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HABER v. COUNTY OF NASSAU

March 31, 1976

MAX HABER, individually and as Executor of the Goods, Chattels and Credits that were of GEORGE HABER, Deceased, Plaintiff,
v.
THE COUNTY OF NASSAU and ROBERT SEHLMEYER, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, D.J.

 By Order to Show Cause with an affidavit and a copy of the complaint annexed, defendant, County of Nassau, moved for an order pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure dismissing the complaint against it on the ground that the complaint fails to state a claim upon which relief can be granted and on the ground that this Court lacks subject matter jurisdiction of plaintiff's claims.

 The bases for the said defendant's motion are that (i) Nassau County is not a person under 42 U.S.C. §§ 1983 and 1985 (Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961); Moor v. County of Alameda, 411 U.S. 693, 36 L. Ed. 2d 596, 93 S. Ct. 1785), (ii) jurisdiction does not lie against the County under 28 U.S.C. §§ 1331 and 1343(3) and/or the Fourteenth Amendment to the Constitution under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971), and (iii) this Court should not exercise pendent jurisdiction given the facts and circumstances of this case (Moor v. County of Alameda, supra).

 Defendant Nassau County's first point is well taken and it is clear under the cited authorities that plaintiff's claims, at least insofar as they may be deemed federal claims, may not be sustained against the defendant County under 42 U.S.C. §§ 1983 and 1985. Moreover, in view of Monell v. Department of Social Services of the City of New York, 532 F.2d 259 (2d Cir. 1976), they may not be sustained against the defendant Sehlmeyer in his official capacity under such statutes.

 In view of the decision of this Court with respect to said defendant's third point, it is not necessary at this juncture to decide the "difficult and troublesome constitutional questions" raised by the Bivens decision when it is considered in a Fourteenth Amendment context. See Fine v. The City of New York, 529 F.2d 70, 76 (2d Cir. 1975); Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975); City of Kenosha v. Bruno, 412 U.S. 507, 516, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973) (Brennan & Marshall, J.J., concurring). See also Monell v. Department of Social Services of the City of New York, supra, and cf. Turano v. Board of Education, 411 F. Supp. 205, (75 Civ. 606) (E.D.N.Y. 1976) (Supplemental Opinion).

 With respect to defendant's third point, plaintiff's complaint alleges five claims. The first claim, plaintiff now says, is brought against both defendants for violation of his civil rights under the First, Fourth, Sixth, Ninth, Tenth and Fourteenth Amendments to the Constitution and Title 28 U.S.C. §§ 1331(a) and 1343(3), and is against the individual defendant Sehlmeyer for violation of such rights under 42 U.S.C. §§ 1983 and 1985. In essence, it alleges that the individual defendant was a Police Sergeant of the County of Nassau; that he was acting in a representative capacity under color of law and within the scope of his employment; that he was authorized and required to carry a police service revolver; and that he, without justification and with malice, reckless and wanton and willful abandon, did shoot and kill the plaintiff's intestate. The complaint seeks damages in the sum of One Million ($1,000,000.00) Dollars and punitive damages in the sum of an additional One Million ($1,000,000.00) Dollars.

 In his second claim, plaintiff repeats the allegations contained in the first claim and then seeks One Million ($1,000,000.00) Dollars for the wrongful death of his son and an additional One Million ($1,000,000.00) Dollars for punitive damages from both defendants.

 Plaintiff's third claim is against the County of Nassau alone and charges that it "could have or should have ascertained that the defendant, Robert Sehlmeyer, had vicious tendencies, was emotionally unstable and was not a proper person to entrust with a service revolver" and seeks again the same damages and punitive damages.

 In his fourth claim against both defendants, plaintiff asserts that the decedent survived the shooting for some time before dying as a result thereof, and during the interim period suffered great physical pain and anguish and underwent medical care and attention at considerable expense, and plaintiff seeks damages of Fifty Thousand ($50,000.00) Dollars therefor.

 Plaintiff's fifth claim (again repeating the allegations in the first claim) lies against the individual defendant Sehlmeyer alone and charges him, while acting under color of law and within the scope of his employment, with using excessive force and malice when he shot to kill and killed without provocation or just cause the decedent and again seeks the same amounts in damages and punitive damages as in the first three claims.

 It seems clear that it may reasonably be maintained that the first and fifth of the five claims set forth claims against the defendant Sehlmeyer which are within this Court's jurisdiction. Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). It may also be maintained that jurisdiction with respect to the remaining three claims may be had under the doctrine of pendent jurisdiction.

 As indicated, regardless of what may be said about this Court's jurisdiction under the Fourteenth Amendment and 28 U.S.C. § 1331 over the plaintiff's first claim against the defendant County of Nassau, there is no question but that this Court would have jurisdiction over any such claim if it was brought against defendant Robert Sehlmeyer in his individual capacity under 42 U.S.C. §§ 1983 and 1985. Paul v. Davis, supra, does not appear to hold to the contrary. Paul v. Davis seems only to say that "the Fourteenth Amendment [is not] a font of tort law to be superimposed upon whatever systems may already be administered by the States" or that not every tort actionable under State laws is also actionable under such Amendment. Deprivation of life under color of law without due process would still appear to be actionable in the Federal Courts, Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945).

 We note also that the recent opinion of the Court of Appeals in Monell v. Department of Social Services of the City of New York, 532 F.2d 259 (2d Cir. 1976), contains nothing casting doubt on the above conclusions. That decision held that an action could not be brought for damages under § 1983* against municipal officials in their official capacities. Of course, to hold as well that suits could not be brought under § 1983 against officials in their individual ...


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