OPINION OF THE COURT
ALDISERT, Circuit Judge.
Plaintiff has appealed from the direction of a verdict for the defendants in an action brought "under the Civil Rights Statute, the Act of June 25, 1943, 62 Stat. Title 28 U.S. Code Section 1343(3) as amended is [sic] herein after more fully appears, and the 8th Amendment to the United States Constitution."
Plaintiff, a diabetic who demonstrated symptoms of intoxication when he was involved in an automobile accident, contends that in the process of a police investigation of that accident, he was physically assaulted in a Philadelphia police station. He remembers nothing of the incident or occurrences for ten days thereafter, allegedly because of his diabetic condition. He relied upon an eye witness to describe the alleged beating, and introduced no testimony, lay or medical, delineating the nature or the extent of personal injuries he allegedly received.
This appeal admits of no easy resolution. It is a procedural tour de force, and the paucity of testimony introduced at trial before a jury did not simplify the task of the district court.
Initially, we must determine the precise nature of the civil action before the
There exist many indications, however, that this proceeding was viewed as an action under § 1983. The defendants attacked the amendment by citing § 1983 cases construing statutes of limitations. In discharging the jury, the court reported: "This case is brought under the Civil Rights Act, a recent Act of Congress passed in 1966, with some amendments since, I believe, but it goes back to an Act of 1873 or '74 known as the Civil Rights Act, which says, very briefly, that any person who deprives another of his constitutional rights acting under color of law is in violation of the Act."
Initially, we observe that 28 U.S.C. § 1343(3) is jurisdictional only. It does not supply a basis or a claim for relief. Where there is a deprivation of constitutional rights by state officers the appropriate source of explicit statutory relief is 42 U.S.C. § 1983.
To construe these written pleadings, literally founded upon § 1343, as constituting an action under the Civil Rights Act, 42 U.S.C. § 1983, would be comparable to the action of the Supreme Court in 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), where the Court held to be sufficient a complaint against federal officers alleging naked Fourth Amendment deprivations and relying on the federal question jurisdiction statute, 28 U.S.C. § 1331. Similarly, it would appear
We therefore look beyond the pleadings here because the district court and all of the litigants proceeded as if this were a § 1983 proceeding. F.R.Civ.P. 15(b) provides "[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings." The instant action appears to represent the paradigm case of an issue not raised in the pleadings, but tried with the implied consent of the parties and the express consent of the court as a § 1983 action for money damages.
So construing these proceedings, it becomes necessary to determine the precise federal statutory violation or unconstitutional deprivation relied upon by plaintiff. We experience difficulty construing this action as one postulated on the First and Fourteenth Amendments.
In addition, in paragraph XII of both the original and amended complaints, the constitutional deprivation appeared limited to an allegation
This specific averment seems consistent with the opening paragraph of both the original and amended complaints:
Paragraph XI of the original and amended complaints provided:
On the basis of these allegations, we find that the specific pleadings are consistent with an allegation of an infliction of cruel and unusual punishment as proscribed by the Eighth Amendment.
Our conclusion is buttressed by the specific manner with which plaintiff's attorney made her opening statement, presented the evidence, and made her final argument to the court in response to the motion for directed verdict.
Now that we have determined the precise nature of this action and the constitutional deprivation asserted, we must ascertain which of these named defendants are legally cognizable parties to this proceeding.
Initially, we find that the district court properly dismissed the action
Further, we agree with the district court's dismissal of the action against defendants Captain Keane of the 25th Police District, Police Commissioner Frank Rizzo, and Mayor James H. J. Tate.
The incident giving rise to this action occurred on December 21, 1966. These individuals were not named in the original complaint, but were added as defendants in the amended complaint, filed May 30, 1970, over three years and five months after the accident. We do not reach the question of whether these defendants can be held liable without proof that they acted personally in the deprivation of plaintiff's rights, cf., Bennett v. Gravelle, 323 F.Supp. 203, 214 (D. Md.1971); Sanberg v. Daley, 306 F.Supp. 277, 279 (N.D.Ill.1969), because we hold that the action against them was barred by operation of the statute of limitations.
