York and the Town of Southhampton New York.

TABLE OF CONTENTS

Page

Question Presented for Review ................. i

Table of Combemts .... 2.5 050550855 ii

Table of Authorities ........5<.+.) 5) iii

Preliminary Statement .. ....6:.s«s«ssaueueee l

Juriediction . ........ «0.50050 ue ene l

Statutes Involved ..........cssseeueese eee l

Statement of the Case .......2..5555 4) 2

Reason for Granting Welt... 2. . «2.553050 3

Arqament .... 2.0600 000s sue eee en 4

Conchusion ..........200sssa00ne eee 7

Appendix

Appendix A

United States Court of Appeals for the Second

Circuit Order ........+.s0005 oe A-l

Appendix B

United States District Court Eastern District of

New York Oudler .......20<s5550 ee B-1

Appendix C

United States District Court Eastern District of

New York judsument . ....s6..<55058 see C-1

Appendix D

United States District Court Eastern District of

New York Declstem ...<....<50s5550 D-1

Appendix E

United States District Court Eastern District of

New York Complaiat .....s.¢scss0 eee E-1l

TABLE OF AUTHORITIES

Cases:

Aldinger v. Howard, 427 U.S. 1,19 ............

Battista v. Rodriguez, 702 F 2d 393 .............

Corey v. Gibson, 355 U.S. IV; 45-46 ete ........

Monell v. New York City Department of Social Ser-

vices, 436 U.S. 658, 694 (1978) ................

Owen v. City of Independence Missouri, 445 U.S. 622

Constitution and Statutes

8 ol "|

28 U.S.C. Sections 1331, 1343(1)(2)(3)and(4).....

42 U.S.C. Sections 1963, 1968 .................

Fourth Amendment of the U.S. Constitution.....

Fifth Amendment of the U.S. Constitution ......

Sixth Amendment of the U.S. Constitution ......

Fourteenth Amendment of the U.S. Constitution .

i chien seb ceeath

Legislative Material

49 Fordham Law Review 895, 901 .............

IN THE

Supreme Court of the United States

OctrosBer Term, 1983

JAMES F. McMANUS,

Petitioner,

— against —

THE VILLAGE OF SOUTHAMPTON, NEW YORK,

THE TOWN OF SOUTHAMPTON, NEW YORK,

DONALD FANNING and JAMES CHISM,

Respondents.

PETITION FOR WRIT OF CERTIORARI

PRELIMINARY STATEMENT

Petitioner James F. McManus petitions this Court for a writ

of certiorari to review the judgment of the United States Court

of Appeals for the Second Circuit dated and entered January

13, 1984 (Docket No. 83-7590). The judgment affirmed

judgements of the Eastern District of New York (Pratt J.)

dismissing a complaint in so far as the Village of Southhamp-

ton, New York and the Town of Southhampton New York were

concerned.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28USC

Section 1254(1).

STATUTES INVOLVED

Statutes Involved 42 U.S.C. Sections 1983, 1988 and the

Fourth, Fifth, Sixth and Fourteenth amendments of the U.S.

Constitution and 28 U.S.C. Sections 1331, 1332, 1343(1)(2)(3)

and (4) and pendent jurisdiction to consider claims arising under

State Law.

STATEMENT OF THE CASE

This is a proceeding to reverse a judgment (Appendix A) of

the U.S. Court of Appeals for the Second Circuit wherein it af-

firmed two orders of the U.S. Eastern District of New York

(Pratt J.) the first of which granted a motion to dismiss the com-

plaint against the Town of Southampton New York (Appendix

D) and the second of which granted one part ot a similar mo-

tion to dismiss the same complaint against the Village of

Southampton New York (Appendix B) but denied that part of

the motion which sought a dismissal against individual defen-

dants James Chism and Donald Fanning.

The trial of the matter by a jury against the two (2) remain-

ing individual defendants was held before a Magistrate and judg-

ment was entered on behalf of your Petitioner as a plaintiff

therein against the defendant Donald Fanning in the sum of

Five Hundred ($500.00) Dollars and against your Petitioner as

plaintiff therein, in favor of the defendant James Chism.

