author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    AD HOC COMMITTEE ON JUDICIAL ADMINISTRATION, etc., et al., Plaintiffs-Appellants, v. COMMONWEALTH OF MASSACHUSETTS et al., Defendants-Appellees.
    No. 73-1129.
    United States Court of Appeals, First Circuit.
    Argued Sept. 7, 1973.
    Decided Dec. 20, 1973.

      Jerry Cohen, Waltham, Mass., with whom Harold Brown, Boston, Mass., was on brief, for plaintiffs-appellants.
    Lawrence T. Bench, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., and Walter H. Mayo III, Asst. Atty. Gen., were on brief, for defendants-ap-pellees.
    Before COFFIN, Chief Judge, KIL-KENNY  and CAMPBELL, Circuit Judges.

       Of the Ninth Circuit sitting by designation.

   LEVIN H. CAMPBELL, Circuit Judge.

In a class action brought under 42 U.S.C. § 1983, plaintiffs allege that Massachusetts’ failure to provide “court facilities, judges, clerical personnel, and other facilities” violates their Sixth and Fourteenth Amendment rights. The federal judiciary is asked to order enlargement and restructuring of the entire state court system. Plaintiffs are an unincorporated association of Massachusetts attorneys and an elderly plaintiff in a pending Massachusetts civil suit. The defendants are the Commonwealth of Massachusetts, the state legislature and the governor.

The complaint charges that, through no procrastinating techniques of their own choosing, criminal defendants must wait well beyond one year to obtain a trial, and civil litigants must bide their time at least two years, but frequently four years or more. Such delay is said to deprive civil litigants of liberty and property without due process of law. A due process claim is also asserted on behalf of attorneys forced to endure “substantial confiscation of their opportunity to survive economically.” Finally, the complaint alleges that the poor and elderly are deprived of equal protection of the laws because such groups are less able to withstand the effects of lengthy delay.

The prayer for relief asks the district court to order defendants to provide short and long term proposals to alleviate the congestion “and to implement such programs with adequate funding”; it further requests the court to fashion other orders necessary to resolve the court crisis and to retain jurisdiction in order to supervise its decree.

The district court dismissed the complaint for failure to state a justiciable cause of action, and on the ground that the Eleventh Amendment bars the action against defendants. 358 F.Supp. 953 (D.Mass.1973). We affirm on the first ground.

Courts in Massachusetts, as in many other states, have been overtaken by an explosion of litigation, causing congestion and delays which defy solution even by the most active lawyers and jurists. See Annual Report of the Chief Justice of the Massachusetts Supreme Judicial Court, the Honorable G. Joseph Tauro, The State of the Judiciary, 57 Mass.L. Q. 209, 223-25 (1972). The problem is by no means limited to the state judiciary ; the federal courts are likewise overtaxed. We do not dispute the general proposition that residents of the Commonwealth might well benefit from more judges and from enlarged court facilities. However, court-managed reshaping of government institutions — not to mention of other courts- — is not a task to be undertaken lightly. Whether it is to be undertaken at all depends on “justi-ciability”, a word used to distinguish causes which courts may properly handle from those they may not.

In Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 700, 7 L.Ed.2d 663 (1962), the Supreme Court defined justiciability as initially turning on “whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.”

The duty to be identified in the instant case is nothing less than a state’s duty under the federal constitution to furnish timely judicial remedies for all its citizens and in all types and classes of litigation. The district court would have to translate the due process clause into formulae and timetables establishing the maximum permissible delay. This would not be easily done. To date, delay as an aspect of due process has been defined in the context of a particular case; a court looks at the effect of delay on the parties, at their diligence, at the nature of the case, and at the interests at stake. The Supreme Court has not quantified even in criminal cases the right to a speedy trial. “We cannot definitely say how long is too long in a system where justice is supposed to be swift but deliberate.” Barker v. Wingo, 407 U.S. 514, 521, 92 S.Ct. 2182, 2187, 33 L.Ed.2d 101 (1972). Whatever the extent of any correlative right in civil cases, it would, as plaintiffs concede, be less than speedy. In any event, whether delay is a violation of due process depends on the individual case. Delay per se is not unconstitutional; it may become such only when an injured plaintiff, ready and eager for trial, or a defendant, seeking vindication and himself ready for trial, are denied for too long his day in court. If a five year delay in a civil action reflects simply the parties’ utilization of pre-trial discovery or settlement negotiations there is no constitutional violation. To codify the myriad relevant elements into timetables of general application having constitutional force may well be impossible. Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Studies 399, 445-46 (1973).-

