Arko v. Broom

518 F. Supp. 669, 1981 U.S. Dist. LEXIS 13626
CourtDistrict Court, D. Colorado
DecidedJuly 22, 1981
DocketCiv. A. No. 80-Z-1054
StatusPublished
Cited by2 cases

This text of 518 F. Supp. 669 (Arko v. Broom) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arko v. Broom, 518 F. Supp. 669, 1981 U.S. Dist. LEXIS 13626 (D. Colo. 1981).

Opinion

ORDER DISMISSING COMPLAINT

WEINSHIENK, District Judge.

Plaintiffs, John Eric Arko and Jack Ronald Bisgard, former Aurora City policemen, bring this civil rights action against defendants Robert Broom, Aurora City Manager, Captain M. R. Walker, Commander, Staff Inspection Bureau, Aurora Police Department, Thomas Boam, Retired Aurora Chief of Police, Benny K. Blake, Aurora Chief of Police, Sergeant James Farrell, Commander, Line Support Unit, Aurora Police Department, Dennis Champine, Mayor of Aurora, and the City of Aurora. Plaintiffs claim that defendants instituted and maintained a “pattern of conduct” which exposed them, as officers in the Police Department’s Line Support Unit (LSU), to the mandatory use of addictive drugs as a condition of employment. After learning of plaintiffs’ consequent clinical psychosis and paranoia, defendants repeatedly ordered plaintiffs to appear for internal investigations and to submit to medical examinations. Plaintiffs assert that defendants’ actions have deprived them of their rights to “(1) freedom from physical abuse, coercion and intimidation; (2) freedom to participate in, or enjoy any benefit or service provided by the Federal or State Government; [and] (3) apply for and enjoy employment with any Federal or State Agency or union.” Asserting violations of 42 U.S.C. §§ 1983 and 1985(3) and of Amendments I, V, and XIV to the United States Constitution, and invoking this Court’s jurisdiction under 28 U.S.C. § 1343(3), they seek compensatory and punitive damages.

This matter is now before the Court on defendants’ motion to dismiss or for summary judgment. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b) on grounds of failure to state a claim upon which relief can be granted and of lack of [671]*671subject matter jurisdiction. They contend that plaintiffs’ constitutional rights do not include protection against “exposure to and use of dangerous or addictive drugs” and hence, that their Complaint does not state a claim under 42 U.S.C. § 1983. In the alternative, defendants submit that they are entitled to summary judgment on all claims. They offer affidavits of six officers who were either members or supervisors of the LSU during plaintiffs’ tenure. Each affiant avers, inter alia, that the LSU forbids members to use addictive drugs; that, upon discovery of an officer’s drug use, the officer is immediately suspended pending a complete investigation; that the plaintiffs were not required to use drugs in order to maintain their positions with the LSU; and that the affiant had no suspicion or knowledge of plaintiffs’ drug use while they were members of the LSU. On the basis of these statements, defendants assert that there are no genuine issues of material fact remaining for resolution at trial and that they are entitled to judgment as a matter of law.

Contending that the allegations in the Complaint are sufficient to state a claim under § 1983, and that there are disputed questions of fact, plaintiffs oppose the motion. They urge that the allegations support a claim for violation of their interest in personal security, a liberty interest within the meaning of the due process clause of the Fourteenth Amendment, and thus, do establish subject matter jurisdiction. In response to the motion for summary judgment, plaintiffs submit copies of their Employee Evaluations during their service on the LSU, their own affidavits, and the affidavit of Russell Wynn Rogers. In his respective affidavit, each plaintiff declares, inter alia, that his Supervisor, Sergeant Farrell, instructed him to use marijuana and other dangerous drugs in order to obtain arrests and that Sergeant Farrell was aware of the drug use among LSU members. Russell Rogers states that he was an informant for the LSU, and that he personally observed plaintiffs, as well as other LSU officers, use drugs in their undercover work. He recounts that Sergeant Farrell informed him that all LSU officers were trained to use marijuana and cocaine and that such drug use was part of the LSU operating procedure to secure arrests of those suspected of drug abuse. Plaintiffs argue that these affidavits raise disputed questions of fact, precluding disposition of the case on defendants’ motion for summary judgment.

Having considered the pleadings, the parties’ positions as set forth in their respective memoranda and supporting affidavits, and relevant statutory and case law, the Court is now fully informed and prepared to rule on the motion.

A Complaint should not be dismissed for failure to state a claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-56, 78 S.Ct. 99,101-102, 2 L.Ed.2d 80 (1957). Applying this principle to this Complaint, the Court will grant the motion to dismiss for failure to state a claim and for lack of subject matter jurisdiction.

In Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979), the Supreme Court held that § 1983 is not an Act of Congress “providing for equal rights” within the meaning of § 1343(3) or “providing for the protection of civil rights” within the meaning of § 1343(4). 441 U.S. at 617-620, 99 S.Ct. at 1915-1917. As the Court explained,

Under § 1343(3), a civil action must be both “authorized by law” and brought to redress the deprivation of rights “secured by the Constitution of the United States or by any Act of Congress providing for equal rights.” Section 1983, when properly invoked, satisfies the first requirement: It ensures that the suit will not be dismissed because not “authorized by law.” But it cannot satisfy the second, since by its terms, as well as its history, it does not provide any rights at all.

441 U.S. at 618, 99 S.Ct. at 1916. In its discussion of § 1343(4), the Court indicated that the same rationale applies to suits un[672]*672der § 1985(3). 441 U.S. at 618-20, 99 S.Ct. at 1916-1917. Therefore, plaintiffs’ claims of violations of §§ 1983 and 1985(3) are insufficient to confer subject matter jurisdiction under § 1343(3).

Amendments I, V and XIV to the United States Constitution do, however, protect civil rights and hence, proper allegations of their violation do confer subject matter jurisdiction under § 1343(3). Thus, the Court must determine whether the allegations in the Complaint are sufficient to support these constitutional claims.

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Cite This Page — Counsel Stack

Bluebook (online)
518 F. Supp. 669, 1981 U.S. Dist. LEXIS 13626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arko-v-broom-cod-1981.