*1 al., et Plaintiffs- Mildred HARKLESS Appellants,
The SWEENY INDEPENDENT SCHOOL al., DISTRICT et Defendants- Appellees.
No. 28188. Appeals,
United States Fifth Circuit.
June Jones, Judge, Circuit dissented opinion.
filed Greenberg, Harper, K.
Conrad
Jack
III,
Nabrit,
James M.
Bennett
William
n Turner,
Haywood Burns,
W.
York
New
*2
year
Houston, Tex.,
faculty
1966-
the school
Berry,
for
its
H.
City, Weldon
Negro
process,
the 25
67.
In the
plaintiffs-appellants.
for
system
offered
in the
were not
teachers
Houston, Tex.,
Cook,
for de-
Grant
re-employment. This
followed.
suit
fendants-appellees.
originally
complaint
named each
The
BELL,
JONES,
and GOD-
Before
of the
of the
of trustees
member
board
Judges.
BOLD, Circuit
superintendent
in
and the
in his
district
representative
ca
Judge:
dividual as well as his
BELL, Circuit
objection,
pacity.
Over
brought
appeal
an action
involves
granted
demand of defendants
.court
alleging
Negro
by
teachers
ten
prayer
jury trial as to the
for back
for
to renew
district
the school
failure
pay
exercised its discretion
the school
teaching
when
contracts
their
F.R.Civ.P.,
39(b),
order
to also
Rule
desegregated
them
system
denied
jury
issues.2
trial on all other
rights
by
Fourteenth
secured
unwillingness
expressed
of the
Because
They
reinstatement
seek
Amendment.
by
dire examination
two ve
at
voir
premised
pay.
Jurisdiction
and back
monetary
to
niremen
assess
1343(3) and 42
U.S.C.
on
U.S.C.A.
individuals,
the defendants
as
A.
1983.1
complaint
to
dismissed the
as
jury
after
full
capac
individual
defendants
trial, granted
motion
the defendants’
proceeded
ities. Thus the suit
upon
failure
state a
dismiss
superintendent
and the
as
the trustees
granted. This was
could
which relief
be
only
representative
defendants
in their
Pape,
applying Monroe v.
the result
capacities.
proceeded
suit
also
L.
district.
the school
defendants
hold
Ed.2d
district,
—the
school
During the
trial
after the defend-
superintendent
and the
trustees
capacities
ants in
had
individual
capacities—
or
official
dismissed,
applicability
Mon-
Being
be sued under
1983.
could not
supra,
roe
contrary view,
reverse.
of a
we
of action
whether
was stated
differently,
was drawn into
complete
issue. Put
plan
adopting a
After
would a suit
lie
spring
desegregation
defendants
being “persons”
within
Sweeny Independent
School
jurisdictional
42 U.S.C.A.
1983? The
the number
was able to reduce
District
1.
42 U.S.C.A. §
28 U.S.C.A.
person:
zen of the United
inal
statute,
or
jects,
equal rights
or
thorized
der color of
dinance,
any right,
States
“(3)
“The
“Every
[*]
usage,
the Constitution
jurisdiction
or
any
To
by
causes
ordinance,
regulation,
person
Act of
privilege
[*]
redress
law be commenced
jurisdiction
of citizens or of
any
1343(3), provides:
courts
State or
who,
State
Congress providing
Staes or other
[*]
provides:
or
of the United States
any
custom or
regulation,
subjected, any
immunity
law, statute,
shall have
deprivation,
civil action
of the
Territory,
[*]
color of
all
usage,
custom,
persons
secured
by
United
person
[*]
orig-
sub-
citi-
any
any
un-
au-
or-
2.
Rule
Har
or other
immunities
have been made of
trict court on the
pendent
discretion
failure
deprivation
and
jured
The memorandum
“Issues
provided in Rule
action in
laws,
court;
in an action at
(b) provides:
of a
proper proceeding
not demanded for
kle
upon motion
shall
jurisdiction
secured
which
party
632.
but, notwithstanding
any
any
be liable
District, S.D.Tex., 1968,
ss
or
right,
such
to demand
jury question
rights, privileges,
by
38 shall
opinion of
law,
all
may
the Constitution
thereof
the court in its
issues.”
