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Gonzalez v. Doe

decided: March 15, 1973.


Lumbard, Smith and Mansfield, Circuit Judges.

Author: Mansfield

MANSFIELD, Circuit Judge:

Juan A. Gonzalez, administrator of the estate of his deceased brother Efrain, brought an action in the United States District Court for the District of Connecticut seeking damages against a then unknown Hartford police officer, other named supervisory police officials of the City of Hartford, the former City Manager, and the City itself, for the alleged homicide of Efrain and the deprivation of his civil rights in violation of 42 U.S.C. § 1983.*fn1 The police officer, originally designated John Doe, is now claimed to be Thomas Ganley.*fn2

The district court, acting upon a motion filed by the City alone, dismissed the claims against the City,*fn3 holding in reliance upon Monroe v. Pape, 365 U.S. 167, 187-192, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), that the City is not a "person" within the meaning of 42 U.S.C. § 1983 and that it therefore may not be sued thereunder. Plaintiff urged retention of pendent jurisdiction over the City, even if it were held not liable to suit under § 1983, because Conn.Gen. Stats. § 7-465 (1972)*fn4 might obligate it to pay on behalf of the defendant City officials any sums for which they might be held liable as a result of this proceeding. Applying the standards set forth in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966), however, the court also declined to exercise pendent jurisdiction over state law claims against the City.

On motion of the plaintiff under Rule 54(b), F.R.Civ.P., Judge Clarie determined that there was no just reason for delay and directed entry of a final judgment dismissing the claims against the City.*fn5 Accordingly, the appeal is properly before us. See Farrell v. Piedmont Aviation, Inc., 411 F.2d 812, 814-815 (2d Cir.), cert. denied, 396 U.S. 840, 90 S. Ct. 103, 24 L. Ed. 2d 91 (1969); 6 Moore, Federal Practice para. 54.45 [2-2] (2d ed. 1971). We affirm the dismissal of both the § 1983 and pendent claims against the City.

The case arises out of the shotgun slaying of Efrain Gonzalez in Hartford during a period of civil strife in that City in July, 1970. Defendant police officers were on duty at the time in an attempt to quell the disturbances. Plaintiff claims that his brother was shot without provocation by Officer Ganley who then left the scene with other police officers, none of whom attempted to render any assistance to the fatally wounded victim.

The complaint designates eight separate claims or causes of action. The first three seek compensatory and punitive damages under § 1983 against Officer Ganley for the slaying of Efrain Gonzalez, either wilfully and wantonly or through the negligent use of excessive force. The Fourth and Fifth Claims are jointly and severally directed against the other defendant municipal employees, seeking the same relief under § 1983 for negligent failure to supervise and prevent in various respects the use of deadly force by the police in the control of civil disturbances, which allegedly resulted in the shotgun death of Efrain Gonzalez. The Eighth Claim seeks the same relief from Ganley and the other individual defendants for an alleged conspiracy to conceal Ganley's identity and thereby prevent the enforcement of plaintiff's right to damages under § 1983.

Upon this appeal we are concerned only with the dismissal of the Sixth and Seventh Claims as against the defendant City of Hartford. The Sixth Claim was brought under Connecticut's wrongful death statute*fn6 and seeks "pecuniary damages" jointly and severally against the individual defendants. The Seventh Claim, which incorporates the § 1983 and wrongful death allegations contained in the first six claims, and further alleges that at all material times the defendant City officials were acting within the scope of their employment, is directed against the City of Hartford and asks compensatory damages and costs only.


In Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), the Supreme Court canvassed the legislative history of Section 1 of the Ku Klux Act of April 20, 1871, now codified as 42 U.S.C. § 1983, and noted that a proposal (suggested by Senator Sherman) to add a separate section to the Act providing for municipal liability in damages was rejected amidst vigorous debate over the question of Congress' constitutional power to impose civil liability on the municipal corporations of the states. The Court concluded that "the response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot believe that the word 'person' was used in this particular Act to include them." Id. at 191, 81 S. Ct. at 486. Absent any judicial or legislative modification, the effect of this landmark decision is to preclude suit against a municipality based on § 1983.

Appellant seeks to avoid the breadth of Monroe by urging that where a state has, through a law such as Conn.Gen.Stats. § 7-465,*fn7 voluntarily imposed on its municipalities an obligation to pay certain damages for which one or more of its employees has been held liable and has removed from them the defense of governmental immunity, no question of federal deference to local immunity is involved and a claim for damages under § 1983 should therefore be permitted against the municipality. The correctness of this view is said to be buttressed by the existence of 42 U.S.C. § 1988*fn8 which has been read to mean that "both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal [civil rights] statutes [described in § 1983]," Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 240, 90 S. Ct. 400, 406, 24 L. Ed. 2d 386 (1969) (action under 42 U.S.C. § 1982). Appellant further argues that Monroe v. Pape has been eroded by decisions granting equitable relief against municipal corporations under § 1983 and by the absence of any indication in that statute's legislative history of Congressional hostility toward the imposition of municipal liability where such liability is imposed by state law. In short, we are asked to draw the "inference that Congress intended municipalities to be liable under the Civil Rights Act to the extent that they are liable under state law." This we decline to do.

In construing the word "person" as used in § 1983, the Supreme Court did not base its decision upon policy considerations but upon the clearly defined intent of Congress as evidenced by the legislative history of that statute. 365 U.S. at 191, 81 S. Ct. 473, 5 L. Ed. 2d 492. The 42nd Congress, voicing sharp hostility to subjecting municipalities to liability for damages based upon violation of civil rights, made it clear that the term "person" was not to include a municipality. Whatever may be our views as to the wisdom of subjecting municipalities to liability when the parent state has adopted a legislative amendment, we cannot now expand that meaning by attributing to Congress policy considerations which it never entertained. To say that the 42nd Congress, if it had pondered further upon the matter, might have concluded that § 1983 should reach a situation where a state itself imposes liability upon its municipalities for acts of their employees is to rewrite history. There is no evidence that it ever contemplated such a possibility. But there is strong evidence to the contrary, which led the Supreme Court in Monroe to conclude that since a municipality is not a "person" it may not be held liable in damages for deprivation of rights protected by § 1983. The word "person" as used in the statute has the same meaning now as it had then. As the Seventh Circuit recognized in dealing with the same issue in Ries v. Lynskey, 452 F.2d 172, 175 (7th Cir. 1971), the question is

"Not whether the Congress in 1871 would have included a municipality within the definition of 'person' if at the time municipalities generally had not had immunity under the common law of states but rather the test is what Congress meant to do at that time irrespective of the reasons leading to that action. What Congress meant to do, it seems clear from the exposition in Monroe, was to legislate that 'person' did not include a municipality."

We are aware that in Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358, 368-369 (1971), reversed on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S. Ct. 602, 34 L. Ed. 2d 613 (Jan. 10, 1973), the District of Columbia Court of Appeals adopted the view, here advocated by appellant, that municipalities may be held liable in damages under § 1983 to the extent that they are liable under state law. But we find ourselves in accord with the contrary views expressed in Yumich v. Cotter, 452 F.2d 59 (7th Cir. ...

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