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MOOR ET AL. v. COUNTY ALAMEDA ET AL.

decided: May 14, 1973.

MOOR ET AL
v.
COUNTY OF ALAMEDA ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT.

Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, post, p. 722.

Author: Marshall

[ 411 U.S. Page 694]

 MR. JUSTICE MARSHALL delivered the opinion of the Court.

This case raises three distinct questions concerning the scope of federal jurisdiction. We are called upon to decide whether a federal cause of action lies against a municipality under 42 U. S. C. §§ 1983 and 1988 for the actions of its officers which violate an individual's federal civil rights where the municipality is subject to such liability under state law. In addition, we must decide whether, in a federal civil rights suit brought against a municipality's police officers, a federal court may refuse to exercise pendent jurisdiction over a state law claim against the municipality based on a theory of vicarious liability, and whether a county of the State of California is a citizen of the State for purposes of federal diversity jurisdiction.

[ 411 U.S. Page 695]

     In February 1970, petitioners Moor and Rundle*fn1 filed separate actions in the District Court for the Northern District of California seeking to recover actual and punitive damages for injuries allegedly suffered by them as a result of the wrongful discharge of a shotgun by an Alameda County, California, deputy sheriff engaged in quelling a civil disturbance.*fn2 In their complaints, petitioners named the deputy sheriff, plus three other deputies, the sheriff, and the County of Alameda as defendants. The complaints alleged both federal and state causes of action.

The federal causes of action against the individual defendants were based on allegations of conspiracy and intent to deprive petitioners of their constitutional rights of free speech and assembly, and to be secure from the deprivation of life and liberty without due process of law. These federal causes of action against the individual defendants were alleged to arise under, inter alia, 42 U. S. C. §§ 1983 and 1985, and jurisdiction was asserted to exist under 28 U. S. C. § 1343.

[ 411 U.S. Page 696]

     As to the County, both the federal and state law claims were predicated on the contention that under the California Tort Claims Act of 1963, Cal. Govt. Code § 815.2 (a), the County was vicariously liable for the acts of its deputies and sheriff committed in violation of the Federal Civil Rights Act.*fn3 The federal causes of action against the County were based on 42 U. S. C. §§ 1983 and 1988,*fn4 and thus jurisdiction was also alleged to exist with respect to these claims under 28 U. S. C. § 1343. Both petitioners argued before the District Court that it had authority to hear their state law claims against the County under the doctrine of pendent jurisdiction. In addition, petitioner Moor who alleged that he was a citizen of Illinois asserted in his complaint that the District Court also had jurisdiction over his state law claim against the County on the basis of diversity of citizenship.*fn5

Initially, the defendants answered both complaints denying liability, although the County admitted that it had consented to be sued.*fn6 Thereafter, the County, arguing lack of jurisdiction, moved to dismiss all of the claims against it in the Rundle suit and to dismiss the federal civil rights claims in the Moor suit. The County relied upon this Court's decision in Monroe v. Pape, 365

[ 411 U.S. Page 697]

     U.S. 167, 187-191 (1961), as having resolved that a municipality is not a "person" within the meaning of 42 U. S. C. § 1983, and on this basis alone it considered the civil rights claims against it to be barred. Moreover, in Rundle , the County argued that since there was before the District Court no claim against the County as to which there existed an independent basis of federal jurisdiction, it would be inappropriate to exercise pendent jurisdiction over the state law claim against it.

The District Court agreed with the County's arguments and granted the motion to dismiss the Rundle suit. It, however, postponed ruling in the Moor case pending consideration of possible diversity jurisdiction over the state law claim against the County in that case. Subsequently, the County sought to have the state law claim in Moor dismissed on the basis that it was not a citizen of California for purposes of diversity jurisdiction. While this motion was pending, a motion for reconsideration of the order dismissing the County was filed in the Rundle case. Following argument with respect to the jurisdictional issues, the District Court entered an order in Moor holding that there was no diversity jurisdiction and incorporating by reference an order filed in the Rundle case which again rejected petitioners' civil rights and pendent jurisdiction arguments. Upon the request of the petitioners, the District Court, finding "no just reason for delay," entered a final judgment in both suits with respect to the County under Fed. Rule Civ. Proc. 54 (b), thereby allowing immediate appeal of its jurisdictional decisions.*fn7

[ 411 U.S. Page 698]

     The two cases were then consolidated for purposes of appeal, and the Court of Appeals for the Ninth Circuit affirmed the District Court with respect to all three issues raised by the two cases, 458 F.2d 1217 (1972). In addition to rejecting petitioners' arguments concerning the existence of pendent jurisdiction and diversity jurisdiction over the state law claims, the Court of Appeals disagreed in particular with petitioners' contention that § 1988 alone established a federal cause of action against the County for their injuries on the basis of California law which created vicarious liability against the County for the actions of its officers that violated petitioners' federal civil rights. Because of the importance of the questions decided by the Court of Appeals, we granted certiorari. 409 U.S. 841 (1972). For reasons stated below, we now affirm that portion of the Court of Appeals' decision which held that petitioners had failed to establish a cause of action against the County under 42 U. S. C. §§ 1983 and 1988, and that the trial court properly refused to exercise pendent jurisdiction over the state law claims. We reverse, however, its holding that the County is not a citizen of California for purposes of federal diversity jurisdiction.

