Opinion
Civ. A. No. 409.
March 12, 1968.
Philip Barton and Thomas A. Bustin, Gainesville, Fla., for plaintiff.
W.N. Avera, of Chandler, O'Neal, Carlisle, Avera Gray, Gainesville, Fla., for Parker and for defendant, Dixie County.
William R. Burwell, Gainesville, Fla., for Wilson.
ORDER
Counsel for the respective parties appeared for hearing on motion of defendant, Dixie County, Florida, to dismiss it as a party defendant to this action. Jurisdiction of this Court was invoked by plaintiff's complaint under 42 U.S.C. § 1983. The complaint basically alleges that the plaintiff suffered certain physical injuries as result of assault and battery committed upon his person by the defendants, Parker and Wilson, individually and in their respective capacities as Sheriff and Deputy Sheriff of Dixie County, Florida. A separate count seeks to invoke the jurisdiction of this Court against Dixie County, Florida, itself. The County moves to dismiss on the ground that it is a governmental subdivision of the State of Florida and is not covered by the subject statute. Since the Supreme Court ruled in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, it has been held that 42 U.S.C. § 1983 does not extend to governmental subdivisions. These subdivisions are not considered "persons" within the meaning of the statute.
A fair reading of the complaint shows, however, that the individual defendants, Parker and Wilson, are charged with deprivation of this plaintiff's rights, privileges, or immunities secured by the Constitution of the United States by committing assault and battery on the person of the plaintiff under color of their statutory authority as officers of Dixie County, Florida. The complaint does therefore state a cause of action against Parker and Wilson in their individual capacities.
It is, therefore, upon consideration, hereby
Ordered:
1. Motion of the defendant, Dixie County, Florida, to dismiss the complaint for want of jurisdiction be and it is hereby
Ordered:
2. Defendants, Parker and Wilson, in their individual capacities shall file answer or other responsive pleadings as provided by the Federal Rules of Civil Procedure.