The applicable period of limitations in a § 1983 action is that which the state courts would apply if the action were brought in a state court under state law. Butler v. Sinn, 423 F.2d 1116 (3d Cir. 1970); Hileman v. Knable, 391 F.2d 596 (3d Cir.1968). Had this action been brought by plaintiff as a tort action in the Pennsylvania courts, as to these defendants, it would have been barred by the applicable statute of limitations, Act of June 24, 1895, P.L. 236 § 2; 12 Pa. Stat.Anno. § 34:
Essentially then this appeal resolves itself to whether a prima facie case of cruel and unusual punishment was made out against the police officers identified as actually participating in the incident. Clearly, not all tortious conduct subject to liability under state law constitutes "cruel and unusual punishment" under the Federal Constitution. Moreover, this court has already stated: "Nor are we able to perceive that a tort committed by a state official acting under color of law is, in and of itself, sufficient to show an invasion of a person's right under the Act." Kent v. Prasse, 385 F.2d 406, 407 (3d Cir. 1967). Thus, an averment of improper medical treatment was held insufficient by this court to state a cause of action under § 1983, Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir.1970); Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 90 S.Ct. 278, 24 L.Ed.2d 234 (1969); as was an averment of inferior medical treatment facilities for treatment of an ear infection, Kontos v. Prasse, 444 F.2d 166 (3d Cir.1971); as was an averment of being forced to work in prison on a press which was dangerous and unfit and which had previously been condemned, Kent v. Prasse, supra, 385 F.2d at 407.
A right to relief under § 1983 is not exclusively predicated upon a breach of duty imposed by the law of torts.
The rights protected by § 1983 are public ones, created or adopted by the Federal Constitution or by Congress. By comparison, "[a] tort is an act or omission which unlawfully violates a person's right. . . . It will be observed that the right violated is private not public. This differentiates tort from crime." Burdick, Law of Torts, 1st Ed. pp. 4-5. These federal rights are therefore publicly created, but subject to private vindication. In theory they are akin to the private rights governing the law of torts established either by common law or by statute. But unlike the varying strictures of private tort law, there is a public policy of broad interpretation of the rights sought to be protected. Valle v. Stengel, 176 F.2d 697, 702 (3d Cir. 1949). "The Act prescribes two elements as requisite for recovery: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States." Basista v. Weir, supra, 340 F.2d at 79. Once there is recognition of the right sought to be vindicated, the proof of the deprivation proceeds "against the background of tort liability." Monroe v. Pape, supra, 365 U.S. at 187, 81 S.Ct. at 484.
Thus, although proof of specific intent to deprive a person of his federally protected rights is not required, there must be at least proof of the "condition usually demanded by the law for liability in an action of tort [which] is the existence of either wrongful intention or culpable negligence on the part of the defendant." Salmond, Law of Torts, 6th Ed. 1924, p. 11.
Emphasizing that we are not dealing with a tort qua tort, but with an invasion of a constitutional protection, and recognizing that an examination of that protection and the invasion thereof requires the application of "the background of tort liability," we must now decide whether the evidence here amounted to an Eighth Amendment deprivation. This would require proof of:
The plaintiff proved that he was a diabetic, having in his possession on that day a card reading, "I am a Diabetic. My behavior during reactions to therapy may resemble that of an intoxicated person." His physician testified that "medical literature . . . is filled with cases of mistakes between a low blood sugar and the type of irregular behavior that is seen in acute alcoholism."