Sweeny
demand
for redress.”
trial
order a trial
be tried
party
by jury
equity,
might
Inde
dis
in-
reported.
by
or
statute,
supra,
1343(3),
opin
said, advisory
to accommo-
Court has
law,
prohibited by
date suits
authorized
otherwise
ions are
Art. III
here under
moved
Denno,
Defendants
Constitution. Stovall
293, 301,
to dismiss on this basis
the motion 388
limitation,
carried with the case.
Ed.2d 1199.
Under such
would
was submitted to
*3
restricted
the facts of
the case
interrogatories.
special
re-
proscribing
against municipality
a suit
a
finding
a
turned
verdict
that
the deci-
respondeat superi-
under the doctrine of
plaintiffs
sion not
to rehire the
was
damages.
or for
Here the school dis
regard
race,
made without
trict,
law,
under Texas
of
is
the nature
good faith,
that
defendants acted
municipality,
Dallas,
City
of a
Love v.
of
objectively comparing
qualifications
;
120
(1931)
Tex.
40 S.W.2d
26
However,
of all
teachers.
Independent
Lewis v.
of
School District
litiga-
participation
found that
in this
City
Austin,
of
139
161
Tex.
S.W.2d
tion
a factor in
was
not to
decision
(1942),
452
but the relief
re-employment
offer
to seven of the
equitable only
and back
plaintiffs.
—reinstatement
pay.
Hampton Training
Smith v.
juncture,
At this
Nurses, Cir., 1966,
360 F.2d
granted the motion to dismiss. The 581, fn. 8.
plaintiffs
court determined that
had
Monroe
was
action
failed to state a cause of action under §
damages
recover
for the misconduct of
1983, relying
Pape, supra.
on Monroe v.
police
recovery
officers. The
Sweeny Independent
See Harkless
under
the officers
§
Sweeny, Texas,
School District of
S.D.
employer,
City
and also
Tex., 1969,
794. This issue
Chicago,
respondeat superior.
of
under
will
first
considered.
we con
Because
Court held that a
of
decided,
erroneously
clude that
it was
action could be maintained under
§
necessary, secondarily,
it will also be
police
but
officers
concluded
resolve the additional issue
whether
municipal corporations
that
were not
granting
court erred in
a
trial.
of
within the
ambit
1983. Thus
§
ratio decidendi of the decision is that no
I.
against municipali
cause
ty
action lies
a
of
controversy
The nub of this
is the
under
§
holding
breadth of the
respondeat superior
doctrine
for the
Pape.
holding
We must follow that
police
conduct
itsof
officers.
jurisdictional
its outer limits. The
basis
opinion,
In footnote 50 to
1343(3).
for this suit
U.S.C.A. §
court stated with reference to its hold-
provides
jurisdiction
It
federal
of civil
ing
municipality
that a
included
stated,
authorized
actions
law. As
1983:
§
source
authorization claimed
appellants is 42 U.S.C.A.
1983.3 The
“This
has been
view the low-
defendants contest this authorization on
City
er
Hialeah,
courts.
federal
Charlton v.
Pape.
the basis of Monroe v.
Cir.,
421, 423;
Ordinarily,
system
Jacksonville, Cir.,
City
under our
Hewitt v.
law,
higher
423, 424;
a
City
decision
court is
F.2d
Cobb
binding
Malden,
precedent
703;
as a
Cir.,
the extent of
Agnew
the ratio
City Compton, Cir.,
decidendi of the case. As
importance
presence
3. The
of this issue is
seen
of a federal
fact, according
plain-
jurisdictional
to counsel for
amount under 28 U.S.
tiffs,
only
1343(3),
three of
can
C.A.
1331. Unlike
federal
jurisdictional
question jurisdiction
claim the
amount which
1331 need
jurisdiction
be involved to
must
rest
not be otherwise authorized.
officials,
pality has been
Mansfield,
ta,
L.Ed.
tions
Ed.
F.2d
ble
See, e.
relief has
776. The
of 42 U.S.C.
