Salvadore Rotolo v. The Borough of Charleroi (Two Cases)

532 F.2d 920

• Court: Court of Appeals for the Third Circuit
• Decided: March 22, 1976
• Docket: 73-1368 and 73-1369
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM:

This is an appeal from ah order granting defendant’s motion under Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff’s two civil rights complaints for failure to state a claim upon which relief can be granted. We believe the district court erred in dismissing the complaints without allowing plaintiff opportunity to amend. We therefore vacate the judgment and remand with directions to allow amendment to the pleadings within a reasonable period.

The plaintiff, Salvadore Rotolo, was terminated from his employment as a building inspector for the defendant municipal corporation, the Borough of Charleroi, Pennsylvania. He avers that four Borough councilmen voted to terminate his employment “because the Plaintiff had exercised his First Amendment privileges.” Thereupon, Rotolo filed in the United States District Court for the Western District of Pennsylvania two civil rights complaints under 42 U.S.C. § 1983 (1971), alleging that defendants had denied him his first amendment rights.¹ One complaint, seeking in excess of $25,000 money damages, named as defendants the Borough of Charleroi and the four councilmen² who allegedly voted for termination of Rotolo’s employment. The other complaint, seeking on injunction against filling the vacancy caused by his termination, named as defendants the Borough and seven Borough councilmen.³

Rotolo’s substantive allegations were identical in both complaints:

3. Prior to August 23, 1972, the Plaintiff was employed in the capacity of Building Inspector for the Defendant, Borough of Charleroi.

4. On or about August 23, 1972, the Defendants, Peter Celaschi, Theodore Breuer, Fred P. McLuckie and Armand Balsano, voted to terminate the Plaintiff’s employment with the Defendant, Borough of Charleroi, because the Plaintiff had exercised his First Amendment privileges under the Constitution of the United States.

5. That the aforesaid action on the part of the Defendants was a denial of the Plaintiff’s First Amendment rights to freedom of speech and freedom of expression.

The district court first correctly determined that Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), precluded suit against the Borough of Char-leroi under section 1983 as the municipality is not a “person” for purposes of that statute. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84, 86 (3d Cir. 1969), cert. denied, 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691 (1970). Although federal jurisdiction may nonetheless exist under 28 U.S.C. § 1331 (1971), City of Kenosha v. Bruno, 412 U.S. 507, 514, 93 S.Ct. 2222, 2227, 37 L.Ed.2d 109, 116 (1973), Roto-lo’s complaint is inadequate to establish jurisdiction under section 1331. Federal jurisdiction must be pleaded according to the nature of the case, and Rotolo made no mention of section 1331 in his complaint. McNutt v. GMAC, 298 U.S. 178, 182, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135, 1140 (1936); Smith v. Spina, 477 F.2d 1140, 1143 (3d Cir. 1973).

We believe this is an appropriate case for the application of 28 U.S.C. § 1653 (1971), which expressly allows amendment of defective jurisdictional allegations. Therefore, upon remand, Rotolo will be given an opportunity to amend the jurisdictional allegations in those parts of his complaints which refer to the Borough of Char-leroi.

As to the action against the individual defendants, the district court found both complaints lacking:

[T]he allegations are purely conclusory and fail to adumbrate any specific facts sufficient to state a cause of action or claim upon which relief can be granted

In this circuit, plaintiffs in civil rights cases are required to plead facts with specificity.⁴ Kauffman v. Moss, 420 F.2d 1270, 1275-76 (3d Cir.), cert. denied, 400 U.S. 846, 91 S.Ct. 93, 27 L.Ed.2d 84 (1970); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967).

The rationale of the Negrich requirement that facts be specifically averred was outlined in Valley v. Maule, 297 F.Supp. 958 (D.Conn.1968), and was quoted approvingly in Kauffman v. Moss, supra, at 1276 n. 15:

In recent years there has been an increasingly large volume of cases brought under the Civil Rights Act. A substantial number of these cases are frivolous or should be litigated in the State courts; they all cause defendants—public officials, policemen and citizens alike, considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate claims.

Subsequent to Negrich, the United States Supreme Court in Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam) adopted a strict standard for motions to dismiss prisoners’ pro se civil rights complaints:

We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, 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, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80, 84 (1957).

Id. at 520, 92 S.Ct. at 596, 30 L.Ed.2d at 654. Haines was harmonized with Negrich by this court in Gray v. Creamer, 465 F.2d 179, 182 n.2 (3d Cir. 1972). It suggested that the Haines standard would be applied to complaints in which “specific allegations of unconstitutional conduct” were made, whereas Negrich would continue to serve as a barrier to complaints which “contain only vague and conclusory allegations.”

We find the Negrich standard particularly appropriate here. The allegations in the complaint strike us as vague and conclusory. They fail to indicate, when, where, and how Rotolo had “exercised his First Amendment privileges,”⁵ rendering it impossible to determine if indeed his activity was the sort afforded protection under the first amendment and whether it had any relevance to the termination of his employment. The allegations state no facts upon which to weigh the substantiality of the claim; they do not aver the content of the alleged first amendment exercise.

We believe the district court properly applied Negrich. However, again it did not allow an opportunity for amendment. To accomplish the dual objectives of weeding out frivolous cases and keeping federal courts open to legitimate civil rights claims, courts should allow liberal amendment of civil rights complaints under Fed.R. Civ.P. 15(a). Nothing in Negrich precludes this; in fact, the Negrich court expressly noted that the district court in that case could permit the plaintiff to file an amended complaint. Kauffman, supra, at 1276.

The judgment of the district court will be vacated and the case remanded with directions to allow amendment to the pleadings within a reasonable period.

1 . Jurisdiction was premised on 28 U.S.C. § 1343 (1971) and Section 1983.

2 . Peter Celaschi, Theodore Breuer, Fred McLuckie, and Armand Balsano.

3 .Edward Fear, Fred Briggs, and Frank Pucci in addition to the councilmen listed in note 2.

4 . See also Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620, 622-23 (2d Cir. 1972), cert. denied, 410 U.S. 944, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973); Coo-persmith v. Supreme Court, State of Colorado, 465 F.2d 993, 994 (10th Cir. 1972); Finley v. Rittenhouse, 416 F.2d 1186, 1187 (9th Cir. 1969).

5 . The concurring and dissenting opinion assumes that Rotolo’s alleged exercise of his first amendment privileges took the form of an “utterance.” Apart from the conclusory reference to the denial of freedom of speech and expression, the complaint does not reveal the form and manner of Rotolo’s behavior at issue here.