APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-1744).
Aldisert and Weis, Circuit Judges, and A. Sherman Christensen, District Judge.*fn*
A bank customer's complaint which alleges that he was photographed pursuant to a police-promoted plan which expressly discriminated on a racial basis sets out a claim under the Civil Rights Acts. Accordingly, a dismissal of plaintiff's complaint under Fed. R. Civ. P. 12(b)(6) must be vacated.
The plaintiff filed a complaint against the Pennsylvania State Police, its commissioner and other state officials, as well as the Bank of King of Prussia, alleging violations of the Civil Rights Acts, 42 U.S.C. §§ 1981, 1983, 1985, 1986, and the Fifth, Thirteenth and Fourteenth Amendments to the United States Constitution. He charged that at the instance of the state officials, a directive had been issued to the defendant bank and other financial institutions to photograph suspicious black males or females coming on the premises. Contending that his right to privacy and other civil rights had been violated, plaintiff, a black citizen, asked for declaratory and injunctive relief as well as damages.
After the defendants had filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the plaintiff asked leave to file a second amended complaint which deleted two governmental entities, and set out the facts in greater specificity. The district court concluded that the proposed amended, as well as the original and first amended complaints, failed to state a federal cause of action and dismissed the action without prejudice.
Attached to the original complaint was a copy of the directive issued by the State Police. It stated in part:
1/ Take photos of any black males or females coming into bank who may look suspicious:
A. Come in to ask directions
B. Exchange large bill for small money
C. Come in for no apparent reason.
NOTIFY LOCAL OR STATE POLICE"
The proposed amended complaint stated that the directive was received in August, 1974 by the defendant bank which in concert with the state officials commenced a program of photographing suspicious-looking blacks who entered the bank. The photographs were delivered or made available to the police. On March 17, 1976, the plaintiff entered the bank to transact business and was photographed. He believed that his photograph had been made available to the state police and had been preserved for ...