Opposition — McManus v. Village of Southhampton

NO. 83-1658

Octroser Term, 1983 ——-— ce |

JAMES F. McMANTUS,

Petitioner,

—against—

THE VILLAGE OF SOUTHAMPTON, NEW YORK,

and THE TOWN OF SOUTHAMPTON, NEW YORK,

Respondents,

DONALD FANNING and JAMES CHISM,

Defendants.

_ . a - =

BRIEF IN OPPOSITION TO WRIT OF CERTIORARI

E. Ricnarp RrwMezs, JR.

Counsel for Defendants, Village of

Southampton, James Chism and

Donald Fanning

Montrort, Hearty, McGume & Sauiey

163 Mineola Boulevard

Mineola, New York 11501

(516) 747-4082

TABLE OF CONTENTS

PAGE

EE I ecieerteterrtecteninninns ii

FD ye IN 1

Pornt I—No basis for jurisdiction is alleged as

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Pornt II—The District Court, in the exercise of its

discretion, properly declined to retain State law

claims under the Doctrine of Pendent Jurisdiction 4

i aA et ae 5

ii TABLE OF AUTHORITIES

Table of Authorities

Cases Cited

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sattista v. Rodriguez, 702 F. 2d 393 oon. eeceeceeee

Monell v. New York City Department of Social Ser-

CE, ee Sha ND bdabinbencee eh Coa

Moor v. County of Alameda, 411 U.S. 693 20.

Nelson v. Meyer, 520 F. 2d 1276, cert. den, 423 U.S.

I: se cisssietdiniancatetseslacsanaiuhsatishdeuinaabesndauacbacseaacalaieee en

Owens v. Haas, 601 F. 2d 1242, cert. den, 444 U.S. 980

United Mine Workers v. Gibbs, 383 U.S, 715 ...0..........

United States Constitution Cited

Fourth Amendment ............... 5 asonladanbasmaanenaiiaiea aii:

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Statutes Cited

New York State Penal Law:

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28 USC:

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PAGE

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TABLE OF AUTHORITIES iii

PAGE

42 USC:

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Rule Cited

Rules Governing Magistrate’s Proceedings in the

Eastern District of New York:

Rule 14

NO, 83-1658

IN THE

Supreme Court of the United States

Ocroper Term, 1983

in

—

JAMES F,. McMANUS,

Petitioner,

—against—

THE VILLAGE OF SOUTHAMPTON, NEW YORK,

and THE TOWN OF SOUTHAMPTON, NEW YORK,

Respondents,

DONALD FANNING and JAMES CHISM,

Defendants.

BRIEF IN OPPOSITION TO WRIT OF CERTIORARI

Statement of Facts

The Petitioner commenced this proceeding in the Dis-

trict Court for the Eastern District of New York contend-

ing that jurisdiction existed based upon 42 USC Sections

1983 and 1988, Fourth, Fifth, Sixth and Fourteenth Amend-

ments to the Constitution, and 28 USC Sections 1331, 1332

and 1343. Diversity jurisdiction being lacking, the serious

basis for the retention of the action in the Federal Court

system was premised upon 42 USC Section 1983, The Dis-

trict Court determined that jurisdiction against the Town

and the Village could not, under the allegations of the

complaint, be sustained upon that statute and dismissed

the action as to the Town and the Village, That deter-

mination was sustained by the Second Circuit.

Factually, the Petitioner alleges in his complaint that

on July 2, 1980 Fanning was acting in a “triple capacity”.

First, it is alleged, that he was acting as a private citi-

zen, thus indicating that he had no relationship in this

capacity with either the Village or the Town. Secondly,

it is alleged that he was acting as an employee of the

Village of Southampton, to wit, as a truck driver for the

Department of Public Works, Thirdly, it is alleged that

Fanning, at the time, was acting as a police officer for

the Town of Southampton,

Acting in one of the above capacities, Fanning sum-

moned the Village Police for assistance in the arrest of

the Petitioner, At this point, Fanning arrested the Peti-

tioner charging him with harassment, a violation of See-

tion 240:25 of the New York State Penal Law and, also,

with a traffic violation.

The Petitioner was handeuffed, the handeuffs allegedly

causing pain, abrasions and contusions. He was taken to

the Police Station and detained for a number of hours

and released, These facts gave rise to the first cause of

action alleged in the complaint, to wit, unconstitutional

arrest or false imprisonment.