In a few
g.,
Douglas
Holmes v.
defendant
named,
cases
Cuiksa
1983 were
sought,
City
in which
along
[877]
dealt
where
Jeannette;
of Atlan
with
City
munici
alleged.
equita
viola
703-
city
may
lief
spondeat superior.
of a
municipal
ipalities
purposes
cases
the court was
footnote
be drawn from
damage
expressly
relief cases.
corporation
cited and
“persons” under
dictum to
considered in
expanding
We
those cases that
that no inference
for the
eliminate
do not
relief,
person
it under
its
purposes
1983 for
perceive
munic-
ques-
cited
re-
in those
opinion
raised
was not
our
Moreover,
there
are other
reasons
*4
cases,
parties
or
either
interpretation
which buttress
our
a munici
we hold that
Since
Court.
noting
one,
For
it is
footnote 50.
worth
corporation
‘person’ with
not a
pal
Supreme
has
not followed
that
1983,
meaning
no inference
in the
§
interpretation
longer
contrary
any
be
can
question
4
that
footnote.
It
is true
cases.”
drawn from those
expressly
a
not been
considered but
has
footnote 50
The
court read
against
ruling
a
rendered
has been
meaning
municipalities
not
in
no
school
1983 case with
“persons”
1983
being
any
limita-
mention
made of
such
any
equity
purpose
in
law or
—in
equitable
tion as to
relief.
on
v.
and based its decision
Monroe
Pape
posture.
in
No
lie
suit would
this
have reference
the case
We
against municipality
under
1983 un-
Community
Tinker v.
School
Des Moines
der
circumstances.
District,
1969,
503, 89
393 U.S.
S.Ct.
733,
injunctive
L.Ed.2d 731. There
21
position of the
The
district court was
expul-
relief was
because of the
Pape prohibited a
two-fold: Monroe v.
sion
students.
school district
against
suit
the school district under §
along
was a defendant
with its directors
1983;
legal
perceiving no
distinction be-
injunc-
and certain school
officials.
district,
tween the
and its trust-
school
only against
relief
tive
was
acting
superintendent
and
ees
directors and officials.
Jurisdiction was
capacities,
it
followed
based
42 U.S.C.A.
1983 and 28 U.
that no suit would lie
the trust-
1343(3).
S.C.A.
The court decided
superintendent.
It
re-
ees and
plaintiffs.
case in
favor
There was
that,
point
pro-
at
membered
this
question
no
1983
reference to
ceedings, plaintiffs
had dismissed the
might apply to the school district.
superintendent
as indi-
trustees and
viduals.
Tinker,
In
Court cited
Independent
Ferrell
v. Dallas
School
broadly.
do
read
We
footnote 50 so
District,
Cir., 1968,
697,
5
392 F.2d
We read
context of the
it within the
seeking equitable
relief
holding of
court and
the text
district,
superin-
Texas school
appended.
which it
We think the
principal.
tendent
saying
court was
in the footnote that
merits
the case were considered there
damages against municipali-
the issue of
just as
in
was
Tinker
no
superior
respondeat
ties
presented
question
raised in the
as to the
re-
city
50, Douglas
being
In the cases cited in footnote
as to
officials
includ-
City
“persons”
City
Jeannette,
v.
ed
v.
and Holmes
term
1983 was
Atlanta,
were the mu-
considered Monroe v.
defendants
nicipalities
city
No
and also
officials.
being
County
Monroe v.
case. Griffin v.
barred
of action
County, 1964,
Board of Prince
Pape.
Edward
218,
1226,
U.S.
S.Ct.
12 L.Ed.2d
addition,
has
In
Seventh Circuit
(county
supervisors),
board of
Pape is not to
held that Monroe v.
twice
progeny
see other cases which are the
prohibit
mu-
applied to
suits
Education, 1954,
Brown v. Board of
only.
nicipalities
483,
686,
873,
U.S.
98 L.Ed.
Ridge,
City
v.
of Park
Adams
County
such as Alexander v. Holmes
1961,
City
v.
Schnell
Education, 1969,
19,
Board of
396 U.S.
Cir., 1969,
Chicago, 7
F.2d 1084.
29,
19,
90 S.Ct.
L.Ed.2d
Carter
dictum,
taken
in a
Board,
West Feliciana Parish School
City of
view. United States v.
same
290,
396 U.S.
L.
Cir., 1963,
Jackson, 5
10-11.
Yeager,
See
Ed.2d 477.
also
Rinaldi
eq
are lower
court decisions
There
U.S.
contrary.
actions to the
Deane
uitable
(state prison warden);
Ed.2d 577
Davis
Club,
Country
of Knox
Hill
Mann, 1964,
377 U.S.
84 S.Ct.
Cir., 1967,
ville,
Patton
(state