I

We consider first petitioners' argument concerning the existence of a federal cause of action against the County under 42 U. S. C. § 1988. Petitioners' thesis is, in essence, that under California law the County has been made vicariously liable for the conduct of its sheriff and deputy sheriffs which violates the Federal Civil Rights Acts*fn8 and that, in the context of this case, § 1988 authorizes the adoption of such state law into federal law in order to render the Civil Rights Acts fully effective,

[ 411 U.S. Page 699]

     thereby creating a federal cause of action against the County.

Section 1988 reads, in relevant part, as follows:

"The jurisdiction in civil . . . matters conferred on the district courts by [the Civil Rights Acts] . . . , for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies . . . , the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil . . . cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . . ."

The starting point for petitioners' argument is this Court's decision in Monroe v. Pape, 365 U.S. 167 (1961). There the Court held that 42 U. S. C. § 1983, which was derived from § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13, was intended to provide private parties a cause of action for abuses of official authority which resulted in the deprivation of constitutional rights, privileges, and immunities.*fn9 At the same time, however, the

[ 411 U.S. Page 700]

     Court held that a municipality is not a "person" within the meaning of § 1983. Id., at 187-191. Petitioners do not squarely take issue with the holding in Monroe concerning the status under § 1983 of public entities such as the County. Instead, petitioners argue that since the construction placed upon § 1983 in Monroe with respect to municipalities effectively restricts the injured party in a case such as this to recovery from the individual defendants, the section cannot be considered to be fully "adapted" to the protection of federal civil rights or is "deficient in the provisions necessary to furnish suitable remedies" within the meaning of § 1988. In petitioners' view, the personal liability of the individual defendants under § 1983 is, as a practical matter, inadequate because public officers are frequently judgment-proof.*fn10 Thus, petitioners contend it is appropriate under § 1988 for this Court to adopt into federal law the California law of vicarious liability for municipalities -- that is, the "common law, as modified . . . by . . . statutes of the State wherein the court having jurisdiction of such civil . . . cause is held." Having thus introduced the State's law of vicarious liability into federal law through § 1988, they then assert that there is federal jurisdiction to hear their federal claims against

[ 411 U.S. Page 701]

     the County under 28 U. S. C. § 1343 (4). Section 1343 (4) grants jurisdiction to the federal district courts to hear any civil action "commenced by any person . . . [t]o recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights . . . ," and § 1988 is, petitioners say, such an "Act of Congress."

Petitioners in this case are not asking us to create a substantive federal liability without legislative direction. See United States v. Standard Oil Co., 332 U.S. 301 (1947); cf. United States v. Gilman, 347 U.S. 507 (1954). It is their view, rather, that in § 1988 Congress has effectively mandated the adoption of California's law of vicarious liability into federal law. It is, of course, not uncommon for Congress to direct that state law be used to fill the interstices of federal law.*fn11 But in such circumstances our function is necessarily limited. For although Congress may have assigned to the process of judicial implication the task of selecting in any particular case appropriate rules from state law to supplement established federal law, the application of that process is restricted to those contexts in which Congress has in fact authorized resort to state and common law*fn12 Cf. Richards v. United States, 369 U.S. 1, 7-8 (1962). Considering § 1988 from this perspective, we

[ 411 U.S. Page 702]

     are unable to conclude that Congress intended that section, standing alone, to authorize the federal courts to borrow entire causes of action from state law.

First, petitioners' argument completely overlooks the full language of the statute. Section 1988 does not enjoy the independent stature of an "Act of Congress providing for the protection of civil rights," 28 U. S. C. § 1343 (4). Rather, as is plain on the face of the statute, the section is intended to complement the various acts which do create federal causes of action for the violation of federal civil rights.*fn13 Thus, § 1988 specifies that "the jurisdiction in civil and criminal matters conferred on the district courts by the provisions of this chapter [Civil Rights] and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States." But inevitably existing federal law will not cover every issue that may arise in the context of a federal civil rights action.*fn14 Thus, § 1988 proceeds to authorize

[ 411 U.S. Page 703]

     federal courts, where federal law is unsuited or insufficient "to furnish suitable remedies," to look to principles of the common law, as altered by state law, so long as such principles are not inconsistent with the Constitution and laws of the United States.

The role of § 1988 in the scheme of federal civil rights legislation is amply illustrated by our decision in Sullivan v. Little Hunting Park, 396 U.S. 229 (1969). In Sullivan, the Court was confronted with a question as to the availability of damages in a suit concerning discrimination in the disposition of property brought pursuant to § 1982 which makes no express provision for a damages remedy.*fn15 The Court concluded that "the existence of a statutory right implies the existence of all necessary and appropriate remedies," id., at 239, and proceeded to construe § 1988, which provides the governing standard in such a case, to mean "that both federal and state rules on damages may be utilized, whichever better serves the policies expressed in the federal statutes. . . . The rule of damages, whether drawn from federal or state sources, is a federal rule responsive to the need whenever a federal right is impaired." Id., at 240.*fn16 Properly viewed, then, § 1988 instructs federal courts as to what law to apply in causes of actions arising under federal civil rights acts. But we do not believe that the section, without more, was meant to authorize the wholesale importation into federal law of state causes

[ 411 U.S. Page 704]

     of action*fn17 -- not even one purportedly designed for the ...


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