Your petitioners motion to vacate a stipulation so that the

Court of Appeals could review everything was successfully op-

posed by the law firm simultaneously representing the defen-

dants, The Village of Southampton New York, James Chism

and Donald Fanning.

Your petitioner as plaintiff accordingly filed a Notice of Ap-

peal whereby the Court of Appeals could review the final judg-

ment dismissing as to the Town & Village and whereby the

Eastern District Court may review the judgments as they per-

tain to the defendants Chism and Fanning in the event that your

petitioner does not prevail herein.

Nevertheless shortly before the Circuit Court of Appeals heard

the matter the individual defendant James Chism through a firm

of attorneys which specializes in “P.B.A.” matters served a Five

Million ($5,000,000.00) Dollar suit for “malicious prosecution”

and “slander” in a New York State Supreme Court matter. Your

petitioner has duly served an answer therein, with affirmative

defenses referring to the aforesaid appeals.

REASON FOR GRANTING WRIT

It is respectfully submitted that Judge Pratt’s actions as af-

firmed by the Second Circuit departed so far from the accepted

course of judicial proceedings in dismissing the complaint at

the pleadings stage that same calls for an exercise of this Court’s

power of supervision. It is further respectfully submitted that

no less than the Chief Judge of the State of New York in an ad-

dress “Waste Not-Wait Not-a Consideration of Federal and State

Jurisdiction” was caustic about the Second Circuit's attitudes

on “1983” suits. Such is reported in 49 Fordham LR 895,901

where at page 901 thereof there is a further reference to 12

Creighton L. R. Rev 1, 23-24 (1978)

ARGUMENT

I. The U.S. Court of Appeals for the Second Circuit in quoting

Battista v. Rodriguez, 702 F 2d 393 would have one overlook

the following at page 397 thereof

A plaintiff, suing under Section 1983 while obligated

to make “a short and plain statement” of the essen-

tial elements of his claim in his complaint, Fed. R.

Civ P 8(a) is not required to see out the facts is detail.

The complaint will survive dismissal “unless it appears

beyond doubt that plaintiff can prove no set of facts

in support of his claim which would entitle him to

relief” Corley v. Gibson, 355 U.S. IV; 45-46 etc.

It is also submitted that while Monell v. New York City

Department of Social Services, 436 U.S. 658, 694 (1978) as relied

upon by the U.S. Court of Appeals for the Second Circuit has

begun to admit that a municipality may be sued under section

1983 other cases such as Owen v. City of Independence Missouri,

445 U.S. 622 have recognized that the scope of 42 U.S.C. 1983

should not have been so restricted by judicial interpretation as

it has been. Indeed I respectfully submit that the dissent in

Aldinger v. Howard, 427 U.S. 1, 19 should be reviewed together

with its references to Congressional records by the Court in con-

nection with this matter in view of all the later recognition of

the responsibilities and liabilities of municipalities in cases decid-

ed since Monell.

The “demonstrably untenable” result or conclusion reached

in Aldinger v. Howard at page 19 thereof to the effect that Con-

gress has by implication declined to extend federal jurisdiction

over a party such as a county has surely been demonstrably

negated by this court’s recognition that a municipality is a “per-

son” in such cases as Owen v. City of Independence Missouri,

446 U.S. 622.

It is noted that your Petitioner herein framed his complaint

using a good example supplied him at a seminar of the Suffolk

Academy of Law of the Suffolk County Bar Association on May

16, 1981!

Surely if the people of a political subdivision should elect or

select a person as sheriff or police officer who was a bully, a

bigot, a racist, a drunkard and/or an idiot, the same people

would be liable for his or her misdeeds in warrantless “ig-

nomious” arrests of other people. A plaintiff should not be oblig-

ed to plead such nor should he be obliged to plead that a town

or a Village while having the obligation to do so, failed to pro-

perly screen and instruct a person before dubbing him or her

with arrest powers. Your petitioner respectfully insists that the

complaint herein should have in no wise been dismissed as

against the Town and Village at the pleading stage. It is noted

that Judge Pratt orders dismissing the complaint as against such

municipal defendants negated my “Requests for Production of

Documents” whereby I could conduct proper measures before

trial to proceed to demonstrate to a jury's satisfaction, subject

to a proper charge, the amounts that it could assess against each

of the respective defendants for punitive and compensatory

damages relative to:

1. unconstitutional arrest

2. negligence

3. malicious prosecution

I submit that the U.S. Court of Appeals further erred where

it would hold that the pendent jurisdiction claims were also

dismissed within Judge Pratt's discretion. The separate firms

of attorneys for the Town and Village employed by the In-

surance Company of North America did not contend that it

would have been an abuse of Judge Pratt's discretion for him

not to have dismissed the claims arising only by virtue of state

law such as the injuries to plaintiff's wrists. Indeed they could

hardly have maintained such in view of the following from

Judge Pratt’s dismissal order: (Appendix B)

“Defendants also contend that plaintiff should be re-

quired to elect to proceed against defendant Fann-

ing in only one of his official capacities. Apparently,

Fanning is both a town employee and a village

employee. At this stage in the litigation it appears that

the capacity in which Fanning was acting at the time

of the incident leading to this lawsuit is an issue of

fact that can only be determined at the trial of this

action. Since defendant Fanning could have acted

under color of state law for purposes of 42 U.S.C. 1983

in either of his official capacities, it is unnecessary and

unfair to force plaintiff to elect to proceed against

defendant in only one capacity.”

After he had recognized that: “at oral ergument in the mo-

tion, plaintiff explained that he does not intend to pursue a cause

of action for assault or unconsittutional use of force, and that

his complaint should be construed as setting forth causes of ac-

tion for unconstitutional arrest, malicious prosecution and

negligence in securing the handcuffs on plaintiff. Although

plaintiff may not have set forth all of the technical elements

of these causes of action, defendants are now on notice of precise-

ly those claims that plaintiff intends to pursue.”

Surely the Supreme Court will agree that Judge Pratt abus-

ed any discretion that could be claimed on his behalf when he

dismissed the complaint against the employers of the defendants

Chism and Fanning.

Judge Pratt's actions seriously prejudiced your petitioner when

he left the jury in the dark as to where indemnification might

come for the two (2) remaining defendants and precluded a fair

trial.

It must be appreciated that the term “unconstitutional ar-

rest” encompasses not only a person’s “1983” and “1343(3)”

claims but his rights to have realistic redress for “false arrest”-

fundamental rights which go back to days prior to the adop-

tion of the Federal and New York Constitutions and the enact-

ment of such legislation as “1343(3)” and “1983”.

“1983” should not be viewed as a judicial vehicle by which

a person's rights in effect would be limited rather than enforced.

~

CONCLUSION

FOR THE FORGOING REASONS, THIS PETITION FOR

A WRIT OF CERTIORARI SHOULD BE GRANTED AND

THE JUDGMENT OF THE SECOND CIRCUIT SHOULD BE

REVERSED SO THAT PETITIONER MAY HAVE A NEW

TRIAL INVOLVING ALL FOUR DEFENDANTS.

Respectfully submitted,

James F. McManus

Attorney for Petitioner-Pro Se

1 Center Lane

Levittown, New York 11756

(516) 731-6400

im

a i ar

A-l

APPENDIX A

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT ORDER

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 i3th day of January, one thousand

nine hundred and eighty-four.

Present:

HONORABLE IRVING R. KAUFMAN,

HONORABLE JAMES L. OAKES,

HONORABLE RICHARD J. CARDAMONE,

Circuit Judges.

JAMES F. McMANUS,

Plaintiff-Appellant,

— against —

THE VILLAGE OF SOUTHAMPTON, NEW YORK;

THE TOWN OF SOUTHAMPTON, NEW YORK,

Defendants-Appellees,

DONALD FANNING and JAMES CHISM,

Defendants.

A-2

Appeal from the United States District Court for the Eastern

District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Eastern District

of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the judgment of said

District Court be and it hereby is affirmed.

N.B. Since this statement does not constitute a for-

mal opinion of this court and is not uniformly

available to all parties, it shall not be reported, cited

or otherwise used in unrelated cases before this or any

other court.

1. Appellant seeks to reverse so much of the judgment

as dismisses his allegations against the Town of

Southampton and the Village of Southampton.