Formulating the general duty is, moreover, plagued by other considerations such as whether the state’s duty to afford a trial within a particular time differs as between classes of civil actions, or whether the constitution permits different timetables in different counties and regions. See Missouri v. Lewis, 101 U.S. 22, 30-31, 25 L.Ed. 989 (1879); Kail v. Rockefeller, 275 F.Supp. 937, 942 (E.D.N.Y.1967) (three-judge court).

If formulating a generalized constitutional duty applicable to the entire state court system is difficult, determining whether and in what respect the duty is being violated is equally so. See A.B.A. Approved Standards Relating to Speedy Trial § 2.3 (1968); Rosenberg, Court Congestion: Status, Causes, and Proposed Remedies, in The Courts, The Public and The Law Explosion 29 (H. Jones, ed. 1965). Much of the delay from filing to trial can be attributed to a host of factors:. discovery, negotiation, investigation, strategy, and, of course, counsel’s engagement on other matters or even procrastination. To extrapolate from court statistics a picture of those eases where inability to obtain a trial has reached due process proportions is difficult.

Most difficult of all, however, would be for the district court to attempt to mold a remedy. See De Kosenko v. New York, 311 F.Supp. 126, 128 (S.D.N.Y. 1969); Kail v. Rockefeller, 275 F.Supp. 937 (E.D.N.Y.1967); New York State Association of Trial Lawyers v. Rockefeller, 267 F.Supp. 148, 154 (S.D.N.Y. 1967); Buchanan v. Rhodes, 249 F. Supp. 860 (N.D.Ohio 1966), app. dismissed, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed. 2d 3 (1966); rev’d on other grounds, 400 F.2d 882 (6th Cir. 1968), cert. denied, 393 U.S. 839, 89 S.Ct. 118, 21 L. Ed.2d 110 (1968). Plaintiffs apparently see the district court as ordering needed manpower and physical resources; but it is not clear that additional judges mean less congestion. The increase of 45 judges in New York over a ten year span had no appreciable effect on the waiting period. Desmond, Current Problems of State Court Administration, 65 Colum.L.Rev. 561, 562-63 (1965). Improved facilities may, indeed, merely channel more cases into the overburdened state system; the better alternative might be to close the courthouse to certain types of litigation, as occurred when “no-fault” insurance was adopted in Massachusetts.

In any event, a federal judge faced with the awesome task of ordering measures to cut down the waiting period in a state’s judiciary could hardly consider merely the augmentation of resources. He would also have to inquire into the administration of the system, its utilization of personnel, the advisability of requiring adoption of techniques such as pre-trial conferences, different calendar arrangements, split trials, and the like, and countless other administrative matters about which books have been written and courses taught, and as to the relative value of which there remains much dispute.

Related to the manageability of relief are other considerations that bear on justiciability. A question is nonjusticiable if it turns on policy determinations outside judicial discretion. Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. 691. In this nation, the financing and, to an important extent, the organization of the judicial branches, federal and state, have been left to the people, through their legislature. While state courts have on rare occasions ordered the provision of assistance from the other branches, when they deemed their very capacity to continue functioning at stake, e. g., O’Coins, Inc. v. Treasurer of County of Worcester, Mass., 287 N.E.2d 608 (S.J.C.1972), it would be both un- • precedented and unseemly for a federal judge to attempt a reordering of state priorities. One cannot say that such action could never be justified if the constitution should require, but even the serious facts and circumstances alleged in the complaint do not convince us that the proposed cure would be better than the disease. Some federal courts have, it is true, involved themselves in the adequate financing of state institutions by ordering a state to furnish certain levels of medical and psychiatric care to those involuntarily committed. But in these cases the courts indicated, either implicitly or explicitly, that unless the specific additional services required in order to pass constitutional muster were provided by the state, the facilities in question would be closed. Here, not only is the court unable to articulate a specific standard of “judicial” services which the constitution is thought to require, but any implied threat to close down the state court system if such a standard were not achieved would amount to little more than a quixotic and unwarranted intrusion into an entire branch of state government.

