The opinion of the court was delivered by: MODARELLI
This case presents a most unusual situation in that both plaintiff and defendants filed motions for summary judgment under Rule 56(c), Fed.Rules Civ.Proc. 28 U.S.C.
On July 25, 1955, plaintiff, a citizen and resident of the State of New York, filed in this court a complaint against defendants who are the City of Newark, N.J., Frederick R. Lacey, the Chief of Police of the City, 'John' Owens, a police lieutenant of the City, 'and numerous other defendants whose names are unknown to plaintiff.' After eliminating the repetition and an irrelevant dissertation of the Constitution and duties of police officers, the complaint alleges that this action was brought against defendants for 'conspiracy, fraud, duress, physical threats, and other criminal acts committed against plaintiff by defendants above named, who deprived plaintiff of his constitutional and civil rights and the equal protection of the laws; and for the substantive deprivation, denial and invasion thereof, all in violation of the United States Constitution, Amendment XIV, and Civil Rights Acts, Sections 1983 and 1985, 42 U.S.C.'
Plaintiff appears pro se.
Plaintiff is editor and publisher of a 'newspaper,' 'Truth Finder,' published in New York City. He sets forth that on June 29, 1955, he was peacefully distributing circulars and soliciting contributions on Market Street, in the City of Newark. These circulars set forth his views on various matters, assertedly in the public interest. Sufficeth to say that the signs and circulars represented libellous, unrestrained, and venomous attacks upon distinguished public citizens, principally former Gov. Thomas E. Dewey, as well as upon the judicial branch of the United States Government and the State of New York. The highest judicial officer of this nation did not escape plaintiff's ridicule. A city patrolman advised plaintiff that he needed a permit to distribute the circulars and solicit contributions, and told him to apply to police headquarters to obtain one. At the police headquarters, officers read the signs he carried and the circulars. Officers made inquiries to Millerton, New York, plaintiff's home town, and New York City police to secure information about the plaintiff. Plaintiff insists that he was placed under arrest and makes various and diverse allegations of purported mistreatment that he received during the time he was at police headquarters, all of which are denied by defendants.
In his prolix and repetitive complaint, plaintiff has compiled a catalogue of legal terms in obvious ignorance of their meaning and application. These expressions include 'conspiracy,' 'fraud,' 'duress,' 'coercion,' 'third degree,' 'cruel and inhuman criminal acts,' and 'illegal arrest, search and seizure.' The tenor and substance of his complaint may best be appreciated by quoting representative paragraphs as follows:
'12. That the plaintiff was interrogated in no uncertain terms by defendant Owens, just like if he was a criminal of the worst type. Said defendant made all kinds of threatening remarks at plaintiff which are unheard of since the Dark Ages.' Page 4.
'13. * * * Then said defendant (Owens) began asking plaintiff with all kinds of private and personal questions. Putting him through a regular third degree. That by the said criminal acts committed by said defendant, plaintiff was put into a state of extreme fear, and after while said defendant with his cruel way of treating plaintiff, was put through the influence of fear stages, thereby mental coercion was employed by the defendant.' Page 4.
'16. That defendants above named have not constitutional or statutory rights to their office to comit (commit) hereinbefore criminal acts. Membership in the police department is not a right, but a privilege; a privilege burdened with conditions. A fair and upright character is one of them. Compliance with the condition is essential at the moment of becoming a police officer; but is equally essential afterwards. Whenever the condition is broken, the privilege is lost. Furthermore, a police officer is a public servant, a guardian angel to citizens, not a persecutor using gestapo methods.' Page 5.
'20. That the hereinbefore mentioned acts committed by defendants against plaintiff were designed solely for political purposes to impress and protect certain political figures.' Page 6.
Plaintiff seeks the following relief: (1) a judgment of $ 75 for the circulars and two signs which defendants allegedly seized and have held; (2) a judgment for $ 300,000 as general and punitive damages for 'unlawful interference by the remaining defendants with plaintiff's property.'
On May 10, 1956, this court granted a summary judgment in favor of defendant City of Newark.
Defendants Frederick R. Lacey and John Owens have submitted affidavits in support of this motion, as has the plaintiff, Sigmund Pollack. In addition, there is also a deposition of the plaintiff, taken on behalf of the City of Newark, which was considered in disposing of the motions before the court.
Rule 56(c) provides that 'the judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' While an affidavit may not be used as a basis for deciding the fact issue, it may be considered for the purpose of ascertaining whether an issue of fact is presented. Hart & Co. v. Recordgraph Corp., 3 Cir., 1948, 169 F.2d 580; Reynolds Metals Co. v. Metals Disintegrating Co., 3 Cir., 1949, 176 F.2d 90.
Although the complaint alleges conspiracy, fraud, duress, physical threats, and other criminal acts committed against the plaintiff by the defendants, plaintiff makes contradictory denials of these allegations in his deposition. These contradictory denials appear from the following excerpts of his sworn statement:
'Q. When you left, you were friendly to Lieutenant Owens? A. I have nothing against Lieutenant Owens or against Chief of Police Lacey. As ...