Judge Pratt correctly ordered the civil rights allega-

tions, 42 U.S.C. §§ 1983, 1988, dismissed against

the two municipalities. McManus’s only basis for

the complaints against the Town and Village is the

employment status of the named defendants

Donald Fanning and James Chism. The complaint

does not allege that Fanning or Chism acted in fur-

therance of official policy or as part of a repeated

practice in which municipal officials acquiesced.

Accordingly, no cause of action against the Town

or Village is stated in the complaint, and the allega-

tions were properly dismissed. See Battista v.

Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983);

Monell v. New York City Department of Social Ser-

vices, 436 U.S. 658, 694 (1978).

2. The pendent jurisdiction claims against the Town

and the Village were also properly dismissed within

the trial judge's discretion, see Nolan v. Meyer, 520

A-3

F.2d 1276, 1280 (2d Cir.), cert. denied, 423 U.S. 1034 (1975).

There is no independe it federal subject matter jurisdiction over

McManus’s actions against the municipal defendants, since

diversity does not exist and the civil rights allegations are in-

sufficient as a matter of law to state a federal question. Pen-

dent jurisdiction is not available in such a situation. Aldinger

v. Howard, 427 U.S. 1, 17 (1976).

3. Appellant's other assertions are equally without merit.

4. Accordingly, the judgment is affirmed.

IRVING R. KAUFMAN,

JAMES L. OAKES,

RICHARD J. CARDAMONE,

Circuit Judges.

B-1

APPENDIX B

United States District Court Eastern District of New York

Memorandum and Opinion

JAMES F. McMANUS

Plaintiff,

— against —

THE VILLAGE OF SOUTHAMPTON, NEW YORK,

THE TOWN OF SOUTHAMPTON, NEW YORK,

DONALD FANNING and JAMES CHISM,

Defendants.

MEMORANDUM AND ORDER DOCKET NO. CY81-318

APPEARANCES:

James F. McMANus

Plaintiff Pro Se

One Center Lane

Levittown, New York 11756

Montrort, HEALY, MCGulIRE

& SALLEY

Attorneys for LC fendants

163 Mineola Boulevard

Mineola, New York 11501

PRATT, J:

By inotion returnable January 27, 1982 defendants move to

dismiss the complaint because it does not contain “a short and

plain statement of the claim[s] showing that the pleader is entitl-

ed to relief” in violation of FRCP 8(a), or, alternatively, for an

order compelling plaintiff to file an amended complaint. In ad-

dition, defendant village moves to dismiss the complaint in its en-

tirety because the allegations against it are legally insufficient as

a matter of law. After considering the issues discussed in the papers

and at oral argument on the motion, the court concludes that

the village’s motion to dismiss should be granted, but that it is

unnecessary for the plaintiff to file an amended complaint set-

ting forth his allegations and causes of action with particularity.

B-2

Plaintiff's complaint named both the Village and the Town

of Southampton as parties defendants. The court has previous-

ly granted defendant town’s motion to dismiss, and defendant

village moves to dismiss for essentially the same reasons that

required dismissal of the town. The only theory of liability upon

which plaintiff has sued the defendant village is that of

respondeat superior. Since plaintiff does not allege that the in-

dividual defendants were acting pursuant to any official policy

or custom of the municipality at che time they arrested plain-

tiff, the village cannot be held liable for the actions of the in-

dividuals. Monell v. Department of Social Services, 436 US 658

(1978); Turpin v. Mailet, 619 F2d 196 (CA 2 1980). Under these

circumstances, the complaint does not state a cause of action

against the village and must be dismissed.

At oral argument on the motion, plaintiff explained that he

does not intend to pursue a cause of action for assault or un-

constitutional use of force, and that his complaint should be

construed as setting forth causes of action for unconstitutional

arrest, malicious prosecution, and negligence in securing the

handcuffs on plaintiff. Although plaintiff may not have set forth

all of the technical elements of these causes of action, defen-

dants are now on notice of precisely those claims that plaintiff

intends to pursue.

Defendants also contend that plaintiff should be required to

elect to proceed against defendant Fanning in only one of his

official capacities. Apparently, Fanning is both a town employee

and a village employee. At this stage in the litigation, it ap-

pears that the capacity in which Fanning was acting at the time

of the incident leading to this lawsuit is an issue of fact that

can only be determined at the trial of this action. Since defen-

dant Fanning could have acted under color of state law for pur-

poses of 42 USC § 1983 in either of his official capacities, it is

unnecessary and unfair to force plaintiff to elect to proceed

against defendant in only one capacity. Accordingly, the court

will not require plaintiff to file an amended pleading for this

purpose.

