Bunting v. City of Columbia (423 F. Supp. 446, 1976)

ORDER ON DEFENDANTS’ MOTION TO DISMISS

HEMPHILL, District Judge.

This matter comes before the court upon motion of the defendants, styled “Notice of Motion to Dismiss Complaint or For Severance of Claims”, which was accompanied by a Memorandum of Authorities and responded to by plaintiffs in a similar Memorandum. The case essentially involves an allegation by the two plaintiffs of wrongful discharge from their employment with the Columbia Police Department and seeks judgment reinstating them to their former employment positions and awarding them back pay. The plaintiffs’ claim against the Mayor, City Council and other individual defendants is based on 42 U.S.C. § 1983 and is before the court through the jurisdictional grant of 28 U.S.C. § 1343(3). The claim against the City of Columbia, as a body politic, which is not available under § 1983 due to the Supreme Court’s holdings in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) and City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), is alleged as a direct constitutional damage action under the Fourteenth and First Amendments that should be heard under 28 U.S.C. § 1331. The plaintiffs assert that their discharge amounted to a deprivation of due process guaranteed them under the Fourteenth Amendment and an infringement of the rights of free speech and association which are theirs under the First and Fourteenth Amendments. This order addresses a single issue: Whether the defendant City of Columbia, as a body politic and municipal corporation, may be sued directly under the Fourteenth Amendment, or whether the action against it must be dismissed under Federal Rule of Civil Procedure 12(b)(6)?

While the Monroe and Kenosha cases, supra, establish that a municipality is not a proper “person” under 42 U.S.C. § 1983, the plaintiff argues that the holding of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) establishes a federal “common law” tort action based directly on the Constitution which may be brought against political subdivisions of the several states for constitutional deprivations. See generally, Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532 (1972); Hundt, Suing Municipalities Directly Under the Fourteenth Amendment, 70 N.W.U.L.R. 770 (1976). In Bivens, the plaintiffs’ house was illegally searched and he was falsely arrested and imprisoned by federal narcotic agents. He brought an action against them individually in Federal District Court under 42 U.S.C. § 1983 and its jurisdictional counterpart 28 U.S.C. § 1343(3); and under the Fourth Amendment directly, alleging jurisdiction as a claim arising under the Constitution of the United States authorized in 28 U.S.C. § 1331. The action against the officers under § 1983 was dismissed because that statute does not apply to actions taken under color of federal law. The Supreme Court held, however, that the plaintiff had stated a cause of action, stating:

[T]hat damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.