Build of Buffalo, Inc. v. Frank A. Sedita, as Mayor and Chief Executive of the City of Buffalo , 441 F.2d 284 ( 1971 )

IRVING R. KAUFMAN, Circuit Judge:

This interlocutory appeal reaches us in an awkward procedural posture. On March 13, 1970, Judge Henderson dismissed plaintiffs’ omnibus civil rights action (brought under 42 U.S.C. §§ 1981-1983, 1986, 1988-1990) as to three of many defendants for failure to state an actionable claim, F.R.Civ.P. 12(b) (6). The initial question is whether the order is appealable because it is undoubtedly not a final order, 28 U.S.C. § 1291, or whether it is maintainable nonetheless pursuant to 28 U.S.C. § 1292(a) (1) as an interlocutory order “refusing” an injunction. Since we are of the view that the latter statute applies we reach the merits of the appeal and hold that the partial dismissal was improper.

I.

That the order of dismissal was not a final one is conclusively determined by reference to F.R.Civ.P. 54(b). Plaintiffs include numerous individuals who claim that defendants have violated rights guaranteed to them by the Constitution, as well as nine civic and other private organizations.¹ Suing individually and as representatives of a rather amorphous class of “others similarly situated,”² they seek monetary damages and a variety of equitable relief, including some quite drastic remedies, as will appear. The three defendants as to whom the complaint has been dismissed are Frank A. Sedita, the Mayor and Chief Executive of the City of Buffalo, New York; the Commissioner of the Buffalo Police Department, Frank Felicetta; and the Department of Human Relations of Buffalo. Plaintiffs here appeal from the dismissal as to Mayor Sedita and Commissioner Felicetta. In addition, the complaint joins as defendants various members of the Buffalo Police Department, some named and others anonymous, who have allegedly engaged in “a systematic pattern of conduct resulting in numerous, separate and distinct violations of the rights, privileges, and immunities” of plaintiffs and the class they seek to represent. Appellees Sedita and Felicetta are said by plaintiffs to “have condoned or encouraged,” or to have “directed” or “permitted” such conduct. Also (and alternatively) the Mayor and Police Commissioner are charged with having so “lost control” over some of the Buffalo police “as to make effective law enforcement impossible” and also with having failed to respond in any manner to “numerous specific complaints” by plaintiffs and others of police conduct in violation of the federal Constitution, New York law, and Police Department Regulations.

The dismissal as to appellees of course did not affect the continuing vitality of the action against the other defendants, the individual police officers. Because the district court did not direct the entry of a final judgment against appellees or determine that there was “no just reason for delay” prior to entering a final order, his order granting defendants’ Rule 12(b) (6) motion is not appealable under 28 U.S.C. § 1291 or Rule 54(b). Nor did the district court accompany its order with a statement as to the desirability of an interlocutory appeal required if plaintiffs were to attempt to proceed under 28 U.S.C. § 1292 (b).

Plaintiffs’ complaint, however, included several prayers for permanent injunctive relief against all defendants. Moreover, on March 3, 1970, plaintiffs added a motion for a preliminary injunction to restrain defendants pendente lite from committing a formidable list of specific kinds of abusive police practices. By granting the motion of the Mayor, the Police Commissioner and the Department of Human Relations, to dismiss,³ the district court effectively denied at the same time plaintiffs’ motion for a preliminary injunction as against those defendants.⁴ The resultant denial of an injunction is appealable under 28 U.S.C. § 1292(a) (1). The reasoning and decision in General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1932)⁵ is persuasive and, in this context, is also authority that would be difficult to ignore:

But by their motion to dismiss, plaintiffs themselves brought on for hearing the very question that, among others, would have been presented to the court upon formal application for an interlocutory injunction. That is, whether the allegations of the answer are sufficient to constitute a cause of action for an injunction. And the court necessarily decided that upon the facts alleged in the counterclaim defendants were not entitled to an injunction. It cannot be said * * * that the dismissal did not deny to defendants the protection of the injunction prayed in their answer. Id. at 433, 53 S.Ct. at 203.

Judge Henderson’s dismissal for failure to state a claim was not a mere practice order “controlling the sequence in which portions of the case would be tried,” Spangler v. United States, 415 F.2d 1242, 1248 (9th Cir. 1969),⁶ or simply consigning plaintiffs’ claim against appellees to a separate action as an exercise of the court’s control over the scope of the litigation. See Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829 (2d Cir. 1963) (Friendly, J., dissenting), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). Rather, the district court’s determination that plaintiffs were entitled to no relief under federal law, including preliminary relief, was as decisive to plaintiffs as would have been a refusal to grant a preliminary injunction on the grounds that plaintiffs failed to demonstrate either likelihood of ultimate success or irreparable injury.

