(D.C. Civil Action No. 853-67). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Maris and Aldisert, Circuit Judges, and Gorbey, District Judge.
The question presented is whether appellant was prejudiced by error during the course of the trial of an action brought by him under the Civil Rights Act, 42 U.S.C. § 1983, against certain police officers and the City of Newark, "for a brutal assault and battery inflicted upon him by the Newark police officers DeSimone and Pontrelli, without cause, justification, or provocation." We have concluded that there was no reversible trial error as to the appellant and will affirm the judgment of the district court.
Appellant, a black man, was driving a taxicab in the City of Newark on the evening of July 12, 1967, when he was stopped by police officers DeSimone and Pontrelli for an alleged traffic offense. Following a verbal exchange, the policemen took appellant into custody and brought him to the precinct house. While in custody he sustained injuries. It was the plaintiff's contention that these injuries were caused by an assault and battery committed upon him by the police. The police contended that appellant violently resisted arrest, had to be carried from the police car to the precinct house, and that "while being carried, plaintiff kicked and wiggled and thrashed about so violently that the officers carrying him were caused to fall," and that, in turn, the plaintiff also fell and that the injuries received were due to the fall on the steps of the station house.
Before treating appellant's assignments of error, we address the jurisdictional posture of this appeal. Although federal jurisdiction was based on the general federal question statute, 28 U.S.C. § 1331, and the civil rights jurisdictional statute, 28 U.S.C. § 1343, and although the remedy exclusively relied on by appellant was the Civil Rights Act, 42 U.S.C. § 1983, appellant tried the case as a civil tort action. Indeed, at oral argument on appeal, in response to specific questions from the court, appellant's counsel asserted that the theories of negligence, res ipsa loquitur, and intentional assault and battery, which form the major bases of this appeal, were properly brought as an integral part of the § 1983 remedy. It is, of course, fundamental that the Civil Rights Act permits recovery for only "deprivations of any rights, privileges, or immunities secured by the [federal] Constitution and [federal] laws." We have recently said: "It becomes important to delineate that conduct which is actionable in state courts as a tort, and that which is actionable in federal courts under § 1983. The two rights of action do not always stand in pari materia. Some common law and statutory torts, although actionable in a state forum, do not rise to constitutional dimensions. The converse is equally true. Conduct may be actionable as a deprivation of constitutional rights where no force and violence has been utilized, and there exists no orthodox counterpart of state common law or statutory relief available." Howell v. Cataldi, 464 F.2d 272, 278 (3d Cir. 1972).
Thus, we have previously held "that a tort committed by a state official acting under color of state law is [not], in and of itself, sufficient to show an invasion of a person's right under the Act [§ 1983]." Kent v. Prasse, 385 F.2d 406, 407 (3d Cir. 1967). Similarly, an averment of improper medical treatment was held insufficient to state a cause of action under the Civil Rights Act, Gittlemacker v. Prasse, 428 F.2d 1 (3d Cir. 1970); Fear v. Commonwealth of Pennsylvania, 413 F.2d 88 (3d Cir.), cert. denied, 396 U.S. 935, 90 S. Ct. 278, 24 L. Ed. 2d 234 (1969); as was an averment of inferior medical treatment facilities for treatment of an ear infection, Kontos v. Prasse, 444 F.2d 166 (3d Cir. 1971); as was an averment of being forced to work in prison on a press which was dangerous and unfit and which had previously been condemned, Kent v. Prasse, supra, 385 F.2d at 407; as was an averment of professional malpractice against an attorney, Fletcher v. Hook, 446 F.2d 14, 16 (3d Cir. 1971).
We have no hesitancy in concluding, therefore, that appellant's counsel proceeded under fundamental misapprehensions that § 1983 subsumed these state tort causes of action. Had the case been presented to the jury in this light by the trial judge, there would be no necessity to discuss the points raised on this appeal; we would have simply dismissed the appeal for want of federal jurisdiction of the tort claims, there being no averment of diversity between the parties, and there being no actual diversity of citizenship. Without the benefit of a proper pleading in the complaint, however, the trial court treated the tort claim as an independent state claim appended to the claim based on federal law under § 1983. The trial court obviously exercised discretion under instructions contained in United Mine Workers v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966), that if the state and federal claims derive from a common nucleus of operative fact, and if they "are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues there is power in federal courts to hear the whole."