B-3

At argument on the motion, the court also discussed with

plaintiff and defense counsel the time necessary to complete

pretrial proceedings. Plaintiff stated that most of his discovery

was complete, and defense counsel requested four months in

which to complete any necessary discovery. Defendants shall

file a responsive pleading within twenty days and shall respond

to plaintiff's request for the production of documents within

thirty days. In addition, the following pretrial schedule is

adopted:

May 31, 1982 All Discovery to be completed.

June 18, 1982 Plaintiff's proposed pretrial order to

be submitted

July 2, 1982 Defendants’ additional schedules for

inclusion in the pretrial order to be

submitted.

July 13, 1982 Pretrial conference.

at 9:00 a.m.

August, 1982 Term for trial.

July 30, 1982 Jury selection.

The village’s motion to dismiss is granted; the motion to com-

pel an amended statement of plaintiff's claims is denied. In-

cluded with this memorandum and order are the court's instruc-

tions for completion of the pretrial order.

SO ORDERED.

Dated: Uniondale, New York

February 4, 1982

S

GeorceE C. PRATT

U.S. District Judge

C-1

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

JUDGMENT

Judgment in a Civil Case

United States District Court

Eastern District of New York

Docket Number CV 81-3113

Case Title:

JAMES McMANUS

Vv.

THE VILLAGE OF SOUTHAMPTON ET AL

David F. Jordan, U.S. Magistrate

XXJury Verdict. This action came before the Court and ajury

with the judicial officer named above presiding. The issues have

been tried and the jury has rendered its verdict.

— Decision by Court. This action came to trial or hearing before

the Court with the judge (magistrate) named above presiding.

The issues have been tried or heard and a decision has been

rendered.

It is ordered and adjudged that judgment is hereby entered

in favor of James F. McManus and against Donald Fanning in

the sum of $500.00 with cost to James McManus; that judgment

is entered in favor of James Chism and against James McManus,

dismissing the complaint against James Chism with cost to James

Chism; that judgment is entered in favor of the Town of

Southampton and against James McManus, dismissing the com-

plaint against the Town of Southampton with cost to the Town

of Southampton, as per the order of the honorable George C.

Pratt, United States Circuit Judge, having been filed on

December 21, 1981; and that judgment is entered in favor of

the Village of Southampton and against James McManus,

dismissing the complaint against the Village of Southampton

with cost to the Village of Southampton, as per the memoran-

dum and order of the honorable George C. Pratt, United States

Circuit Judge, having been filed on February 8, 1983.

Clerk

Richard H. Weare

(By) Deputy Clerk

S April 5, 1983

D-1

APPENDIX D

U.S. DISTRICT COURT EASTERN DISTRICT OF

NEW YORK DECISION

December 16, 1981

United States Bistrict Court

Eastern District of New Bork

JAMES F. McMANUS,

Plaintiff,

— and—

THE VILLAGE OF SOUTHAMPTON, NEW YORK,

THE TOWN OF SOUTHAMPTON, NEW YORK,

DONALD FANNING and JAMES CHISM,

Defendants.

NOTICE OF MOTION IS NOT REPRODUCED BECAUSE

IT IS NOT PERTINENT,

THE JUDGE'S DECISION ON THE TOWN’S MOTION

TO DISMISS THE COMPLAINT WAS ENDORSED

ON THE FACE OF THE NOTICE OF

MOTION ITSELF. IT READS AS FOLLOWS:

“MOTION GRANTED, ACTION DISMISSED

AGAINST TOWN OF SOUTHAMPTON

SO ORDERED.”

Georce C. Pratt, U.S.D.J,

Uniondale, New York

12/16/81

E-1

APPENDIX E

U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

COMPLAINT

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

CIVIL ACTION NO,

TRIAL BY JURY REQUESTED

JAMES F. McMANUS,

Plaintiff,

— against —

THE VILLAGE OF SOUTHAMPTON, NEW YORK;

THE TOWN OF SOUTHAMPTON, NEW YORK,

DONALD FANNING and JAMES CHISM,

Defendants.

