GREEN MILLER, JR., APPELLANT
v.
MARION BARRY, MAYOR, ET AL.

D.C. Cir. | 1983-01-28
No. 82-1850
Before TAMM, WALD and SCALIA, Circuit Judges.
698 F.2d 1259 United States Court of Appeals for the District of Columbia (1983) Positive Treatment
Cited by 4 cases

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Holding

A municipality cannot be held liable under 42 U.S.C. § 1983 or a Bivens action based solely on respondeat superior; the plaintiff must allege that an official policy caused the constitutional violation.


Facts & Procedural History

Plaintiff sued the District of Columbia and its Mayor, alleging a police officer acted within the scope of employment and pursuant to defendant corpor…

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Opinion of the Court
PER CURIAM:

action. See Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Tarpley v. Greene, 684 F. 2d 1 (D.C.Cir.1982).

PER CURIAM:

We note that the complaint in the instant case contains an allegation that the police officer “was acting fully within the scope of his employment and pursuant to the policies of defendant corporation.”

In Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court held that although respondeat superior was not available as a basis for 42 U.S.C. § 1983 liability on the part of local government bodies, 436 U.S. at 664 n. 7, 98 S.Ct. at 2022 n. 7, local government units can be sued under 42 U.S.C. § 1983 where the alleged unconstitutional action “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.” 436 U.S. at 690, 98 S.Ct. at 2035.

The Supreme Court recently had occasion to review a complaint for the sufficiency of its allegations in this regard. In Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), the pro se plaintiff’s only reference to governmental policies was the “bald allegation that [Defendant] had injured him while acting pursuant to administrative ‘rules and procedures for ... handling criminal appeals’ and that [Defendant’s] employers were therefore responsible for [Defendant’s] actions.” 454 U.S. at 326, 102 S.Ct. at 453. The Court concluded that “even in light of the sympa thetic pleading requirements applicable to pro se petitioners,” id., this allegation did not describe a constitutional tort actionable under § 1983, since “official policy must be the ‘moving force of the constitutional violation’ in order to establish liability of a governmental body under § 1983.” Id., citing Monell, supra 436 U.S. at 694, 98 S.Ct. at 2037.

In the instant case, petitioner has made a similarly conclusory allegation. The mere assertion that the police officer “was acting fully within the scope of his employment and pursuant to the policies of defendant ...” is not specific enough to withstand dismissal. Petitioner pointed to no rule, procedure or policy of the District which would require or even permit the alleged unconstitutional actions. In other words, he failed to allege that his claimed constitutional harm was caused by a “policy statement, ordinance, regulation, or decision promulgated or adopted by [defendants].” Monell, supra at 690, 98 S.Ct. at 2035. Absent such allegation the complaint must fail.

TAMM, Circuit Judge, did not participate in the foregoing decision.

. Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).


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