Moreover, one might doubt the wisdom of casting a federal district court in the role of receiver for a state judicial branch. Cf. Younger v. Harris, 401 U.S. 37, 44-45, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). While the state judiciary might appreciate additional resources, it would scarcely welcome the intermed-dling with its administration which might follow. The dictates of a federal court might seem to promise easy relief; yet they would more likely frustrate and delay meaningful reform which, in a system so complex, cannot be dictated from outside but must develop democratically from within the state.

The courts always remain open in individual cases to complaints of unconstitutional deprivation through delay. And, of course, principles announced in one ease may be such as to control other —possibly many other — later cases. But we decline to ask the federal district court to forego its usual adjudicatory role in favor of the sweeping administrative and legislative functions urged upon us.

Affirmed.

      . The class consists of all persons in the Commonwealth and the following subclasses: (1) all defendants in pending criminal proceedings ; (2) all parties in all pending civil proceedings ; (3) the state’s judicial branch ; (4) litigants of moderate or modest means represented by attorneys in the Ad Hoe Committee on Judicial Administration; (5) all persons of advanced age or in minority and underprivileged groups; and (6) all members of the Massachusetts bar.
      Such a class composition poses problems. The group “all persons in the Commonwealth” most likely contains individuals with interests adverse to each other and to the class representatives, namely those desiring to retain the present system rather than pay, through higher taxes, for improvements. 3B Moore’s Federal Practice U 23.07 [3] (2d ed. 1969). Subclass (1) may be precluded by the Supreme Court’s ad hoc approach to the right to speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Defendants on the street awaiting trial may have interests adverse to those in jail; as witnesses die and memory fades, the prosecutor’s burden of proof becomes more difficult. Persons in subclass (2) also may have antagonistic interests since delay arguably benefits civil defendants by making it harder for plaintiffs to win cases, postponing payment until date of judgment, and encouraging settlements. No legal interests were asserted on behalf of subclass (3). Subclasses (4) and (5), in addition to lacking identity of interests, use terms too vague, such as “moderate or modest means” and “advanced age”, to define the class. Chaffee v. Johnson, 229 F.Supp. 445, 448 (S.D.Miss.1964), aff’d, 352 F.2d 514 (5th Cir. 1965), cert. denied, 384 U.S. 956, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966).

      . The Eleventh Amendment bars the action against the Commonwealth. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Although we refrain from deciding the question, the Amendment may also bar relief against the other defendants. Absent waiver, sovereign immunity generally precludes suits against state officers when the relief requested entails a direct levy of execution upon the state treasury, Hagood v. Southern, 117 U.S. 52, 6 S.Ct. 608, 29 L.Ed. 805 (1886), or an injunction ordering specific performance of a state’s contract. In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31 L.Ed. 216 (1887). If official action is unconstitutional, it does not preclude an injunction to halt such action. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Courts have not limited the Ex parte Young doctrine to “negative” relief, and have often ordered positive governmental action. In cases involving deprivation of constitutionally protected rights, “affirmative” relief has been granted, notwithstanding the fact that the incidental effect is that the state will be forced to expend funds from its treasury. See, e. g. Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) ; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ; Inmates v. Eisenstadt, 360 F.Supp. 676 (D.Mass.1973) ; Martarella v. Kelley, 349 F.Supp. 575 (S.D.N. Y.1972). However, in the “affirmative” relief cases, supra, the state still retains an option to avoid expenditures; it can, for instance, terminate all welfare programs. The Commonwealth, on the other hand, would not appear to have a constitutionally permissible alternative — to shut down all the courts rather than spend public funds. It is the lack of such an alternative that may create an Eleventh Amendment bar. Cf. Dugan v. Rank, 372 U.S. 609, 620-623, 83 S.Ct. 999, 10 L. Ed.2d 15 (1963) ; Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691, n. 11, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949).

      . The extent of a person’s right to have access to the state court remains uncertain. Boddie v. Connecticut, 401 U.S. 371, 382-383, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) ; Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973) ; cf. United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973).