Complaint for Damages

JAMES F. McMANUS

Attorney for Plaintiff

Office and P.O. Address

1 Center Lane

Levittown, New York |1756

E-2

IN THE

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

CIVIL ACTION NO.

TRIAL BY JURY REQUESTED

JAMES F. McMANUS,

Plaintiff,

— against —

THE VILLAGE OF SOUTHAMPTON, NEW YORK;

THE TOWN OF SOUTHAMPTON, NEW YORK,

DONALD FANNING and JAMES CHISM,

Defendants.

Complaint for Damages

TO THE HONORABLE, THE JUDGES OF THE

DISTRICT COURT OF THE UNITED STATES, IN

AND FOR THE EASTERN DISTRICT OF NEW

YORK

Comes now JAMES F. McMANUS as plaintiff and as his At-

torney Pro Se institutes this his cause of action against the above-

named defendants, and pleads and prays as follows:

JURISDICTION

1, This is a Civil Action for damages brought pursuant to 42

U.S.C. Sections 1983 and 1988 and the Fourth, Fifth, Sixth and

Fourteenth amendments of the United States Constitution.

Jurisdiction is founded on 28 U.S.C. Sections 1331, 1332,

1343(1), (2), (3), (4), and the aforernentioned statutory and Con-

stitutional Provisions. Plaintiff further involves the pendent

jurisdiction of this Court to consider claims arising under State

Law.

E-3

2. The amount in controversy exceeds $10,000.00 excluding

interest and costs.

PARTIES

3. Plaintiff, JAMES F. McMANUS, is a citizen of the United

States and resident of the State of New York.

4. The defendant, TOWN OF SOUTHAMPTON, is a

municipal corporation of the State of New York and at all times

relevant hereto employed the defendant DONALD FANNING.

5. The defendant, VILLAGE OF SOUTHAMPTON, is a

municipal corporation of the State of New York and at all times

relevant hereto employed the defendants DONALD FANNING

and JAMES CHISM.

6. The defendant, JAMES CHISM, is and at all times rele-

vant hereto a police officer sergeant of the POLICE DEPART-

MENT OF THE VILLAGE OF SOUTHAMPTON acting in

such capacity as the agent, servant and employee of the defen-

dant VILLAGE OF SOUTHAMPTON, New York. He is sued

individually and in his official capacity.

7. The defendant, DONALD FANNING, is and at all times

relevant hereto a police officer of the Town of Southampton,

and a truck driver employee of the Village of Southampton ac-

ting in such capacities as the agent, servant and employee of

the Town of Southampton and the Village of Southampton. He

is sued individually and in his official capacities.

8. At all times relevant hereto, and in all their actions describ-

ed herein, the individual defendants were acting under color

of law and pursuant to their respective authority as police of-

ficers of the municipalities Village of Southampton and Town

of Southampton.

E-4

FIRST COUNT

9. At 12:55 P.M. on July 2, 1980 the defendant DONALD

FANNING acting in a triple capacity as a citizen, as an employee

heavy truck driver of the Highway Department of the Village

of Southampton and as a policy officer of the Town of

Southampton (flashing Shield #209) having used the radio

facilities of the Village of Southampton to summons them, re-

quested the assistance of police of the Village of Southampton

to arrest plaintiff. Disregarding the provisions of sub-section

4 of Section 140.40 of the Criminal Procedure Law of the State

of New York the defendant JAMES CHISM ordered police of-

ficer Shield #5 of the Village of Southampton, after delibera-

tion at a sidewalk conference or Kangaroo Court with the defen-

dant DONALD FANNING and his Village Highway Depart-

ment Foreman, to accompany aforesaid defendant DONALD

FANNING and himself into the premises of the BUTTERY

Restaurant on Wall Street, Southampton, New York where

plaintiff was partaking of a lunch of an ordered “Reuben” sand-

wich and a glass of water in the company of his wife.