The complaint, although inartful, alleged in the second

count damages because of negligence in the way the hand-

cuffs were applied,

The third count sought damages for malicious prose-

cution,

Insofar as the Town and Village are concerned, the

complaint is devoid of any allegation as to their fault

other than the claim that defendants Chism and Fanning

were employees of the municipal corporate defendants.

Further, upon the motion to dismiss by the Village, Peti-

tioner suggested no other theory, although otherwise ex-

panding upon his complaint, as duly noted in the order

of Judge Pratt dated February 4, 1982 (B1-B3).

The District Court dismissed the action as to the Town

and the Village, Thereafter by stipulation pursuant to

28 USC Section 636 the parties stipulated to try the case

before Magistrate Jordan. It was so tried with there

being a jury verdict in favor of the defendant Chism and

against the defendant Fanning and in favor of the Peti-

tioner for the total sum of $500.00. An appeal was filed

by the Petitioner, The appeal with respect to the de-

fendants Fanning and Chism was, according to stipula-

tion, to be taken to the District Court. The Petitioner

has not perfected this appeal within the time limits pro-

vided by Rule 14 of the Rules Governing Magistrate’s Pro-

ceedings in the Eastern District of New York and, pre-

sumptively, has abandoned that appeal.

The appeal from the orders dismissing the action as to

the Town and Village was perfected to the Second Circuit,

which Court affirmed the dismissal.

At this point, the Petitioner seeks to have this Court re-

view the propriety of the dismissal of the action as against

the Town and the Village.

POINT I

No basis for jurisdiction is alleged as against the

Village.

The District Court afforded the Petitioner the oppor-

tunity to explain the nature of his causes of action in-

corporating that explanation as a part of his order and

decision dated February 4, 1982 (B-2). At the same time

the Court noted that the plaintiff did not allege any theory

of liability against the Village other than on the basis

of respondeat superior. Such allegations are not suffi-

cient to impose liability or jurisdiction under 42 USC Sec-

tion 1983. Monell v. New York City Depariment of Social

Services, 436 U.S. 658 and Owens v. Haas, 601 F. 2d 1242,

cert. den. 444 U.S. 980; and Battista v. Rodriguez, 702 F.

2d 393. The Courts below were, clearly, correct when they

held that there was no jurisdiction under the Civil Rights

allegaticns.

POINT II

The District Court, in the exercise of its discretion,

properly declined to retain State law claims under the

Doctrine of Pendent Jurisdiction.

Petitioner complained in his complaint regarding the

actions of Fanning and Chism. With respect to Fanning,

the complaint all: ged that he was acting either in his

individual capacity, in his capacity as a truck driver of

the Village of Southampton or in his capacity as a part

time police officer of the Town of Southampton. The jury

awarded the Petitioner the sum of $500.00 for the alleged

wrongful acts. Since that portion of the judgment stands,

the potential liability of the Village, if Fanning’s acts were

done in the scope of his employment to the Village, would

be the sum of $500.00. With respect to Chism, who re-

ceived a verdict, there is no liability and, hence, nothing

that can effect the Village.

The District Court, in the exercise of discretion, de-

clined to exercise pendent jurisdiction over the Village and

such determination was not inappropriate. United Mine

Workers vy. Gibbs, 383 U.S. 715 and Moor v. County of

Alameda, 411 U.S. 693. Particularly, under the facts of

this case, it was proper for the District Court, in the ex-

ercise of its discretion, to decline to exercise any pendent

jurisdiction, presuming that such existed. Nelson v. Meyer,

520 F. 2d 1276, cert. den. 423 U.S. 1034. Clearly there is

no independent Federal jurisdiction against the municipal

defendants since diversity does not exist. Since the Civil

Rights allegations are insufficient as a matter of law, it

would not seem that pendent jurisdiction is available.

Aldmger v. Howard, 427 U.S. 1.

CONCLUSION

This Court should not grant the writ.

Respectfully submitted,

E. Ricnarp Rimes, Jr.

Counsel for Defendants, Village of

Southampton, James Chism and

Donald Fanning

Montrort, Hearty, McGuire & Sauey

163 Mineola Boulevard

Mineola, New York 11501

(516) 747-4082

Dated: April 27, 1984

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