The Patrolmen's Benevolent Association of the City of New York and J. Patrick Burns appeal from the June 9, 1987 judgment of the United States District Court for the Southern District of New York (Owen, J.) entered after a jury trial. The judgment held each defendant-appellant liable for torts committed against plaintiff-appellee Robert Hughes and for punitive damages. Judgment and damages reversed in part, and affirmed in part.
Lumbard and Cardamone, Circuit Judges and Leisure, District Judge.*fn*
CARDAMONE, Circuit Judge:
The Patrolmen's Benevolent Association of the City of New York (PBA) and J. Patrick Burns appeal from a June 9, 1987 judgment in favor of appellee Robert Hughes in the United States District Court for the Southern District of New York (Owen, J.) following a jury trial. This appeal is from a jury verdict awarding Hughes substantial damages for intentional infliction of emotional distress and prima facie tort as well as awarding punitive damages. The jury found that appellants embarked on a deliberate and malicious vendetta against the plaintiff aimed at securing revenge for actions which the appellants should have known he did not do. The jury verdict here furthers Bacon's dictate that because revenge is a form of "wild justice," the "more ought law to weed it out." F. Bacon, Of Revenge, in Essays or Counsels--Civil and Moral, reprinted in 3 Harvard Classics 15 (C.W. Eliot ed. 1909).
Plaintiff Robert Hughes, a New York City Police Sergeant since 1964, was assigned on September 10, 1979 to the Absence Control Unit of the Police Department's Health Services Division. His duties involved preventing abuse by police officers of the Police Department's unlimited sick leave policy. Deputy Chief Ryan, the commanding officer of the Health Services Division and Sgt. Hughes' supervisor in 1979-80, credited Hughes with reducing absenteeism and saving the Department several million dollars in 1980 as compared to 1979. Based on this performance, he recommended Hughes for a promotion to Sergeant Special Assignment with a concommitant raise.
The incident that triggered this litigation involved Police Officer Salvatore Troia, who was injured on December 28, 1979 while on duty at the 19th Precinct. According to his wife, Troia, despite suffering from physical pain and serious depression, appeared as ordered on October 9, 1980 for limited duty. The next day he committed suicide.
Appellant Burns--a police officer for over 30 years--was on "full excusal" from duty at the time of Troia's suicide and was serving as a First Vice-President of the PBA, the labor union representing police officers, and as a Trustee of the New York City Pension Board, which determined disability pensions for members of the police department. In 1979 Officer Burns was assigned to the 19th Precinct where he had served with his friend, Officer Troia. Burns testified at trial that two members of the Health Services Division, Sergeants Cruse and Powers, had visited Officer Troia at his home during his period of sick leave. But, according to Hughes, Troia had never been classified as a sick leave abuser and had never come under his supervision or investigation.
On October 10, 1980--the same date of Officer Troia's suicide--the PBA initiated its own investigation into what role the Health Services Division might have played in his death. The Police Department's official report concerning Troia's death concluded that Sergeant Hughes had no involvement with Troia during the period of sick leave.
The core of Hughes' claim against Burns and the PBA is that they blamed him for Troia's death and, as a result, embarked on a deliberate and malicious vendetta against him aimed at securing revenge. Hughes introduced evidence that the PBA hired two investigators to look into his involvement in the suicide and that the PBA told the investigators that it wanted him transferred out of the Health Services Division "any way you can"--even if it meant framing him. As a result of appellants' campaign of harassment and the false dissemination to Hughes' fellow officers that Sergeant Hughes was responsible for Troia's suicide, many referred to Hughes as "Dr. Death." Hughes claimed that appellants' tactics resulted in harassment of him and his wife, caused him to be involuntarily transferred, discussed below, and denied him the promotion and raise recommended by Ryan. A substantial amount of highly contested testimony was admitted concerning the nature of and activities constituting this campaign of harassment.
Hughes claimed that Burns, the PBA, and the Police Department conspired to transfer him out of the Health Services Division. After Troia's death, appellee was transferred involuntarily from Health Services to applicant processing, then to applicant investigations, and finally to street patrol in a Queens precinct. While on patrol Hughes sustained two injuries that eventually led to his retirement on a disability pension on December 10, 1986.
Hughes instituted this action in 1982 against appellants and the New York City Police Department alleging federal civil rights claims pursuant to 42 U.S.C. § 1983 (1982) and state common law tort claims. An amended complaint alleged the following three causes of action against Burns, PBA, and the New York City Police Department: prima facie tort, intentional infliction of emotional distress, and deprivation of civil rights. Jurisdiction was based on 28 U.S.C. § 1331.
Appellants first objected to the district court entertaining jurisdiction when they moved under Fed. R. Civ. P. 12(b)(6) to dismiss appellee's complaint. They argued that, as private parties, they were not subject to liability under § 1983 and hence, absent federal question jurisdiction under § 1331, the district court also lacked pendent jurisdiction over the state law claims. The district court denied the motion to dismiss on the ground that a private defendant is subject to § 1983 liability when that party willfully participates in joint activity with a state officer. See United States v. Price, 383 U.S. 787, 794, 16 L. Ed. 2d 267, 86 S. Ct. 1152 (1966). The court ruled that the complaint "clearly pleaded factual ...