Peterson v. Stanczak | Cases | Westlaw

To state a viable cause of action under the civil rights act, 42 U.S.C. § 1983, plaintiff must assert that the defendants acted under color of law and that they deprived plaintiff of constitutionally protected rights, privileges, or immunities. Plaintiff has explicitly alleged the acts done were done under color of law. He has also alleged the occurrence of certain overt acts of defendants which he contends were in violation of his rights. Plaintiff alleges that he was seized in his home and arrested without a warrant, that his home and automobile were unlawfully searched, that certain property was unlawfully taken from his home, that he was improperly detained at two different police stations, that he was prohibited from consulting with an attorney or visiting with his family, that he was subjected to improper and indecent treatment designed to coerce him into confessing his guilt to a charge of murder by abortion, which crime was abolished a few years prior to his arrest and which in any event he did not commit, that an autopsy on the alleged murder victim was improperly performed, that evidence in plaintiff's favor was suppressed, and that he was coerced by various threats and promises into pleading guilty to a nonexistent crime. Plaintiff alleges that as a result of his plea he was sentenced to nine to ten years imprisonment, but was released on writ of habeas corpus after three years in jail. We recognize that since Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the scope of wrongs for which recovery is permitted under the civil rights acts has been broadened. Courts had previously recognized that law officers who extracted confessions by violence were subject to liability, Lewis v. Brautigam, 227 F.2d 124, 55 A.L.R.2d 505 (5th Cir. 1955); Geach v. Moynahan, 207 F.2d 714 (7th Cir. 1953). Recently, recovery has been permitted for unlawful arrest and imprisonment, unreasonable search and seizure, and denial of equal protection of the laws. Lucero v. Donovan, 354 F.2d 16 (9th Cir. 1965); Basista v. Weir, 340 F.2d 74 (3d Cir. 1965); Lee v. Hodges, 321 F.2d 480 (4th Cir. 1963); Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964). Consequently, the facts alleged by plaintiff are sufficient to constitute a cause of action at least under 42 U.S.C. § 1983.

Defendants Nystrom and Houte have urged that the plaintiff's allegations are insufficient to support a cause of action under 42 U.S.C. § 1985, the civil rights conspiracy statute. Defendants contend that plaintiff has merely made an unsupported allegation that defendants conspired to deprive him of his rights and that necessary highly specific factual averments are missing. However, in defendants lead case, Hoffman v. Harden, 268 F.2d 280 (9th Cir. 1959), the court held that a plaintiff pleading a conspiracy violation under § 1985 need not plead his evidence as to defendants meetings, but may allege ‘defendants conspired’ and then enumerate overt acts in furtherance of the alleged conspiracy. Id. at 294–295. This is because while in a criminal conspiracy, the conspiracy itself is the gist of the crime, in a civil conspiracy, the damages flows from the overt acts made in furtherance of the conspiracy. Id. Defendants have also and properly contended that plaintiff must allege a purposeful intent to discriminate to assert an action under § 1985. Norton v. McShane, 5 Cir., 332 F.2d 855 (1964). Such an allegation is made in paragraph 11 of the Complaint. Even if the required allegation were omitted from the complaint, the complaint as a whole reasonably implies an intentional discriminatory enforcement *429 of the laws by the defendants. Huey v. Barloga, 277 F.Supp. 864, 871 (N.D.Ill.1967).

To sum up, we believe that plaintiff has properly alleged a cause of action under 42 U.S.C.A § 1983 for deprivation of his constitutional rights. Even if we found that the conspiracy allegations were insufficient, we would not dismiss this complaint because there is validity in the § 1983 claim. At the least, the allegations of conspiracy support a cause under § 1983 alleging defendants acted as joint tortfeasors in damaging plaintiff's civil rights. Hoffman v. Halden, 268 F.2d 280, 292–293 (9th Cir. 1959); Huey v. Barloga, 277 F.Supp. 864, 873 (N.D.Ill.1967). Of course, we have found that plaintiff has adequately stated a cause of action under the conspiracy section as well.

Defendants Krapf and Biddle are alleged to have done various acts under color of law as police officers of the City of Zion, Illinois. Citing no authority for support, they contend that police officers acting in their official capacity are not amenable to suit under the civil rights acts. However, policemen acting under color of law are not immune to civil rights litigation. See, e. g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473 (1961); Basista v. Weir, 340 F.2d 74 (3d Cir. 1965); Hardwick v. Hurley, 289 F.2d 529 (7th Cir. 1961); Wakat v. Harlib, 253 F.2d 59 (7th Cir. 1958); Hughes v. Smith, 264 F.Supp. 767, 769 (D.N.J.1967), aff'd 389 F.2d 42 (3d Cir. 1968); McIver v. Russell, 264 F.Supp. 22, 32 (D.Md.1967); Bowens v. Knazze, 237 F.Supp. 826 (N.D.Ill.1965); Yates v. Village of Hoffman Estates, Illinois, 209 F.Supp. 757, 759 (N.D.Ill.1962).

Defendants Larson and Babcox have not asserted any special grounds for immunity other than status and that is not conclusive. Having reached the question as to whether officers and a supervising psychiatrist of a state mental institution were subject to tort liability under 42 U.S.C. § 1983, the Second Circuit in Jobson v. Henne, 355 F.2d 129, 133–134 (2d Cir. 1966), said:

Of course, even judicial immunity is not absolute. In Spires v. Bottorff, 317 F.2d 273 (7th Cir. 1963), the Seventh Circuit held that an inmate of the Indiana State Prison who alleged that a state judge wrongfully induced the inmate's warden to prevent the inmate from corresponding with the clerk of a state court with respect to his previous conviction there stated a valid cause of action against the judge under the civil rights acts. Id. at 275.

The specific question of immunity for prosecuting attorneys was discussed in Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965), where it was argued that the County Attorney and Deputy County Attorney for Maricopa County, Arizona, were immune from liability for acts charged in the complaint because they were committed by the defendants ‘in the performance of their official duties.’ Id. at 534. The Ninth Circuit Court of Appeals reversed District Court's dismissal of a suit based upon 42 U.S.C. §§ 1983 and 1988 saying, Id. at 536–537:

In sum, there is no doctrine of absolute immunity for prosecuting attorneys and the factual backgrounds of recent Seventh Circuit cases including those on which defendants rely are readily distinguishable from that which is before us in that they appear to have involved quasi-judicial, not investigative, behavior. At this stage of the proceedings, without having heard defendants answers, it would be improper to dismiss this complaint simply because of defendants' status. Rather,

Defendants' final meaningful challenge to this action is a procedural one. Defendants Nystrom and Houte contend that plaintiff fails to separately state each cause of action in violation of Rule 10(b), Fed.R.Civ.P., and improperly pleads separate claims alternatively in a single paragraph. Initially, we note that even if true, a pleading deficiency of this kind will not subject the complaint to dismissal, but only compel amendment under Rule 15, Fed.R.Civ.P., 1A Barron & Holtzoff, Federal Practice and Procedure § 324, at 248 (1960).