The opinion of the court was delivered by: MUNSON
MEMORANDUM-DECISION AND ORDER
This is a civil rights action brought by plaintiff residents of the Oneida Indian Reservation seeking damages for harm allegedly caused when defendant City, County, and State governments, agencies, and officials, at the behest of defendant Oneida Warrior Society, withdrew police and fire protection from the Oneida Indian Reservation. Presently before the Court are motions by defendants to dismiss plaintiffs' amended complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for its failure to state a claim upon which relief can be granted.
While the facts alleged in the amended complaint are sketchy,
it appears that plaintiffs are members of the Oneida Indian Reservation and residents of Onondaga County, New York. Plaintiffs assert that sometime in the month of October, 1975, members of the defendant Oneida Warrior Society met with the City of Oneida, and as a result of that meeting, the Oneida Police and Fire Departments withdrew their services from the Oneida Reservation. Soon thereafter, the New York State Police and Madison County Sheriff's Department also withdrew their police services.
Plaintiffs' claims have one common thread that is, whether plaintiffs' civil rights under 25 U.S.C. § 1302, 42 U.S.C. §§ 1983, 1985, and 1986
were violated when defendants withdrew police and fire protection from the Oneida Indian Reservation. Defendants move to dismiss these claims on the grounds that the federal government not the defendant City, County, and State governments is responsible for both the operation of the Oneida Indian Reservation and the protection of plaintiffs' civil rights. Alternatively, defendants cite the case of Chase v. McMasters, 405 F. Supp. 1297 (N.Dak., 1975), for the tenant that the various defendants have every right to refuse to provide normal government services, such as police and fire protection, to those who do not pay for them. In denying these services to plaintiffs, defendants say they did so within their discretionary authority, which they claim was exercised in a proper manner. The government and government agency defendants also contend that they are not "person(s)" within the meaning of Section 1983. Finally, defendants maintain that the Section 1986 claim is time barred because it was brought more than one year after the alleged cause of action arose.
II. Plaintiffs' Claim Under Section 1983
A. The Amenability of Indians to Sue and Be Sued Under Section 1983
It is well established in the law that "Indian Tribes are "distinct, independent political communities, retaining their original natural rights' in matters of local self-government." Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 98 S. Ct. 1670, 1675, 56 L. Ed. 2d 106 (1978). Because their status as separate sovereigns predates the Constitution, the Indians have been historically treated as unrestrained by Constitutional provisions designed to limit federal or state authority; id. at 56, 98 S. Ct. at 1676. In Talton v. Mayes, 163 U.S. 376, 16 S. Ct. 986, 41 L. Ed. 196 (1896), for example, the Supreme Court held that the Fifth Amendment did not operate upon the powers of local self-government enjoyed by the Indian Tribes; id. at 384, 16 S. Ct. at 989. Lower federal courts have extended the Supreme Court's holding in Talton to other provisions in the Bill of Rights, and to the Fourteenth Amendment. See e.g., Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959) (freedom of religion under the First and Fourteenth Amendments).
Although Talton and its progeny have exempted Indian Tribes from Constitutional provisions aimed at limiting the powers of federal and state governments, it does not in any way limit the rights of individual Indians to sue the government under the United States Constitutional Amendments or federal civil rights statutes such as Section 1983. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 n.7, 98 S. Ct. 1670, 1676, 56 L. Ed. 2d 106 (1978); F. Cohn, Handbook of Federal Indian Law, 179 (1945). Likewise, the Talton line of authority would not limit the amenability of individual Indians to be sued.
With this background in mind, it is necessary to again examine the language of Section 1983:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
Thus, the Indian defendant members of the Oneida Warrior Society are included by Section 1983's coverage of "(e)very person," and the Indian plaintiffs are protected by Section 1983 because they are each a "person within the jurisdiction" of the United States.
The Court now turns to the question of whether plaintiffs have stated a cognizable claim under Section 1983.
B. The Merits of Plaintiffs' Claim Under Section 1983
As stated by the Supreme Court in Baker v. McCollan, 443 U.S. 137, 99 S. Ct. 2689, 2692, 61 L. Ed. 2d 433 (1979), "The first inquiry in any § 1983 suit . . . is whether the plaintiff has been deprived of a right "secured by the constitution and laws.' " The Court went on to hold in Baker that Section 1983 imposes liability for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law. "Remedy for this latter type of injury must be sought in state court under traditional tort-law principles." Id. 99 S. Ct. at 2695-96. However, since Section 1983 is a remedy for Constitutional torts, an examination of plaintiffs' claim under New York tort law is a useful point of departure for determining whether it is cognizable under Section 1983.
