Order on Motion to Dismiss

    dttlK

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTEE GARNER,
Plaintiff,

vs.
MEMPHIS POLICE DEPARTMENT, 
et al,

Defendants.

ORDER ON
MOTION TO DISMISS

NO. C-75-145

This is an action for compensatory and punitive 
damages brought by the father of Edward Eugene Garner, a black 
youth who allegedly was fatally shot by a Memphis police officer, 
defendant E. R. Hyman, on October 3, 1974. It is alleged that the 
type of bullet with which Garner was shot, a Remington 125 grain 
jacketed hollow point bullet or "Dum Dum" type bullet, was of such 
a known lethal quality that its use in the apprehension of Garner 
was cruel and inhuman punishment; summary punishment denying Garner 
the right to trial by jury and due process of law; an unreasonable 
seizure of the body of Garner; and further it is asserted that the 
shooting was racially motivated and thus a denial of equal protec­
tion of the laws, all in violation of constitutionally protected 
rights and interests.

The Memphis Police Department, the Director of Police, 
Jay W. Hubbard, Mayor Wyeth Chandler, and the City of Memphis are 
also defendants, in addition to the individual police officer. In 
addition to the claim for damages for violation of federal rights, 
plaintiff seeks wrongful death damages under Tennessee law as a

21



pendent claim and a declaratory judgment that use of the "Dum. Dum" 
type biallets by police officers to apprehend suspected fleeing 
felons is unconstitutional.

The action is presently before the Court on the 
defendants' jointmotion to dismiss. Numerous grounds are assigned 
in the defendants' motion: (1) failure to state a claim upon which
relief can be granted; (2) the City and the Police Department are 
not "persons" within the meaning of the Civil Rights Act of 1871; (3)
the City is not a "person" under the Civil Rights Act and is not sub­
ject to the equitable relief plaintiff seeks; (4) the doctrine of 
respondeat superior is not applicable to the City and Police Depart­
ment under the Civil Rights Act and the law of Tennessee; (5) the 
City is protected by the doctrine of governmental immunity, (6) the 
doctrine of respondeat superior is not applicable to the Mayor and 
Director of Police acting in their official, supervisory capacities, 
and (7) denial of liability for the pendent state law claim.

For present purposes, the various grounds stated in 
the motion fall into two categories, those essentially coming within 
Fed. R.Civ.P. 12(b)(6) - "failure to state a claim upon which relief 
can be granted" - and those falling within Fed.R.Civ.P. 12(b)(2) - 
"lack of jurisdiction over the person."

The Court is satisfied that the Rule 12(b)(6) element 
of defendants' motion must fail. A complaint should not be dismissed 
for failure to state a claim "unless it appears to a certainty that 
plaintiff is entitled to no relief under any state of facts which 
could be proved in support of the claim." 2a Moore's Federal Practice, 
H12.08 (1974). See Azar v. Conley, 456 F.2d 1382, 1384 and n. 1 (6th 
Cir. 1972). Construed liberally and in a reasonable light, as it must 
be, the complaint in this action sets out at least justiciable claims

22
-  2



against each of the defendants.
The jurisdictional issues are not so easily resolved. 

The complaint asserts that the action is brought pursuant to 42
U. S.C. §§1981, 1982, 1983, 1985, 1986 and 1988 to redress the depri­
vation of rights, privileges and immunities secured by the Fourth, 
Fifth, Sixth, Eighth, and Fourteenth Amendments. Jurisdiction is 
said to be conferred by 28 U.S.C. §1343(3) and 28 U.S.C. §1331.

Jurisdiction is properly conferred by 28 U.S.C.
§1343 as to all defendants except the City of Memphis and the Memphis 
Police Department. Insofar as plaintiff asserts a claim for relief 
under 42 U.S.C. §§1981, 1982, and 1988, this Court has jurisdiction 
over the City and the Police Department as well as over the other 
defendants. However, it is well established, and conceded by the 
plaintiff, that the City and the Police Department are not "persons" 
within the meaning of 42 U.S.C. §§1983, 1985 and 1986, and this 
Court has no jurisdiction under 28 U.S.C. §1343 as to claims under 
those sections against the City and Police Department. Monroe v. 
Pape, 365 U.S. 167 (1961); City of Kenosha v. Bruno, 412 U.S. 507 

(1973).
The plaintiff contends, however, that general federal 

question jurisdiction under 28 U.S.C. §1331 exists for the very 
claims against the City and Police Department which cannot be based 
on 28 U.S.C. §1343. Barred from a claim under 42 U.S.C. §§1983, 1985 
and 1986, because of the "municipal immunity' recognized in Monroe
V, Pape, supra, plaintiff would cast his claim against the City and 
Police Department as based not on the Civil Rights Act of 1871, but 
rather, on the Constitution itself. Thus, plaintiff contends his 
claim is for violation of constitutionally recognized rights, his 
claim therefore "arises under the Constitution," and the alleged 
matter in controversy exceeding $10,000, general federal question

23
-  3 -



jurisdiction is proper.
Faced with the issue whether municipal immunity was 

applicable to §1331, the district court in Dahl v. City of Palo Alto, 
372 F.Supp. 647, 650 (N.D. Calif. 1974) stated:

If jurisdiction will lie under 
§1331 in a case such as this one, the 
application of the Monroe bar on suits 
against municipalities is limited to 
those cases where less than $10,000 is 
in controversy. What appears to be the 
broad substantive significance of Monroe 
is then reduced, in many cases, to a 
mere pleading rule.
Nonetheless, the court in Dahl, supra, held that a 

municipality is suable under §1331 if the federal question is shown 
and the required jurisdictional amount is in controversy. That con­
clusion was found to be required under the implied holding of City 
of Kenosha v. Bruno, supra. The court in Dahl further concluded 
that "Examination of the legislative histories of §§1983 and 1331 
suggests that the bar against suing a municipality under §1983 should 
not be read into §1331." 372 F.Supp. at 650. Section 1331 was first
enacted in 1875 and was "the culmination of efforts dating back to 
the first Congress to give general federal question jurisdiction to 
the federal judiciary." Id. at 651.