      . The reapportionment case relied upon by plaintiffs, Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), is inappo-site. The duty in the reapportionment field is a readily understandable mathematical ideal. Kirkpatrick v. Preisler, 394 U.S. 526, 531, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). In Mahan the Court had no trouble in finding whether the state had deviated from absolute equality; it dealt only with whether such a deviation was justifiable.'- Moreover, even in the reapportionment area, sufficiently manageable standards do not always exist to enable the courts to measure breach. The Court recently held that minor deviations do not constitute prima facie invidious discrimination, stressing the fact that statistical errors in all census reports as well as shifting population composition mean courts just do not have sufficiently reliable data to ascertain whether a person’s vote has been diluted. Gaffney v. Cummings, 412 U.S. 735, 745-747, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973).

      . Plaintiffs presumably would have the court either ignore state provisions which permit the advancement of criminal and civil cases on an ad hoc basis or presume their ineffectiveness. M.G.L.A. c. 277 §§ 72, 72A; c. 231 § 59A.

      . The difficulty with predicting the effect of granting the relief plaintiffs request further distinguishes the instant ease from other affirmative relief situations. See, e. g., United States v. Montgomery County Bd. of Education, 395 U.S. 225, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969) ; Castro v. Beecher, 459 E.2d 725 (1st Cir. 1972).

      . Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1967) ; Wyatt v. Stickney, 334 F.Supp. 1341 (N.D.Ala.1971) ; contra Burnham v. Department of Public Health, 349 F.Supp. 1335, 1341-1343 (N.D.Georgia 1972) ; see generally Schwitzgebel, Bight to Treatment for the Mentally Disabled, 8 Harv.Civ.Bights — Civ.Lib.L.Bev. 513 (1973).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Manuel QUINTANA-GOMEZ and Guillermo Ceron, Defendants-Appellants.
    No. 73-2390
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 25, 1974.

      Mario N. Herce, Tampa, Fla. (Court-appointed), for Guillermo Cerón.
    Anthony F. Gonzalez, Tampa, Fla. (Court-appointed), for Manuel Quintana-Gomez.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., for plaintiff-ap-pellee.
    Before BELL, GODBOLD and GEE, Circuit Judges.

       Bule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   PER CURIAM.

Appellants were convicted, after a jury trial, on counts of importing and possessing 2% lbs. of cocaine, and each received concurrent 5-year sentences on each of the two counts. The cocaine had been discovered by customs officers during a border search which occurred two miles from the banana boat Maya, on which appellants served as crewmen. The officers had kept appellants under surveillance for several hours before the search, and had trailed them from the Maya. The boat itself had been staked out because of its history of carrying drugs from Colombia, and because of an anonymous tip.

This appeal challenges the search, and also the prosecution’s use of the fact that appellants did not tell arresting officers an exculpatory story they introduced at trial.

As for the search, appellant Cerón argues that it was not a border search and that it thus had to be supported by probable cause. This contention is without merit. See Walker v. United States, 5 Cir., 1968, 404 F.2d 900; Davis v. United States, 5 Cir., 1970, 431 F.2d 693.

Both appellants contend that even if the search were a border search it was not supported by reasonable suspicion. In order to explain our contrary conclusion we need only note the Maya’s suspicious status, and also outline appellants’ behavior after they left the ship with other crewmen about 9:00 p.m., and went with them to a bar. After a series of phone calls by a co-defendant (who has not appealed his conviction), the three men were picked up by an unknown driver. They proceeded along a twisting, evasive route, eventually losing customs officers who were tailing them. They returned to the Maya about 11:30 p.m. and departed again about 1:00 a.m. They went to another bar, made a call, hailed a taxi, and with a fourth man went about two miles from the dock. After having waited several minutes in front of a closed furniture store, they were apprehended and searched.

Appellants’ final point of appeal concerns the government's response to their claim at trial that they had been forced by threats of death or injury to carry the cocaine ashore. The prosecution inquired on cross-examination whether this exculpatory story had been told to the arresting officers, and argued to the jury that the failure to do so cast doubt on its veracity. The prosecution also called as a rebuttal witness a Spanish-speaking Customs officer who was not present at the arrest but who had questioned appellants the next day and had not been told the story.

