The opinion of the court was delivered by: Grady, District Judge.
This is a race discrimination action under 42 U.S.C. § 1981, 1982,
1983 and 1985(3). Plaintiff Wade was a horse-care worker in the Town of
Cicero, where he and his family lived. Plaintiffs, who are black, allege
that defendants, on account of plaintiffs' race, excluded the three
school-aged Wade children from the Cicero public schools. Plaintiffs
further allege that as a result of this conduct, .Wade was forced to
leave his employment, he and his children were forced to leave their
residence, and the three school-aged children were denied the right to
attend public school in Cicero. Defendants have moved to strike
plaintiffs' prayer for punitive damages under 42 U.S.C. § 1981, 1982
and 1983.*fn1 We grant that motion.
The question we address is whether this case falls within an arguable
exception to the rule in City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981), that punitive
damages are not available in a § 1983 action against a municipality.
In Fact Concerts, one of the Court's reasons for its holding was that
it would be unfair to assess all taxpayers for a punitive damage award
when the punishment actually would be aimed at the bad faith conduct of
officials and agents of the municipality. However, in footnote 29, the
Court may have left open an exception:
It is perhaps possible to imagine an extreme
situation where the taxpayers are directly
responsible for perpetrating an outrageous abuse of
constitutional rights. Nothing of that kind is
presented by this case. Moreover, such an occurrence
is sufficiently unlikely that we need not anticipate
453 U.S. at 267 n. 29, 101 S.Ct. at 2760 n. 29.
We have found only two published cases which discuss this possible
exception. In both cases the courts assumed that footnote 29 created an
exception but held that the facts of the case did not warrant applying
the exception. In Heritage Homes of Attieboro, Inc. v. Seekonk Water
District, 670 F.2d 1 (1st Cir.), cert. denied, 457 U.S. 1120, 102 S.Ct.
2934, 73 L.Ed.2d 1333 (as to petition of Heritage Homes), cert. denied,
— U.S. — 103 S.Ct. 67, 74 L.Ed.2d 67 (1982) (as to petition
of Seekopk Water District), 80 to 85 residents of a water district
attended a meeting at which blatantly racial discussions took place.
Following the discussions, the residents voted 66 to 8 to exclude from
the district a real estate development which was willing to sell homes to
black people. The court held that since there were approximately 13,500
residents in the water district at the time of the vote, punitive damages
should not be assessed against the district based on the actions of 66
residents. The court would have required "widespread knowledgeable
participation by taxpayers. . . ." 670 F.2d at 2. Absent such
participation, it would be unfair for the "actions of a small claque of
voters [to] burden several thousand non-participants, many of whom
presumably were unaware of the entire controversy." Id.
In Webster v. City of Houston, 689 F.2d 1220 (5th Cir. 1982), police
officers, pursuant to a widely-accepted municipal custom, had planted a
gun on the victim of a police shooting to make it appear that the
shooting was in self-defense. Unlike the Heritage Homes court, the
Webser court did not discuss whether the police action could be
attributable directly to the Houston taxpayers because it found that tlw
action did not "rise to the level of outrageous conduct" contemplated by
footnote 29. 689 F.2d at 1229.*fn2
We need not decide here whether footnote 29 creates an exceptiop to
municipal immunity from punitive damages because the facts as alleged in
plaintiffs' complaint, as supplemented by plaintiffs' response
memorandum,*fn3 would not bring this case within the exception. While we
do not wish to denigrate the seriousness of the constitutional violation
alleged by plaintiff, this case is not one "where the taxpayers are
directly responsible" for perpetrating the constitutional violation. Fact
Concerts at 267 n. 29, 101 S.Ct. at 2764 n. 29.
Plaintiffs argue that the "townspeople" of Cicero have promoted a
climate of racial hatred such that the municipal officials, in taking the
action challenged here, were merely ratifying the egregiously
discriminatory views of Cicero's citizens. However, this is not an
allegation that "the taxpayers are directly responsible" for the
challenged actions; on the contrary, plaintiffs appear to be conceding
that the "townspeople" are only indirectly responsible. Aside from these
general allegations against the "townspeople," plaintiffs have pointed to
a few isolated incidents of racial hatred by a relatively small number of
individuals. Again, without meaning to denigrate the seriousness of these
allegations, we do not believe that they impute direct responsibility to
all of the taxpayers of Cicero. See Heritage Homes, supra. If footnote 29
creates an exception at all, the exception would appear to be applicable
more in the case, say, of a referendum in which the voters overwhelmingly
mandated an unconstitutional action. See Webster, supra, at 1231 n. 1
(Goldberg, J., specially concurring).
Accordingly, we grant the motion to strike plaintiffs' prayer for
punitive damages under ...