10. Whereupon the aforesaid defendant DONALD FANN-

ING with deliberation, malice and without probable cause

touched plaintiff muttering he was arresting plaintiff for “harass-

ment.” That plaintiff asked the said defendant JAMES CHISM

if he could finish his lunch and the defendant JAMES CHISM

said “NO”! Whereupon the aforesaid Village police officer Shield

#5 at the direction of the defendant JAMES CHISM ordered

plaintiff to put his hands behind his back, abruptly clamped

handcuffs on plaintiff's wrists and in doing so caused pain, abra-

sions and contusions.

1]. Whereupon said Village police officer ordered him into

the caged rear seat thereof with his hurting handcuffed wrists

under and behind him causing additional pain, upset, contu-

sions, abrasions, unnecessary and undue stress and a rise in blood

pressure.

12. That when plaintiff complained of the pain to the defen-

dant JAMES CHISM the defendant JAMES CHISM retorted

that “your wrists are very big, and if you threaten to sue for

false arrest 17] make an additional charge of “harassment”.

o 13. That plaintiff requested that he be brought promptly

before a magistrate whereupon he was advised that he had to

be taken to the Village Police Station although an appropriate

local criminal court was then and there available and

functioning.

14. At the Village Police Station plaintiff was unlawfully de-

tained and unduly delayed by “paper work” including the

preparation of a uniform traffic ticket of the “SOUTHAMPTON

VILLAGE POLICE DEPT.” which was then and there signed

and served upon him by the defendant DONALD FANNING.

15. The defendant JAMES CHISM then refused to issue an

appearance ticket on the “harassment” charge saying “you re-

quested to be brought before a magistrate” and refused to let

plaintiff speak to his superiors claiming he was in “FULL

CHARGE”.

16. Whereupon after further calculated undue delay and im-

prisonment where plaintiff's wife was not allowed to visit or

consult with plaintiff, plaintiff was again handcuffed, put in

the rear caged seat of a Village police car and driven through

the streets of Southampton to the Town Court of the Town of

Southampton.

17. Plaintiff then and there observed the defendant DONALD

FANNING swearing to a purported information, and plaintiff

was given a blurred copy of same!

18. That on the 2nd day of July 1980 the defendant JAMES

CHISM, when he assisted in the arrest of the plaintiff as a charge

pursuant to Section 240:25 Subd. 3 of the New York State Penal

Law, had been a police officer for defendant VILLAGE OF

SOUTHAMPTON for same thirteen (13) years, was familiar

with Main Street in the Village of Southampton for same thir-

teen (13) years knew that the distance from Hampton Road to

Wall Street on Main Street was only some six hundred (600)

feet and that southbound traffic on Main Street at all times rele-

vant hereto was “bumper to bumper”.

19. That on the 2nd day of July 1980 the defendant DONALD

FANNING, when he charged plaintiff with violation of Sec-

tion 240.25 Subd. 3 of the New York State Penal Law had been

a resident of the Village of Southampton for some forty nine

(49) vears, had on information and belief been born on Hamp-

ton Road in the Village of Southampcon (as had his father), the

said DONALD FANNING knew the distance from Hampton

Road on Main Street to Wall Street in the Village of Southamp-

ton was only some six hundred (600) feet and knew that south-

bound traffic on aforesaid Main Street was at all times relevant

hereto “bumper to bumper”.

20. That upon all further Court appearances except for his

appearance on February 11, 1981 the defendant DONALD

FANNING wore the uniform of a police officer of the Town

of Southampton.

21. Plaintiff was required to attend numerous Court pro-

ceedings, a trial that began on February 4, 1981 was not con-

cluded until February 11, 1981 at which time claimant was

cleared and acquitted of such charge brought pursuant to Sec-

tion 240:25 Subd. 3 of the Penal Law of the State of New York.

22. That at all times prior to and during the criminal pro-

ceedings commenced by the defendants against plaintiff they

knew or should have known that plaintiff was innocent of any

wrongdoing.

23. The acts of the defendants above described were com-

mitted under color of law, and under color of their authority

as police officers of the Village of Southampton and the Town

of Southampton, deprived plaintiff of rights, remedies, privileges

and immunities guaranteed to each citizen of the United States,

in violation of 42 U.S.C. Sections 1983 and 1988 and deprived

plaintiff of rights guaranteed by the Fourth, Fifth, Sixth, Eighth

and Fourteenth amendments of the Constitution of the United

States.

