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Although the claim based upon Connell's breach of his duty to instruct and control Hogg seemingly alleges personal involvement in the wrongdoing, analysis reveals that it suffers from the identical defect. A police chief is under no general federal constitutional duty to take positive action to reduce the

incidence of unconstitutional conduct by police officers on the beat, see Rizzo v. Goode To the extent, therefore, that plaintiffs rely upon the breach of this duty alone, they fail even to plead a constitutional violation by Connell. But we do not read plaintiffs' complaint this narrowly. They seem also to suggest that Connell's failure to take positive action caused the constitutional violations and, as such, is actionable either under § 1983 or the Fourteenth Amendment. But even so interpreted, plaintiffs' complaint fails to state a claim for damages. To negative Connell's official immunity, plaintiffs would have to establish active, bad faith participation in the wrongdoing. For example, if the police chief ordered the constitutional violations or possibly, if he deployed or hired the officer under conditions which he should have known would create a threat to the constitutional rights of the citizenry, damages may well be proper.

560 F.2d at 40. The court further noted:

Indeed, this theory strikes us
as a transparent attempt to hold
Connell vicariously liable under
the guise of his having breached a
duty owed plaintiffs' decedent.
Plaintiffs seemingly have taken
one of the modern justifications
for the doctrine of respondeat
superior -- the master's opportunity

to select, train, and control his
servants, an opportunity which
makes the master the best loss-
avoider -- and converted it into
a constitutional duty on the part
of all police chiefs. If there
is a practical difference between
this theory and a vicarious
liability theory, we fail to
perceive it.

560 F.2d at 41 n. 3.

In

In Dimarzo v. Cahill, 575 F.2d 15 (1st Cir. 1978), the defendant Hall, commissioner of correction, appealed from an order by the district court mandating certain changes in the county jail and house of correction. claiming that he could not be held responsible for denying plaintiffs their constitutional rights, the commissioner of correction construed his statutory duty narrowly. Under Massachusetts law he had supervisory responsibility for all state correctional facilities and was charged with promulgating minimum standards for the care and custody of persons committed to those facilities. Plaintiffs had alleged that by failing to promulgate and enforce proper statutory standards, defendant had caused them to suffer the unconstitutional conditions of which they complained. The court noted that the commissioner had statutory responsibility over precisely the conditions giving rise to the violations and that sporadic incidents over which the commissioner might properly claim to have no knowledge or control were not at issue. The commissioner was, therefore, a proper defendant because of his own statutory duty and subsequent failure to act and not on the basis of the acts of others.

3. Second Circuit

In the second circuit personal involvement of the defendant in the alleged constitutional deprivation is a prerequisite to a section 1983 damage award. McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 98 S.Ct. 1282.

Under Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973), the doctrine of respondeat superior is inapplicable in a section 1983 suit for money damages and a showing of some personal responsibility is required.

In

Johnson, the complaint had alleged only that the warden was in charge of all the correctional officers, one of whom allegedly committed an unprovoked attack on the plaintiff. "It did not allege that the warden had authorized the officer's conduct,

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or even that there had been a history of previous episodes requiring the warden to take therapeutic action, . . it alleged a single spontaneous incident, unforeseen and unforeseeable by higher authority. 481 F.2d at 1034. Therefore dismissal of the claim against the warden was proper.

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In Diaz v. Ward, 437 F.Supp. 678 (S.D. N.Y. 1977), an action against the parole board chairman and the commissioner of correctional services, the court noted:

Where a prisoner's § 1983 complaint
against a warden arises out of "a
single spontaneous incident" involving
a correctional officer, "unforeseen
and unforeseeable by higher authority,
and there are no allegations that the
warden had authorized the officer's
conduct, "or even that there had been
a history of previous episodes requir-
ing the warden to take therapeutic
action," the complaint is insufficient
in law, since liability cannot be
predicated solely upon supervisory
authority. However, the presence
of such factors as were absent in
Johnson will sustain a claim for
damages under § 1983 against
supervisory personnel.

437 F.Supp. at 689. Since the complaint alleged that the supervisory defendants knew of the allegedly unconstitutional courses of action of their employees and intentionally, willfully and recklessly failed to restrain them, the motion to dismiss was denied.

The commissioner of corrections was held chargeable with knowledge of plaintiff's improper confinement in solitary in United States ex rel. Larkins v. Oswald, 510 F.2d 583 (2d Cir. 1975). There, a New York statute required that every incident of misbehavior resulting in segregation was to be reported by the prison superintendent to the commissioner. The court, in upholding an award of money damages, noted that the personal responsibility requirement was supplied by the statute.

The statutory reporting requirements mentioned in Larkins, supra, did not become effective until 1970. Mukmuk v. Com'r. of Dept. of Correctional Services, 429 F.2d 272, 274 n. 5 (2d Cir. 1976), cert. denied, 96 S.Ct. 2238, noted that another New York correctional law which had been in effect since 1941 required the warden to keep a daily record of infractions and punishments imposed and required that the record be kept open at all times for the examination of the commissioner. The court declined to decide whether Larkins would apply to a period before 1970.

Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977) affirmed the injunctive relief ordered by the district court after finding that the institution's overall health system did not meet with constitutional requirements:

Moreover, the testimony of the

appellants' own witnesses revealed
that they were either fully aware
of these infirmities or, in the case
of the lobby clinic, unjustifiably
neglected to learn whether the con-
dition complained of existed. Any
attempts to correct these obvious
and glaring flaws had been flimsy
at best.

565 F.2d at 53.

In an action against the welfare bureau for taking and retaining custody of plaintiff's children without consent or a hearing, the court in Duchesne v. Sugarman, 566 F.2d 817 (2d Cir. 1977), observed:

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.

566 F.2d at 831. The court further noted: "Where conduct of the supervisory authority is directly related to the denial of a constitutional right it is not to be distinguished, as a matter of causation, upon whether it was action or inaction." 566 F.2d at 832.

Where the plaintiff alleged that letters he gave to guards, subordinates of the defendants, for mailing, were not mailed, the district court had erred in dismissing the complaint. Christman v. Skinner, 468 F.2d 723 (2d Cir. 1972). The court stated, "At a hearing, [the plaintiff] might be able to prove defendants participation or acquiescence in this activity." F.2d at 726.

468

4. Third Circuit

The diabetic plaintiff in Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972), was involved in an automobile accident and was taken into custody by police officers • who believed him to be intoxicated. Upon arriving at the police station plaintiff was assaulted and beaten in the presence of six officers, two of whom were named as defendants. The district court found that there was insufficient identification of the defendants' participation in the assault of plaintiff, and the court of appeals noted that, although proof of specific intent is not required, "there must be at least proof of the 'condition usually demanded by the law for liability in an action of tort [which] is the existence of either wrongful intention or culpable negligence on the part of the defendant. '"' 464 F.2d at 279. Further, the court stated:

We have heretofore emphasized that it
was necessary to prove that the con-
duct of the participants was intentional
or purposeful. But prerequisite to a
determination that one acted intention-
ally or purposefully is an ascertainment
that the individual charged was the
perpetrator of the constitutional
deprivation. Mere presence of a
person, when an assault and battery
is committed by another, even though
he mentally approves of it, but without
encouragement of it by word or sign,
is not sufficient of itself to charge
him as a participator in the assault.

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