Although diagnosed as "a brittle diabetic," and having the potential of going into shock at any time even with regular administrations of insulin, the plaintiff, incredibly, continued to operate an automobile on the streets of Philadelphia. On December 21, 1966, he collided with an automobile driven by witness McGraw and, as previously observed, plaintiff has no present recollection of this event or of anything subsequent for a ten-day period thereafter. McGraw testified that plaintiff ran into the back of his car, that the police came, that they told him that Howell "was so drunk he was incoherent," that "they tried to get Mr. Howell into the police car but he couldn't bend over or he wouldn't bend over," and that Howell "was just standing there smiling, a big smile, and looking straight ahead and smiling. He wasn't saying anything or doing anything . . . so they told me, well, they will have to call a wagon, and then a wagon came and four officers picked
McGraw described the assault at the police station, revealing that there were six police officers present, including the two defendants. He testified that Howell
In Anderson v. Nosser, 438 F.2d 183 (5th Cir. 1971), the Fifth Circuit was faced with a § 1983 claim that plaintiffs were arrested, assaulted, and subjected to the grossest and most humiliating of human indignities by law enforcement personnel in Natchez, Mississippi. In holding that plaintiffs had been denied rights protected by the Eighth Amendment, the court emphasized:
We subscribe to Judge Goldberg's characterizations of the cruel and unusual punishment clause in Anderson as "a nonstatic, moral precept" rather than as a prohibition of grievous tortious conduct. If construed as the latter, there would be a tendency to conceptualize it as something measured by the degree of injuries inflicted, as, for example,
Where, as here, however, the plaintiff was handcuffed, was inside a police station, was at worst a suspected misdemeanant, and was surrounded by six officers, other considerations should dominate.
Jordan v. Fitzharris, 257 F.Supp. 674, 679 (N.D.Cal.1966).
Nor was it necessary, to bring this claim within the locutions of the Eighth Amendment, for plaintiff to prove that the actors intended to "punish" him. Although that Amendment proscribes the infliction of cruel and unusual "punishment," clearly it was their conduct which pierced the constitutional shield, not their motive. All that is required is proof that the conduct was intentional. There is no requirement of proof of a further objective toward which the conduct is directed. "While a specific intent to deprive a person of his constitutional rights is required under criminal sections of the Civil Rights Acts, 18 U.S.C. §§ 241, 242, neither specific intent nor purpose to deprive an individual of his civil rights is a prerequisite to civil liability under the civil provisions of the Civil Rights Act. See Stringer v. Dilger, 313 F.2d 536 (10 Cir. 1963)." Basista v. Weir, supra, 340 F. 2d at 81.
Thus, although what "constitutes a cruel and unusual punishment has not been exactly decided," Weems v. United
Our inquiry, however, does not end here. Only two of the six police officers, Cataldi and Kinsella, were named as defendants in these proceedings. The district court found that there was insufficient identification testimony to link these men to the affray. At the time the plaintiff rested, the sole testimony was that of Mr. McGraw who, describing the affray at the police station, stated:
This is the only time either Cataldi or Kinsella was linked to the beating. Clearly, without more, this evidence was insufficient to identify Cataldi and Kinsella as participants.
The next day, over objection, the court permitted plaintiff to reopen his case, at which time admissions from the pleadings were read into the record, viz., that Cataldi and Kinsella were police officers, that they answered the call to an automobile accident on the date, that plaintiff was involved in the accident, and that "an argument ensued between the answering defendants and the plaintiff. . . ." The defendants were the only police officers in the car, others arrived in a "paddy wagon." It can properly be said that a link was established connecting these defendants with Mr. McGraw's reference to "two officers that were in the car."