24. Each of the defendants, individually and in concert with

the others, acted under pretense and color of law, and in their

respective official capacity, but said acts were beyond the scope

of their jurisdiction and without authorization of law and in

the abuse of their power, and each defendant acted wilfully,

knowingly and with the specific intent to deprive plaintiff of

his constitutional rights secured to plaintiff by the Fourth, Fifth,

Sixth, and Fourteenth Amendments to the Constitution of the

United States and by Title 42 U.S.C. Section 1983.

25. Plaintiff alleges that in doing the acts herein above com-

plained of, the defendants were conspirators engaged in a

scheme and conspiracy designed and intended to deny plain-

tiit of rights guaranteed to him under the Constitution and Laws

of the United States, particularly those hereinabove enumerated.

26. Plaintiff alleges that as a direct consequence and result

of the acts of defendants hereinabove complained of, plaintiff

suffered severe psychological and social injuries, great humilia-

tion in the community which caused serious disruption to plain-

tiffs social and family life; requiring plaintiff and his family

to expend sums of money as and for medical treatment; and

miscellaneous expenses in defending against the various charges

in the sum of $3,000.00

SECOND COUNT

27. The allegations in paragraphs 1 through 16 are incor-

porated by reference herein as if fully set forth.

28. On July 31, 1981 in duplicate pursuant to Section 50 (e)

of the General Municipal Law of the State of New York, writ-

ten notices of claim were duly served upon clerks of the defen-

dants VILLAGE OF SOUTHAMPTON and TOWN OF

SOUTHAMPTON in order to comply with the New York

Statute. The said defendants VILLAGE OF SOUTHAMPTON

and TOWN OF SOUTHAMPTON have examined plaintiff but

have failed and refused to pay plaintiff anything on his claim

for damages arising from the injuries to his wrists, emergency

room services at Brookhaven Memorial Hospital and further fail-

ed and refused to pay plaintiff anything for his claim for con-

scious pain and suffering, upset, undue stress, discomfort and

rise in blood pressure.

E-S

29. That said acts of the defendants described herein against

plaintiff were negligent under the laws of the State of New York

for which plaintiff is entitled to recover damages against the

defendants.

THIRD COUNT

30. The allegations in paragraph 1 through 26 are incor-

porated by reference herein as if fully set forth.

31. On May 6, 1981 in duplicated pursuant to Section 50 (e)

of the General Municipal Law of the State of New York, writ-

ten notice of claim were duly served upon the clerks of the

Village of Southampton and the Town of Southampton in order

to comply with the New York Statute. The said defendants

VILLAGE OF SOUTHAMPTON and TOWN OF

SOUTHAMPTON have examined plaintiff thereon but have

failed and refused to pay plaintiff anything for his claim with

respect to malicious prosecution.

32. The said acts of the defendants herein against the plain-

tiff constitute the tart of malicious prosecution under the laws

of the State of New York for which plaintiff ‘s entitled to recover

damages against the defendants.

WHERFFORE, plaintiff demands the following relief, jointly

and separately against all of the defendants:

1. Compensatory damages for plaintiff in the amount of

$2,500,000.00;

”, Punitive damages for plaintiff in the amount of

$2,500 ,000.00;

3. For reasonable attorney fees pursuant 42 USC 1988 together

with all court costs and disbursements;

4. Such other and further relief as this court may deem ap-

propriate and which is necessary and just under the

circumstances

James F. McManus, Esq.

Attorney for Plaintiff

1 Center Lane

Levittown, New York 11756

(516) 731-6400

Dated: September 23, 1981

Levittown, N.Y.

STATE OF NEW YORK

COUNTY OF NASSAU

JAMES F. McMANUS, being duly sworn, deposes and says:

That he is the Plaintiff herein; That he has read the foregoing

Complaint, knows the contents thereof; that the same is true

to his own knowledge, except as to the matters therein stated

to be alleged on information and belief, and that as to those

matters he believes it to be true. Sworn to before me this: 23rd

day of September, 1981.

JAMES F. McMANUS

Notary Public

Harold M. Davis

Notary Public, State of New York

No. 30-0875525

Qualified in Nassau County

Commission Expires March 30, 1983