We consider this third point of appeal to be foreclosed by United States v. Ramirez, 5 Cir., 1971, 441 F.2d 950, a case with similar facts and a dead-to-point holding that silence at the time of arrest may be considered when a jury evaluates a defendant’s explanation. As for the agent’s testimony, it was relevant to impeachment of appellants’ claim that their efforts to tell the officers had been frustrated by the fact that none spoke Spanish, and also of the claim that they had told another agent, who was not immediately available to testify, but who had been with the testifying agent throughout the next day’s questioning.

Affirmed.

      . The tipster’s information about the Maya’s sister ship had been proven correct earlier the same day.


author: McENTEE, Circuit Judge.

text:
    Francis GAFFNEY et al., Plaintiffs, Appellants, v. Norman SILK et al., Defendants, Appellees.
    No. 73-1242.
    United States Court of Appeals, First Circuit.
    Heard Nov. 8, 1973.
    Decided Dec. 27, 1973.

      Thomas E. Connolly, Boston, Mass., with whom Schneider & Reilly, Inc., Boston, Mass., was on brief, for appel- ■ lants.
    Martin S. Cosgrove, Quincy, Mass., with whom Francis X. Bellotti, Quincy, Mass., and William J. Carr, Boston, Mass., were on brief, for appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

This action, commenced under 42 U.S. C. § 1983 (1970), seeks to recover damages from the defendant selectmen of the Town of Randolph, Massachusetts, for alleged deprivations of plaintiffs’ procedural due process rights. Plaintiffs are two former Randolph policemen who became physically disabled during the performance of their duties, and who, pursuant to Mass. Gen. Laws Ann. ch. 41, § 111F (1968) had been receiving “regular pay” benefits. On September 13, 1971, the defendants voted to immediately terminate payment of these benefits to plaintiffs, without providing them with prior notice of their action, the reasons therefor, or an opportunity to be heard in opposition to the termination. Shortly thereafter, plaintiffs filed suit in the state superior court seeking declaratory and injunctive relief against the selectmen to compel compliance with § 111F. The state court found a violation of this statute, and ordered payment to plaintiffs of all back pay, and continuation of future benefits.

Plaintiffs then brought this.§ 1983 action for damages, including attorneys’ fees, based on defendants’ decision to terminate their benefits without providing notice, reasons or hearing. On defendants’ motion, filed with their answer, the court dismissed the complaint for failure to state a claim. Thereupon, plaintiffs moved to amend the complaint, which motion was denied and this appeal followed.

Section 1983 protects individuals against deprivations of federally protected rights by those acting under color of state law. Until recently, there was substantial case authority for the proposition that this section and its jurisdictional counterpart 28 U.S.C. § 1343(3) were available only to vindicate “personal rights” and could not be employed to remedy violations of property or proprietary rights. See, e. g., Rhodes v. Sigler, 448 F.2d 1237 (8th Cir. 1971); National Land & Inv. Co. v. Specter, 428 F.2d 91 (3d Cir. 1970); Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), cert. denied, 400 U.S. 841, 91 S.Ct. 82, 27 L. Ed.2d 75 (1970). However, in Lynch v. Household Finance Co., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), the Supreme Court, after a careful and detailed review of the legislative history behind the Civil Rights Act, held that §§ 1983 and 1343(3) were applicable to unlawful deprivations of property rights.

In the instant case, the particular property benefits to which plaintiffs are entitled were created and are enforceable entirely by state statute. However, the deprivations which they allege in their complaint concern not the termination of these benefits per se, but their termination without the essential requisites of procedural due process— notice, reasons, and a hearing — which are the clear requirements of the fourteenth amendment. See, e. g., Roth v. Board of Regents, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct, 1011, 25 L.Ed.2d 287 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). The “regular pay” benefits that had been accorded plaintiffs are “a matter of statutory entitlement for persons qualified to receive them. Their termination involves state action . that adjudicates important rights.” Goldberg v. Kelly, supra, 397 U.S. at 262, 90 S.Ct. at 1017. Consequently, the action of the town selectmen in discontinuing the statutory benefits to which plaintiffs were entitled, without notice, reasons, or a hearing, is a deprivation of federally protected rights within the meaning of § 1983.