Traditionally under New York tort law a municipality cannot be held liable for a mere failure to furnish adequate police or fire protection to persons for whom it has not assumed a special duty; Florence v. Goldberg, 44 N.Y.2d 189, 195, 404 N.Y.S.2d 583, 586, 375 N.E.2d 763, 767 (1978). For a municipality to be held accountable for a special duty, it must have a special relationship with the plaintiff that would create a duty which, if negligently performed, would render that municipality liable. This special duty would exist, for example, where the municipality assumes a duty towards a particular person or class of persons, though it was not required to do so. Thus, to quote Chief Judge Cardozo:
(I)f conduct has gone forward to such a stage that in action would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward.
Moch Co. v. Rensselaer Water Co., 247 N.Y. 160, 167, 159 N.E. 896, 898 (1978).
In the present case, plaintiffs assert that defendants, after voluntarily providing police and fire protection and creating a special duty, breached that duty by withdrawing police and fire protection from the Oneida Indian Reservation. Unfortunately, plaintiffs' complaint does not specifically allege how defendants' conduct, tortious though it may be, also implicated plaintiffs' Constitutional rights, and the proscriptions of Section 1983. Nevertheless, pursuant to Rule 8(f) of the F.R.C.P., the Court is obliged to construe pleadings "as to do substantial justice." Upon viewing plaintiffs' complaint in this light, it is apparently plaintiffs' contention that they were denied police and fire protection either as a result of being a member of the Oneida Indian Tribe, relatives of the members, or residents of the Oneida Indian Reservation. As such, the complaint infers a violation of plaintiffs' right to the equal protection of the laws, as guaranteed by the Constitution and Section 1983.
In sum, plaintiffs have sufficiently stated a claim under Section 1983 to get them over the hurdle of a Rule 12(b)(6) motion to dismiss. The next issue to be examined is whether defendants are properly named parties under Section 1983.
C. Defendants as Parties Under Section 1983
In their Section 1983 claim, plaintiffs have named as defendants: the State of New York; the New York State Police Department; the Superintendent of that Police Department, William G. Connelie, in his official and individual capacities; the County of Madison; the Madison County Sheriff's Department; the Sheriff of Madison County, Robert P. Cordary, in his official and individual capacity; the City of Oneida; the Mayor of Oneida, Herbert Brewer, in his official and individual capacities; the City of Oneida Police and Fire Departments; the Chiefs of those Departments, Ellsworth Yemen and John F. Myers; and a private organization, the Oneida Warrior Society, and its members.
Defendants argue that none of them are "person(s)" within the meaning of Section 1983, with the exception of the officials named in their individual capacities, and that plaintiffs' complaint must be dismissed. The Court will first address the issue of the state as a "person" within the meaning of Section 1983.
Section 1983, while scarce on settled principles, has stimulated what now amounts to a wealth of court decisions, both in number and diversity. The volume and diversity of cases reflect the extent and multifaceted nature of the government's involvement in the lives of its citizenry, how often that involvement tends to result in unconstitutional state action, and the necessity of a remedy for such conduct.
It is no coincidence that it was a similar pattern of unconstitutional conduct that led to the post-Civil War movement to eradicate the oppressive tendencies of government especially state government. This reformist movement produced federal civil rights legislation in the form of the Civil Rights Act of 1866
the latter of which is now codified as 42 U.S.C. § 1983. More significantly, the Fourteenth Amendment of the Constitution was ratified by the States during this period, to further elevate the principles of the Act of 1866 as a part of the fundamental law of the land.
In fact, Section 1983 was enacted pursuant to Section 5 of the Fourteenth Amendment, to fully enforce the constitutional form of the Act of 1866, or Section 1 of the Amendment.
It is plain, moreover, from the face of Section 1 that its prohibitions are directed at the States themselves. This being the case, it is reasonable to assume that since Section 1983 was enacted to enforce the Fourteenth Amendment, it was designed to remedy the unconstitutional indiscretions of the State.
A recent Supreme Court decision, however, has concluded otherwise. In Quern v. Jordan, 440 U.S. 332, 99 S. Ct. 1139, 59 L. Ed. 2d 358 (1979), the Court held that Congress, in enacting Section 1983, had not intended that it be used as a remedial device against unconstitutional acts by the States themselves. Id. 99 S. Ct. at 1147. Unless Congress should decide to change the effect of the holding of Quern, victims of the unconstitutional conduct of the States will remain foreclosed from any monetary or retrospective injunctive relief. But what is also important about the Court's ruling is that, because Section 1983 works in conjunction with the Fourteenth Amendment, the Court's narrow reading of Section 1983 is ultimately a limitation on the Fourteenth Amendment itself. In this sense, the Quern decision partially deprives litigants of the protective wisdom of the principles of the Fourteenth Amendment, which expresses a fundamental distrust of ...