O'Brien was in no way involved in that trial and had no authority over the persons in charge of the prosecution of appellant in Plymouth County. A defendant will not be held liable under 42 U.S.C. § 1983 unless he was personally involved in causing the deprivation of a constitutional right or he either has or is charged with having actual knowledge that his subordinates are causing deprivations of constitutional rights. Potts v. Wright, 357 F. Supp. 215, 218 (E.D.Pa. 1973). We note that O'Brien is not charged with having concealed or withheld information from Beebe and Sturges, the prosecutors in Plymouth County. Indeed those prosecutors were charged with having intentionally and purposefully concealed the facts concerning use of drugs to induce appellant's confession.
Even private citizens can take on the color of state law when they participate in police action or when the state sanctions their exercise of police authority. Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Scott v. Vandiver, 476 F.2d 238 (4th Cir. 1973); Potts v. Wright, 357 F. Supp. 215, 218-219 (E.D.Pa. 1973). The district judge did not assign any reasons for his decision to enter summary judgment.
See, e.g.,Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir. 1997) ("Where a supervisor with authority over a subordinate knows that the subordinate is violating someone's rights but fails to act to stop the subordinate from doing so, the factfinder may usually infer that the supervisor `acquiesced' in . . . the . . . conduct."), abrogated on other grounds by,Burlington Northern and Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006); Triplett v. Azordegan, 570 F.2d 819, 823 (8th Cir. 1978) ("A defendant will not be held liable under . . . § 1983 unless he was personally involved . . . or he either has or is charged with having actual knowledge that his subordinates are causing deprivations of constitutional rights"); Potts v. Wright, 357 F.Supp. 215, 218 (E.D.Pa. 1973) ("[D]efendant is not liable under § 1983 unless he `was personally involved in causing the deprivation of a constitutional right or he either has or is charged with having actual knowledge that his subordinates are causing deprivations of constitutional rights'"). The Moving Defendants are not required under pain of Section 1983 liability to believe every accusation made by a prisoner that his constitutional rights are being violated.
Ward, 458 F. Supp. 624, 627 (S.D.N.Y. 1978) ("[W]here a prison official is `aware' of the unconstitutional activities of those subject to his authority, the ultimate responsibility for permitting these actions is squarely his"); Perry v. Elrod, 436 F. Supp. 299, 303 (N.D.Ill. 1977) ("Thus, if a supervisory official is deliberately or recklessly indifferent to constitutional violations by his subordinates, or others under his control, his indifference is actionable"); Delaney v. Dias, 415 F. Supp. 1351, 1354 (D.Mass. 1976) (For a public official to be liable under § 1983 on a theory of personal misfeasance, "there must be an allegation of, at least, some participation or acquiescence — express or otherwise — in the constitutional deprivations complained of"); Smith v. Wickline, 396 F. Supp. 555, 563 (W.D.Okl. 1975) ("[R]esponsibility may be imposed if the official knew of past culpable conduct on the part of a subordinate and failed to take appropriate steps to prevent a recurrence"); Potts v. Wright, 357 F. Supp. 215, 218 (E.D.Pa. 1973) ([D]efendant is not liable under § 1983 unless he "was personally involved in causing the deprivation of a constitutional right or he either has or is charged with having actual knowledge that his subordinates are causing deprivations of constitutional rights, and he is negligent in failing to take action to prevent the deprivations"). The cases cited by defendants did not involve knowing acquiescence by supervisors.
See Hall v. Garson, 430 F.2d 430 (5th Cir. 1970). Cf. Potts v. Wright, 357 F. Supp. 215 (E.D.Pa. 1973) (no state authorization — no state action present). This Court recognizes that resort by private citizens to constitutionally infirm state court prejudgment remedies is an exception to this general rule.
Prior to Monell, a § 1985 damage claim could not be maintained against a municipality because the latter was not a "person". See Bosely v. City of Euclid, 496 F.2d 193 (CA6 1974); see also Weathers v. W. Yuma County School District, 387 F. Supp. 552 (D.Colo. 1974); Potts v. Wright, 357 F. Supp. 215 (E.D.Pa. 1973). Now, however, the Supreme Court's current reading of legislative history to classify a municipal corporation as a "person" under § 1983 presumably is equally applicable to § 1985, each of whose subdivisions proscribes conduct by "two or more persons".
There are few federal cases dealing with the subject of student strip searches, and unfortunately those cases are all distinguishable from that at bar. The cases of Picha v. Wielgos, 410 F. Supp. 1214 (N.D.Ill., E.D. 1976), and Potts v. Wright, 357 F. Supp. 215 (E.D.Pa. 1976), both § 1983 actions involving student searches, and cited by both parties in their memoranda, clearly hinged in their holdings upon police involvement in the searches, a factor not present in this case. As stated by the Court in Potts,
Although the school may have an interest in the safety of its charges, either with regard to one student possessing drugs, or with regard to the possibility that that student would transfer possession of drugs to another student, all it can do in furtherance of that interest is to locate and perhaps confiscate the drugs. In the course of such a procedure, evidence may be acquired, as was the case in In Re Boykin, supra, or as could have been the case in Potts v. Wright, 357 F. Supp. 215 (E.D.Pa. 1973), which may ultimately be considered to have been reasonably obtained and therefore usable in a criminal prosecution or in an adjudication of delinquency. However, the evidence here could not support a jury finding that the police were called merely in furtherance of this interest.
The Court's conclusion that an allegation of at least some degree of personal participation is an essential element of a claim under § 1983 is not unsupported by prior case law. See, Bennett v. Gravelle, 323 F. Supp. 203 (D.Md. 1971), aff'd, 451 F.2d 1011 (4th Cir.), cert. denied, 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972); Collins v. Schoonfield, 363 F. Supp. 1152, 1156 (D.Md. 1973); Bichrest v. School District of Philadelphia, 346 F. Supp. 249, 253 (E.D.Pa. 1972); Potts v. Wright, 357 F. Supp. 215, 218 (E.D.Pa. 1973); Battle v. Lawson, 352 F. Supp. 156, 158 (W.D.Okla. 1972); Hopkins v. Hall, 372 F. Supp. 182, 183 (E.D.Okla.
We reach this conclusion in part because simple negligence is generally not sufficient to violate a person's civil rights, while reckless negligence might be. See Reed v. Philadelphia Housing Authority, 372 F. Supp. 686, 692 (E.D.Pa. 1974). See also Potts v. Wright, 357 F. Supp. 215, 218 (E.D. Pa. 1973): A defendant will not be held liable under the Civil Rights Act of 1871, 42 U.S.C. § 1983 unless the defendant was personally involved in causing the deprivation of a constitutional right or he either has or is charged with having actual knowledge that his subordinates are causing deprivations of constitutional rights, and he is negligent in failing to take action to prevent the deprivations.