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Perez v. Ortiz

decided: June 27, 1988.

GLORIA PEREZ, ELIZABETH AGOSTO, PLAINTIFFS-APPELLANTS
v.
JESUS ORTIZ, PHILOMENA LULA AND THEODORE MEEKINS, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES AS OFFICERS IN THE POLICE DEPARTMENT OF BRIDGEPORT, CONNECTICUT, DEFENDANTS-APPELLEES. SONIA ZAPP, PLAINTIFF-APPELLANT, V. LORI ANN CASABARRA, STEPHANIE JOHNSON, IN THEIR OFFICIAL CAPACITIES AS OFFICERS IN THE POLICE DEPARTMENT OF NEW HAVEN, CONNECTICUT, DEFENDANTS-APPELLEES. DOUGLAS G. BROWN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS ADMINISTRATOR OF THE ESTATE OF GREGORY BROWN AND JUDITH BROWN, PLAINTIFF-APPELLANT, V. P. DOOLING, III, E. O'KEEFE, F. HOSEY, H. POVINELLI, INDIVIDUALLY IN THEIR OFFICIAL CAPACITIES AS OFFICERS IN THE POLICE DEPARTMENT OF THE CITY OF MILFORD, CONNECTICUT, DEFENDANTS-APPELLEES. VERA CARTER, ON HER OWN BEHALF AND AS THE MOTHER AND NEXT FRIEND OF HER MINOR DAUGHTER, TASHA CARTER, WILLIE CARTER, AND WILLIAM OUTLAW, III, PLAINTIFFS-APPELLANTS, V. JACK KENNELLY, STEVEN CAHILL, DEFENDANTS-APPELLEES



Four appeals from partial judgments of the United States District Court for the District of Connecticut, Daly, Chief Judge, dismissing sua sponte all pendent state law claims and all civil rights claims brought against defendant police officers in their official capacities. Reversed and remanded.

Cardamone, Pratt, and Mahoney, Circuit Judges.

Author: Pratt

PRATT, Circuit Judge:

On September 3, 1987, Chief Judge Daly of the District Court for the District of Connecticut entered sua sponte identical orders in five civil rights cases that were brought under 42 U.S.C. § 1983, dismissing all pendent state law claims and all claims brought against police officer defendants in their official capacities. These sua sponte orders were filed without notice or an opportunity to be heard. After noting that official capacity suits "'generally represent only another way of pleading an action against an entity of which an officer is an agent'" (quoting Monell v. New York City Dep't of Social Services, 436 U.S. 658, 690 n.55, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)), and that, in each case, the officers' employers (the cities of Milford, Hamden, Bridgeport and New Haven, and the state of Connecticut) had not been made a party, the court ordered "that any reference to the individual defendants being sued in their official capacity be hereby stricken." After noting further that the exercise of pendent jurisdiction is discretionary, and that it had "given regard to all relevant considerations, including the potential for jury confusion," the district court also dismissed plaintiffs' state law claims in each of the five actions. Plaintiffs in all five actions were represented by the same firm of attorneys.

After plaintiffs in each case moved for partial judgment pursuant to Fed. R. Civ. P. 54(b), the district court stamped the motions in all of the cases except Carter with the following notation: "DECEMBER 21, 1987. There appearing no just reason for delay, the motion for final judgment on the pendent state law claims and the official capacity claim is GRANTED absent objection. Partial final judgment shall enter accordingly." These orders were signed by Chief Judge Daly. In Carter, Judge Eginton denied plaintiffs' initial motion for certification on December 17, 1987. After Chief Judge Daly granted certification in the other four cases, Judge Eginton granted a subsequent motion for reconsideration in Carter. That motion was stamped, "January 7, 1988: The motion is GRANTED. After reconsideration, the motion for partial judgment, Fed. R. Civ. P. 54(b), is granted." All plaintiffs appealed, but one of the cases was apparently settled prior to argument of the appeals. A brief description of the remaining four actions follows.

Brown v. Dooling was brought against four Milford police officers by the parents of a 13-year-old boy who committed suicide. The § 1983 complaint asserts that the defendants, who responded to a report that the boy was about to kill himself but then left the boy alone without conducting any significant investigation, acted with deliberate indifference to plaintiffs' constitutional rights. See Doe v. New York City Dep't of Social Services, 649 F.2d 134, 141 (2d Cir. 1981), cert. denied, 464 U.S. 864, 104 S. Ct. 195, 78 L. Ed. 2d 171 (1983). The complaint includes a pendent state law negligence claim based on the same facts, and seeks compensatory and punitive damages and "such other relief as this court may consider to be just, fair and equitable." The sua sponte order was entered one year after the defendants answered the complaint.

The four plaintiffs in Carter v. Kennelly alleged that two Hamden police officers violated various constitutional rights and §§ 1983 and 1988 by conducting an illegal search and seizure. The complaint alleges a number of state law claims, including negligence, intentional infliction of emotional distress, and wrongful seizure of property. Plaintiffs seek money damages and an injunction requiring the defendants to return the seized property. In this case the sua sponte order was entered before the defendants answered the complaint.

Perez v. Ortiz was brought by a mother and daughter against three Bridgeport police officers for constitutional violations arising from false arrest, excessive force, and malicious prosecution. Pendent state claims based on the same facts include assault and battery, intentional infliction of emotional distress, and malicious prosecution. Plaintiffs seek money damages and "such other relief as the court shall consider to be fair and equitable." The sua sponte order was entered before returns of service were filed and three months before answers were filed.

The plaintiff in Zapp v. Casabarra alleges that New Haven police officers violated her constitutional rights by entering her home without a warrant, arresting her without probable cause, and subjecting her to malicious prosecution and excessive force. In addition to her § 1983 claim, she asserts state law claims for trespass, assault and battery, and malicious prosecution. She seeks compensatory and punitive damages and "such other relief as this Court considers just, fair and equitable". The sua sponte order was filed four months after defendants' answer.

On appeal plaintiffs argue that Chief Judge Daly adopted a per se rule of refusing ever to entertain pendent state law claims in civil rights actions and erred in dismissing the pendent state law claims in these cases without engaging in any case-specific analysis. Plaintiffs argue as well that the district court erred in dismissing the claims against police officers in their official capacities without affording the plaintiffs notice and an opportunity to be heard or an opportunity to amend their complaints.

In none of these four cases did defendants seek the relief granted in the sua sponte orders, but all of the defendants argue that the dismissals were appropriate. The Zapp and Perez defendants argue, as well, that the district court erred in granting the plaintiffs' motion for partial judgment because the plaintiffs did not show the absence of just reason for delay as required by rule 54(b).

Preliminarily, although we recognize that the district court's compliance with rule 54(b) may have fallen short of the standard we have required in earlier cases, we conclude that the policies underlying rule 54 will be served by our exercising jurisdiction over these appeals. On the merits of the appeals, we conclude that the district court abused its discretion in entering the sua sponte dismissal orders in these cases.

Discussion

1. Certification under Fed. R. ...


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