We then must decide whether the combination of the admission and the statement was sufficient to make out a prima facie case against either or both defendants. McGraw testified that "one picked Mr. Howell" and "one had a wooden club." The statement that one "picked Mr. Howell" is an extremely fragile reed upon which to impose liability. We have heretofore emphasized that it was necessary to prove that the conduct of the participants was intentional or purposeful. But prerequisite to a determination that one acted intentionally or purposefully is an ascertainment that the individual charged was the perpetrator of the constitutional deprivation. Mere presence of a person, when an assault and battery is committed by another, even though he mentally approves of it, but without encouragement of it by word or sign, is not sufficient of itself to charge him as a participator in the assault. 6 C.J.S. Assault and Battery § 27. Conceivably, use of the word "picked" in another context could have brought this actor within the orbit of liability, if, for example, there had been more than one prisoner involved in the affray. The act of "picking" the plaintiff, in the sense of choosing or selecting, could have thus been construed as encouraging by word or sign the assault by others. Where there is only one victim, however, and he was described as having been "picked," the
Thus, we do not have conduct rendering two or more actors liable. We are left with but one actor, in the words of witness McGraw, the "one [who] had a wooden club and [who] started banging" on Howell's shins.
There is no proof that Cataldi wielded the club or that Kinsella did; all that was said was that one of the two did. Reliance on 433 B of Restatement of Torts 2d
In Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967), we dismissed a § 1983 complaint as insufficient because of "its failure to state facts in support of its conclusions. The charges of beatings and cruel and unusual punishment are made against the defendants generally and not against any particular defendant." Moreover, this court has been extremely cautious about imposing individual criminal liability where there are multiple actors in an assault and the identification testimony is ambiguous. In United States v. Barber (Appeal of Loper), 429 F.2d 1394, 1397 (3d Cir. 1970), Chief Judge Hastie stated, "Something of significance beyond the fact of presence is necessary to justify a conviction." Out of the same affray came an appeal by Brunswick to this court in United States v. Barber, 442 F.2d 517, 523-524 (3d Cir. 1971), wherein we reversed his conviction because of the ambiguity generated by the use of the word "one" by an eye witness describing one of two F.B.I. agents who were victims of a mass assault:
Recognizing that our analogy has been directed to criminal cases where identification must be proved beyond a reasonable doubt as contrasted with civil cases where the proof need only rise to a preponderance of the evidence, we hold that here plaintiff failed to meet his burden. Accordingly, we conclude that the district court did not err when it directed a verdict in favor of Cataldi and Kinsella because of plaintiff's failure to make an appropriate identification.
The judgment of the district court will be affirmed.
VAN DUSEN, Circuit Judge (dissenting):
I respectfully dissent from the conclusion of the majority (Part V, page 282 ff. of majority opinion) that the plaintiff failed to meet his burden of proving that defendants Cataldi and Kinsella denied plaintiff his civil rights through inflicting cruel and unusual punishment upon him. As I read the record of the trial, the following evidence required the district court to deny the motion for a directed verdict at the end of plaintiff's case.
The eyewitness testified that two officers entered the police station with plaintiff "and they walked him up to the counter and then the one officer took his hands behind Mr. Howell's head and smashed it into the counter" (N. T. 45). Plaintiff pushed back from the counter and the two officers then threw him to the floor and hit him with their fists and a blackjack (N. T. 46). At this point, as noted at page 282 of the majority opinion, defendants Cataldi and Kinsella, whom the jury could have found "were the two officers in the car when it happened," were referred to as participants in the assault.
Since "all" six officers participated in this assault, the defendants Cataldi and Kinsella must have taken part in it also.
Under these circumstances, the following principle contained in § 433B(3), Restatement of Torts 2d, and the totality of the evidence shifted the burden of proof to the defendants to go forward with evidence at the close of plaintiff's case, since the jury was entitled to accept the above evidence:
In my view, the above evidence is sufficient to permit the jury to find that each of the above-named defendants assaulted plaintiff, inflicting cruel and unusual punishment on him. I would reverse and remand for a new trial.
Although the first dictionary meaning of the verb "pick" includes an assault with a pointed object, as noted in footnote 13 of the majority opinion, it seems more sensible to remand the case for determination of whether the notes of testimony do not indicate that "kicked" was the word used by the witness, in view of this language appearing at page 14 of the deposition of the eyewitness (Document 9 in district court file):