The opinion of the court was delivered by: WHIPPLE
This action, filed July 24, 1973, is for damages and equitable relief on account of alleged illegal and unconstitutional investigative activity by the defendants. It is presently before the Court on cross-motions for summary judgment. These motions represent the continuing efforts of counsel to narrow the issues to be presented as the trial date rapidly approaches. As a result there are a considerable number of issues presented upon which this Court shall rule.
At the threshold a brief statement of the nature and purpose of summary judgment is in order. Fed.R.Civ.P. 56 prescribes the procedural device for disposing of actions in which there is no genuine issue as to any material fact. 6 Moore's Federal Practice P 56.04(1), at pp. 56-63. If there is no such genuine issue a court should render summary judgment, if, however, there is a genuine issue as to a material fact, this must be resolved by a trier of fact at trial. See generally, Adickes v. S. H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Taylor v. Rederi A/S Volo, 374 F.2d 545 (3d Cir. 1967). Moreover, questions of law may be resolved by summary judgment. Mellon Nat'l Bank and Trust Co. v. Nationwide Mutual Ins. Co., 32 F.R.D. 365, 366 (W.D.Pa.1962).
By now this Court and all the parties are intimately familiar with the facts of this case. For those not familiar reference is made to Paton v. LaPrade, 524 F.2d 862, 865-867 (3d Cir. 1975) and to my opinion filed November 29, 1978, Paton v. LaPrade, 469 F. Supp. 773 (D.N.J.1978). Thus I will recapitulate only the most notable facts.
As part of a high school assignment for a course called "Left to Right," Lori Paton, a student at West Morris Mendham High School in New Jersey, wrote a letter which she inadvertently addressed to the Socialist Workers' Party, an allegedly subversive organization upon which the Government maintained mail surveillance. After the F.B.I. intercepted the Paton letter, it tried to determine whether she was engaged in subversive activity. An agent was sent to the local police department, the credit bureau, and to her high school to make inquiries. The field agent determined that Paton had written the letter as part of a high school project and was not involved in subversive activity. He therefore advised his superior to close administratively the file the F.B.I. had prepared on her. On June 13, 1973, Paton's attorney wrote J. Wallace LaPrade, Special Agent in charge of the Newark office of the F.B.I., to inquire about the investigation of Paton. LaPrade responded by letter dated July 6, 1973, stating that "no investigation" had been conducted. Plaintiff claims this answer was an intentionally deceitful and misleading statement intended to discourage or hinder her in seeking legal redress.
At the outset I note that the identical issue was argued before Judge Coolahan, October 11, 1977, who denied summary judgment as to LaPrade without prejudice. Nevertheless I have considered these arguments anew.
LaPrade contends that any theory of recovery against him must be based on "respondeat superior" as he was not personally involved in any of the alleged facts. The doctrine of Respondeat superior is unavailable as a basis for imposing liability under § 1983;
there must be some showing of Personal responsibility. Duchesne v. Sugarman, 566 F.2d 817, 830 (2d Cir. 1977); Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976).
In Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976), an action by various citizens against Philadelphia City officials for alleged police misconduct of a pervasive pattern, the Supreme Court held there must be some causal connection between the acts which "subjects . . . or causes to be subjected" (42 U.S.C. § 1983) the deprivation of civil rights and the supervisory personnel who are named defendants. In Rizzo no such causal connection was found.
There are several methods to create the requisite causal connection between a supervisor and his subordinates. The greater the duty a supervisor has to control those employees who actually committed the violation, the less specific knowledge of the offending conduct the supervisor will be required to have. Santiago v. City of Philadelphia, 435 F. Supp. 136, 152 (E.D.Pa.1977). The existence of general policies and practices within an organization can create a Constructive knowledge on the part of the supervisor of the alleged constitutional deprivations. Id.; Holland v. Connors, 491 F.2d 539, 541 (5th Cir. 1974). As the Court explained in Duchesne v. Sugarman, supra :
Unlike Rizzo, in the present case, a jury Could find the individual appellees liable, not on the theory that these supervisory officials may be held responsible for the acts of agents which were negligent or contrary to instructions, but rather on the theory that it was the appellees Own conduct which resulted in the constitutional violations. It is not necessary for § 1983 liability that the appellees directed any particular action with respect to these specific individuals, only that they Affirmatively promoted a policy which sanctioned the type of action which caused the violations. In short this is not a case of indifference, that is, a failure to act in the face of misconduct by subordinates, but is rather a case of affirmative policy-making which may have caused the misconduct. (emphasis in original)
566 F.2d at 831. Causation can be established from the fact that the subordinate's action is an implementation of the policies or practices endorsed by the supervisor. Santiago, supra, 435 F. Supp. at 152.
On the record before me it is clear that there is a question of fact as to what role LaPrade played in the implementation and overseeing of policies and practices which led to Ms. Paton's alleged injury. As such, defendant's motion for summary judgment as to the first cause of action
B. The Legal Propriety of Damages for Embarrassment and Notoriety.