Although not clearly stated, the implication of 
Justice Rehnquist's opinion for the court in City of Kenosha v.
Bruno, supra, is that §1331 may be an available jurisdictional al­
ternative to a plaintiff with a claim against a municipality which 
is barred under the Civil Rights Act of 1871. On remand, the district 
court was instructed to consider whether the requisite $10,000 amount 
in controversy was present so as to confer §1331 jurisdiction. 412 
U.S. at 513-14. The opinion implies that §1331 may be an available 
alternative to §1343 if the amount in controversy element is present.

24
-  4



The concurring opinion of Justice Brennan, joined by Justice Marshall, 
indicates his understanding that the court was holding that §1331 is 
an independent alternative to §1343. at 516. For this propo­
sition, Justice Brennan cites Bell v. Hood, 327 U.S. 678 (1946) and 
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).

Bell and Bivens both involved actions for damages 
brought against federal law enforcement officers for alleged viola­
tions of constitutional rights in the manner in which the plaintiffs 
had been arrested and subjected to searches. In Bell, the Supreme 
Court held that where alleged violations of the Constitution con­
stituted "the sole basis of the relief sought" and decision on the 
merits of the plaintiffs' claims necessitated "a determination of 
the scope of the Fourth and Fifth Amendments' protection from un­
reasonable searches and deprivations of liberty without due process 
of law," federal jurisdiction existed.

In Bivens, the court held, in the words of Justice 
ilarlan in his scholarly concurrence: " . . .  federal courts do have
the power to award damages for violation of 'constitutionally pro­
tected interests' and . . .  a traditional remedy such as damages is 
appropriate to the vindication of the personal interests protected 
by the Fourth Amendment." 403 U.S. at 399.

Bell and Bivens, however, are distinguishable from 
the case at bar in that they both were actions against federal officers, 
not state or local offi.cers, and in the absence of a remedy provided 
by federal statutory law, the plaintiffs successfully argued that 
their claims of constitutional rights violations conferred general 
federal question jurisdiction on the district court. Where, however, 
the alleged violation of constitutional rights was committed by state 
officers. Congress has provided a statutory remedy in the Civil Rights

-  5 -
2o



Act of 1871. It seems logical that a plaintiff whose claim other­
wise is squarely within the compass of 42 U.S.C. §§1983, 1985 and 
1985 except for the municipal immunity recognized in Monroe v. Pape, 
supra, ought not be allowed to evade the clear import of Monroe 
through use of 28 U.S.C. §1331. Where Congress has provided spe­
cific remedial statutes exactly applicable to a plaintiff's cause 
of action, it is not unreasonable to say that the plaintiff must 
fall within the confines of that statutory scheme and its judicial 
limitations.

Despite the implications of City of Kenosha v. Bruno, 
supra, this Court feels that §1331 is not an available alternative 
to §1343 where the latter is impermissable because a municipality is 
sued under the Civil Rights Act of 1871. The defendant* motion to 
dismiss might be ordinarily granted as to the City and the Police 

^  Department except for the substantial weight of authority to the 
contrary. See, e.g., Pitts v. Chandler, Civil No. C-74-306 (W.D. 
Tenn., Memorandum Decision and Order, filed Sept. 16, 1974, Judge 
Bailey Brown); Dupree v. City of Chattanooga, Tenn., 362 F.Supp.
1135 (E.D. Tenn. 1973), Judge Frank W. Wilson); Dahl v. City of Palo 
Alto, supra; Cardinale v. Washington Technical Institute, 500 F.2d 
791, 795 at fn. 4 (D.C. Cir. 1974); United Farmworkers of Fla. Housing 
Project, Inc, v. City of Delray Beach, 493 F.2d 799, 801-802 (5th Cir. 
1974); Traylor v. City of Amarillo, Texas, 492 F.2d 1155, 1157 at fn.
2 (5th Cir. 1974); Jorden v. Metropolitan Utilities District, 498
F.2d 514 (8th Cir. 1974).

The Sixth Circuit case of Bosely v. City of Euclid,
496 F.2d 193 (6th Cir. 1974) also indicates that a city might be 
subject to a civil rights claim under Sec. 1331 jurisdiction. This 
Court feels that logically the City and its Police Department should

-  6 -



be exempt or immune from this type of claim under a 42 U.S.C.
§1983 et seq. cause of action whether jurisdiction is asserted under 
§1343 or §1331 under Monroe v. Pape, supra, rationale. By inference, 
however, as indicated, appellate courts have indicated to the contrary,

Defendants' motion to dismiss is overruled^ reluctantly 
as to the City of Memphis and the Police Department, on the §1331 
jurisdictional basis.

This ________ day of August, 197 5.

) /
4 0 i- Q

UNITED STATES DISTRICT COURT JUDGE
( J

c

27
-  1 -