Judge Anderson dissents from this portion of our holding on the premise that the dismissal of the action against the Mayor, the Chief of Police, and the Department of Human Relations did not “affect * * * the quality of the relief prayed for by the plaintiffs.” Our response to this is that we need not decide that most dismissals as against some defendants in suits seeking injunctive relief are appealable. It is sufficient to say that our jurisdiction here is clearly established under the second of Judge Anderson’s own proposed tests. The dismissal did not merely limit the number of defendants against which any injunctive relief might ultimately run. In Judge Anderson’s words, it resulted in “contracting the scope of the injunctive relief originally sought.” It is apparent that the gist of plaintiffs’ claim was the systematic and knowledgeable failure of responsible authorities to take any measures to correct a pattern of abusive police practices. In order to establish that there was in fact a pattern of police misbehavior, plaintiffs seek to prove a number of separate instances of misconduct. So far as the relief sought against the appellees before us, the claims against the individual officers are only exemplary. Thus, even if injunctive relief were eventually awarded against each of the named individual police defendants, it would not at all satisfy plaintiffs’ claim for relief from systematic misbehavior at levels of authority higher than that of the patrolman on the beat. Indeed, for an injunction only against individual policemen to substitute adequately for the relief plaintiffs seek against the present appellees, it would have to run against every officer in the Buffalo Police Department. Thus, the dismissal against the Mayor, Chief of Police, and Department of Human Relations, operated as a refusal of a distinct and separate claim for an injunction, for which any other relief that might emerge from the case could never adequately substitute.

Finally, Judge Anderson is concerned that disposition of the present appeal may affect the rights of the other defendants in the case, without affording them an opportunity to be heard. But the disposition of this appeal will have no greater impact on the rights of the individual police defendants than if plaintiffs had adopted a different strategy of litigation and chosen not to join their claims against the individual policemen with their separate claim against the present appellees. Courts inevitably' announce legal principles that affect people unrepresented in the adjudications from which the principles emerge. And specifically, the other defendants in this action will not be affected in the least by our disposition of the question whether plaintiffs’ complaint stated a cause of action against the present appellees.

II.

Hence we reach the merits of the dismissal, and we find ourselves in partial disagreement with Judge Henderson. The venerable standard for judging the propriety of a dismissal on the pleadings under the Federal Rules is not contested here. Accepting the allegations in the complaint as true, as we must on a Rule 12(b) (6) motion, Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir. 1970), the complaint may not be dismissed “unless it appears ‘to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.’ ” Holmes v. New York City Housing Authority, 398 F.2d 262, 265 (2d Cir. 1968). Such elementary formulas show their worth in the unusual case and this particular standard is especially useful here, where plaintiffs have combined traditional pleas for injunctive relief with a more exotic plea that may tend to distort one’s perception of the complaint.

As indicated above, the essence of the plaintiffs’ theory as it is developed in the complaint is that certain members of the Buffalo Police Department have engaged in “a systematic pattern of conduct” over a period of many years which has resulted in plaintiffs being subjected under color of state law to the deprivation of constitutional rights. Plaintiffs by no means confine themselves to such generalities, however. After alleging broadly that defendants have engaged in illegal “acts of violence, intimidation, humiliation, and other * * misconduct” plaintiffs enumerate fourteen separate varieties of police abuses to which they have allegedly been subjected.⁷ There follows what might be described as a bill of particulars reciting in seventeen lettered paragraphs specific instances of the kinds of abuses complained of.

It is in this context of specific allegations that the more expansive and diffuse allegations directed against appellees Sedita and Felicetta occur.

Although we need not now decide the question we have little doubt that upon these allegations plaintiffs will not succeed in establishing a right to the most drastic remedy they request, namely that appellees be required to adopt a complaint mechanism approved by the district court for processing and remedying police misconduct. If that mechanism should fail, plaintiffs propose a still more extraordinary measure: that the district court appoint a special master as receiver for the Police Department to establish “a fair and equitable complaint machinery to investigate and provide redress for complaints of police misconduct or police violence.”

The question of the propriety of remedies prayed for by plaintiffs, however, is not the issue on this appeal. The question here is whether plaintiffs might conceivably have some remedy, whether or not suggested by them, and on the face of this complaint we cannot say “to a certainty” that they will not be able to make out a case against Felicetta and Sedita calling for at least part of the equitable relief they request, or some other appropriate relief. Of course, that is based on the assumption that the plaintiffs are proper representatives of the “class” and that this extraordinary and diffuse “class” is appropriate, questions we are not called upon to decide on this appeal.⁸

