The opinion of the court was delivered by: Will, District Judge.
This action arises under the Civil Rights Act, 42 U.S.C.A.
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory, subjects or causes to be
subjected, any citizen of the United States or
other person within the jurisdiction thereof to
the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws,
shall be liable to the party injured in an action
at law, suit in equity, or other proper
proceeding for redress."
Jurisdiction is based on 28 U.S.C.A. § 1343:
"The district courts shall have original
jurisdiction of any civil action authorized by
law to be commenced by any person:
"(3) To redress the deprivation, under color of
any State law, statute, ordinance, regulation,
custom or usage, of any right, privilege or
immunity secured by the Constitution of the
United States or by any Act of Congress providing
for equal rights of citizens or of all persons
within the jurisdiction of the United
States; * * *."
The Court has before it motions to dismiss by the two
individual defendants (the Village, a municipal corporation,
has been dismissed by stipulation). For purposes of deciding
such motions all of plaintiff's well-pleaded allegations must
be taken as true. Central Ice Cream Co. v. Golden Rod Ice
Cream Co., 7 Cir. 1958, 257 F.2d 417, 418.
Plaintiff alleges that defendant Patrick J. Muldowney,
Police Magistrate of the Village, issued a warrant charging
Citizens Utility Co., plaintiff's employer, with violation of
a municipal ordinance, and directed defendant John O'Connell,
a police sergeant for the Village, to arrest plaintiff
although plaintiff was not named in the warrant and was not
charged with any offense. Allegedly, O'Connell arrested
plaintiff, required him to accompany O'Connell to the village
hall and to remain there until Muldowney returned, and denied
to plaintiff an opportunity to consult with counsel. Plaintiff
further alleges that when Muldowney arrived, although knowing
that plaintiff had been arrested without cause (since he,
Muldowney, had directed that it be done), he used abusive
language toward plaintiff, denied him an opportunity to
consult with counsel, and compelled him to post bond to obtain
his release. For these asserted violations of 14th Amendment
rights, and the alleged accompanying public disgrace and
humiliation, plaintiff seeks $100,000 damages from each
defendant. In addition, plaintiff contends that Muldowney
acted maliciously and with an intent to injure, for which
plaintiff seeks $100,000 exemplary and punitive damages.
Defendants' motions to dismiss are based on several grounds:
(1) the relevant arrest warrant is not attached to the
complaint, (2) there is no federal jurisdiction because
plaintiff has adequate remedies available in the State courts,
(3) both defendants are immune from civil liability for acts
done in their official capacities, and (4) those allegations
in the complaint which are not conclusory do not state a claim
for which relief may be granted.
The decision in Monroe v. Pape, 1961, 365 U.S. 167, 81 S.Ct.
473, 5 L.Ed.2d 492, establishes conclusively that federal
court jurisdiction exists in cases arising under the Civil
Rights Act regardless of whether or not State court remedies
also exist. 365 U.S. at 183, 81 S.Ct. 473. Consequently,
defendants' second ground is untenable.
The same decision also holds that a police officer is not
immune from civil liability for acts violating
constitutionally protected rights merely because such acts
occurred while the officer was performing his official duties.
Thus defendant O'Connell is not immune from civil liability.
Defendant Muldowney asserts that the common law doctrine of
judicial immunity precludes a finding of civil liability as to
him, and in support of his assertion he cites Stift v. Lynch,
7 Cir. 1959, 267 F.2d 237; Skinner v. Nehrt, 7 Cir. 1957,
242 F.2d 573; and Peckham v. Scanlon, 7 Cir. 1957, 241 F.2d 761.
However, none of these decisions is controlling here. Each
says that judges "are immune from civil liability for acts
done by them in the exercise of their judicial functions." 267
F.2d at 239; see also 242 F.2d at 575 (alternative holding)
and 241 F.2d at 763 (dictum). In each case, the defendant was
accused of improper judicial acts in litigation in which he
had jurisdiction over the parties and subject matter.
A judge must be free from concern that civil liability will
be sought by an unsuccessful litigant who ascribes his
misfortune to judicial malice and corruption. Bradley v.
Fisher, 1871, 80 U.S. (13 Wall.) 335, 348, 20 L.Ed. 646.
Similarly, judicial independence requires immunity from civil
liability resulting from the multitude of procedural decisions
which must' necessarily be rendered in each case heard (cf. 68
Harv.L.Rev. 1229, 1237 (1955)), even though a particular
decision is erroneous (cf. Ryan v. Scoggin, 10 Cir. 1957,
245 F.2d 54, 58 (dictum)), or even malicious (cf. Cuiksa v. City
of Mansfield, 6 Cir. 1957, 250 F.2d 700, 702 (dictum), cert.
denied, 1958, 356 U.S. 937, 78 S.Ct. 779, 2 L.Ed.2d 813).
However, not every action by a judge is in exercise of his
judicial function. For example, it is not a judicial function
for a judge to commit an intentional tort even though the tort
occurs in the courthouse. Cf. Vickrey v. Dunivan, 1955,
59 N.M. 90, 279 P.2d 853. And it is not a judicial function in
this State for a magistrate to direct a police officer to
arrest and to take into custody a person not named in a
warrant (except a person who commits or attempts to commit a
criminal offense in the magistrate's ...