That there is power to hear a pendent state claim does not mean that its assumption is automatic or that the federal courts should be hospitable to such claims without proper pleadings. It is hornbook law that the jurisdiction of the federal court must appear in the plaintiff's statement of his claim. Joy v. City of St. Louis, 201 U.S. 332, 50 L. Ed. 776, 26 S. Ct. 478 (1906). "It is incumbent upon the plaintiff properly to allege the jurisdictional facts, according to the nature of the case. . . . He must allege in his pleadings the facts essential to show jurisdiction." McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 182, 189, 80 L. Ed. 1135, 56 S. Ct. 780 (1936). See also F.R.Civ.P. 8(a)(1).
Procedural requirements aside, dictates of fundamental fairness require that a defendant have the opportunity to interpose any objection to the annexation of a pendent state claim to a federal question claim. In the case at bar, the defendants did not object to the unpleaded theory of the plaintiff, the reception of evidence thereunder, and the court's charge to the jury. Having received a favorable verdict, defendants do not press this point, and properly so, for they now have the advantage of res judicata on the state claims.
Our analysis of jurisdiction, although not invited by the parties, is a critical prerequisite to a consideration of appellant's contentions, for this threshold determination directs us to the appropriate substantive law in considering claims of negligence, assault and battery, and res ipsa loquitur. Here again, appellant's counsel was in basic error when he advised the court, at oral argument, that federal substantive law, and not state law, would govern these claims. See Erie v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938).*fn1
Additionally, we observe that appellant did not object to the § 1983 charge given by the trial court, and does not press any specific points on this aspect of the charge. The defendants also made no objection and, therefore, the issue is not before us. We are constrained to observe, nevertheless, that the § 1983 charge would not have withstood an objection by the defendants. Indeed, had an adverse verdict been returned against the defendants, we are persuaded that the charge would not have withstood a contention of plain error. Quoting the Fourteenth Amendment, the court told the jury that it was the theory of the plaintiff that "these men, acting under the color of the State law, wrongfully deprived him of his Constitutional Rights by exceeding their authority in using excessive force in taking him into custody." At no time did the court define "excessive force" in terms of a constitutional deprivation or a violation of a right protected by federal law. The court also referred to "unlawful acts" of the policemen and essentially charged that if the jury found that the policemen defendants committed "unlawful acts," they would be liable. Here, too, the court did not describe "unlawful acts" in the context of the Civil Rights Act, but stated simply that "the unlawful acts must be of such a nature or character and be permitted under such circumstances that they would not have occurred but for the fact that the person committing them was an official exercising his official powers outside the bounds of lawful authority." Such a jury instruction was overbroad, all-encompassing, and did not relate with specificity to any deprivation under the federal constitution or federal laws. Thus, under these instructions, the jury could have found the defendants liable under § 1983 if they found that the police officers committed some "unlawful" act under the civil or criminal laws of the state. Recovery under § 1983 is strictly limited to deprivations under the federal constitution and federal law.*fn2 But, as we have heretofore observed, this error militated against the defendants only, and, being the winner of the verdict, they do not complain.
Still another pleading error of which appellant was the beneficiary was the inclusion of the City of Newark as a defendant in the § 1983 action. Even though Newark consented to this defendant status, a district court does not have subject matter jurisdiction under § 1983 to entertain a claim against a municipality. In Monroe v. Pape, 365 U.S. 167, 187, 191, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), the Court observed "that Congress did not undertake to bring municipal corporations within the ambit of § 1979. . . . The response of the Congress to the proposal to make municipalities liable for certain actions being brought within federal purview by the Act of April 20, 1871, was so antagonistic that we cannot ...