No cases have been referred to us, nor has our own research disclosed any, involving a claim similar to appellants’, of systematic or purposeful police abuse distributed over many years and apparently not directed at a particular identifiable class of persons. Thus, plaintiffs rely on such cases as Schnell v. City of Chicago, 407 F.2d 1084 (7th Cir. 1969), for the proposition that “[ujnder section 1983, equitable relief is appropriate in a situation where governmental officials have notice of the unconstitutional conduct of their subordinates and fail to prevent a recurrence of such misconduct.” Id. at 1086. However in that case plaintiffs represented a class of news photographers whose right to gather and report news had been massively interfered with during the brief and violent period when the Democratic Party convened in Chicago in the summer of 1968. A similar case is the well known “Venery Raids” case, Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966), where police officers searching for suspects in the shooting of a fellow policeman searched some 300 homes in a Negro area of Baltimore both day and night over the course of nineteen days and with no pretense of justification, an episode which the court described as “a series of the most flagrant invasions of privacy ever to come under the scrutiny of a federal court,” id. at 201. See also, Wheeler v. Goodman, 298 F.Supp. 935 (W.D.N.C.1969); Cottonreader v. Johnson, 252 F.Supp. 492 (M.D.Ala.1966). But neither does this complaint fall in that category of cases, where equitable relief was held inappropriate on the basis of a single incident of misconduct combined with a general allegation that recurrence could be expected. E. g., Belknap v. Leary, 427 F.2d 496 (2d Cir. 1970); Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970).

Despite the diffuseness and broadside nature of their claims, we believe that plaintiffs’ allegations in the complaint are sufficient to satisfy the generous pleading requirements of the Federal Rules. Deliberate, purposeful activity resulting in widespread police abuses and perhaps rising to the level of de facto policy were held to be an appropriate occasion for injunctive relief in such cases as Lankford and Sehnell. Whether plaintiffs can establish this pattern of police abuse, and, if so, what relief is justified, must be left initially to the district court. Moreover, as we have indicated the propriety of the class suit remains to be determined. But we believe Judge Henderson should not have dismissed the suit as against appellees Sedita and Felicetta simply because some of the relief sought seemed far-fetched.

Reversed.

1 . The class is described in the fifth paragraph of the complaint as “all of those persons who reside in, are employed in, or are entitled to enjoy the benefits, services and facilities of the City of Buffalo.”

2 . The complaint alleges that these organizations “are concerned and effected” by the alleged police abuses and that their membership includes “members of the class which plaintiffs seek to represent.”

3 . On February 24, appellees moved to dismiss the class action, strike certain matter from the complaint, and to sever the causes of action, as well as to dismiss under Rule 12(h), both for failure to state a claim and for lack of jurisdiction over the subject matter.

4 . Both appellants’ and appellees’ motions were returnable March 9. On that date, during argument before Judge Henderson, plaintiffs volunteered to postpone the argument on the motion for a preliminary injunction but the offer was mooted when the court from the bench granted appellees’ motion to dismiss.

5 . In Marvel, a patent infringement action, the district court had dismissed, for lack of jurisdiction, a counterclaim asserted by defendant which included a prayer for an injunction and accounting. The Court held that the dismissal was appealable under old 28 U.S.C. § 227, predecessor the present Section 1292(a) (1).

6 . Spangler was a class action by individual students seeking to desegregate three Pasadena, California, public high schools. The motion of the United States to intervene was granted and the Government enlarged the action by requesting an injunction to desegregate the entire Pasadena public school system. The district court granted defendants’ motion to strike the claims of the complaint with respect to all but the three high schools originally in the suit.

7 . The sprawling nature of this part of the complaint is conveyed by plaintiffs’ motion for a preliminary injunction, which requested that defendants be restrained “from beating, intimidation, humiliating [sic] members of plaintiffs’ class in the course of affecting arrest or while in custody, from denying members of plaintiffs’ class the right to make telephone calls to counsel or families upon being arrested, from indiscriminately arresting members of plaintiffs’ class without reason or probable cause to believe that a crime has been committed, from making false charges or “cover charges” against members of plaintiffs’ class, from arresting members of plaintiffs’ class from [sic] attempting to exercise their rights under the Constitution of the United States, from referring to members of plaintiffs’ class by derogatory, obscene, or racial epithets, from refusing to give members of plaintiffs’ class proper protection from criminal acts perpetrated against them by various persons, including members of the Buffalo Police Department. * * * ”

8 . The parties to this appeal have directed our attention to a subsequent order by Judge Henderson entered January 22, 1970, apparently dismissing the complaint on the ground that it is not maintainable as a class action. During oral argument, this panel requested counsel for all parties to submit supplementary briefs discussing the question whether this interlocutory appeal was properly before us, an issue we have resolved in part I of this opinion. In response to the panel’s request, counsel for plaintiffs-appellants have informed the court that they do not intend to appeal Judge Henderson’s dismissal of January 22. We intimate no view on the question whether the action against these appellees is maintainable as a class action.