Although a complaint sufficiently alleges a deprivation of federally protected rights, money damages may nonetheless be denied where the defendants are protected by the cloak of official immunity. While absolute immunity has been provided to judicial and certain quasi-judicial officers as well as state legislators, the courts have been noticeably reticent about extending such broad protection to lesser legislative and administrative officials such as town selectmen. See, e. g., Harrison v. Brooks, 446 F.2d 404 (1st Cir. 1971); Cobb v. City of Malden, 202 F.2d 701 (1st Cir. 1953). As to these officials, where independent judgment and discretion are involved, the courts have permitted only a qualified immunity based upon good faith performance of their duties as they saw them. Id. See also Roberts v. Williams, 456 F.2d 819 (5th Cir. 1972); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), rev’d on other grounds sub nom. District of Columbia v. Carlson, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Sostre v. McGinnis, 442 F.2d 178 (2d Cir. 1971), cert. denied sub nom. Sostre v. Oswald, 404 U.S. 1049, 92 S.Ct. 719, 30 L.Ed.2d 740 (1972); Young v. Coder, 346 F.Supp. 165 (M.D.Pa.1972). Thus, while a § 1983 action for money damages may be maintained against such officials, plaintiffs have the obligation to sufficiently allege and prove that defendant’s conduct was either “purposefully discriminatory,” Harrison v. Brooks, supra, 446 F.2d at 407, “knowing or reckless,” id., or “willful,” Ka-Haar, Inc. v. Huck, 345 F.Supp. 54 (E.D.Wis.1972). Although there has been some confusion among the courts as to whether these attributes are to be measured by a “subjective” or “objective” standard, see Young v. Coder, supra, 346 F.Supp. at 168-169; Note, The Defense of “Good Faith” Under Section 1983, 1971 Wash.U.L.Q. 666, 669-672, it is the clear rule in this circuit that liability will attach only where “the defendants subjectively realized [that their action] would result in depriving the plaintiff of a right or privilege secured by the Constitution of the United States.” Cobb v. City of Malden, supra, 202 F.2d at 707 (1953). (Magruder, C. J., concurring).

It is within this legal framework that we must examine the district court’s dismissal of the instant complaint on the grounds of official immunity, and its subsequent refusal to grant plaintiffs’ motion to amend. As to the latter, we note that while permission to amend a complaint after dismissal of the action rests in the sound discretion of the court, Hurd v. DiMento & Sullivan, 440 F.2d 1322, 1323 (1st Cir.), cert. denied, 404 U.S. 862, 92 S.Ct. 164, 30 L. Ed.2d 105 (1971), rehearing denied, 404 U.S. 961, 92 S.Ct. 321, 30 L.Ed.2d 281 (1971), amendment to correct a deficiency in pleading should be “freely given when justice so requires,” Fed.R.Civ.P. 15(a); see Bonanno v. Thomas, 309 F. 2d 320, 322 (9th Cir. 1962); Lone Star Motor Import, Inc. v. Citroen Cars Corp., 288 F.2d 69, 75 (5th Cir. 1961), particularly where the action arises under the Civil Rights Act. Cf. Escalera v. New York City Housing Authority, 425 F.2d 853, 857 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970). Where the amended complaint would state a valid cause of action, a motion to amend should normally be granted. Wright, Federal Courts, 239-240 (1963). See Lone Star Motor Import, Inc. v. Citroen Cars Corp., supra, 288 F.2d at 77.

The original complaint filed by plaintiffs, while not specifically alleging bad faith or improper motive, did assert that the action taken by the selectmen in terminating their benefits was in “direct violation of law.” Moreover, it alleged that after plaintiffs successfully prosecuted their state court action, defendants refused to obey the court’s order and complied with it only after contempt proceedings were instituted. The proposed amended complaint reiterated these facts, and added that when defendants terminated plaintiffs’ benefits, they acted with “full knowledge” that their conduct was violative of state law. The amended complaint then went on to allege that defendants acted in a willful manner for the purpose of discriminating against plaintiffs.

While it may be that the matters alleged in the original complaint did not sufficiently suggest defendants’ lack of good faith, so as to overcome their qualified immunity from personal liability, we believe that the allegations contained in the complaint as amended are sufficient to state a cause of action under applicable standards of notice pleading. See Ka-Haar, Inc. v. Huck, supra, 345 F.Supp. at 56. Consequently we conclude that the district court abused its discretion in failing to grant plaintiffs’ motion to amend.

Reversed and remanded for proceedings not inconsistent with this opinion.

      . Belying essentially on the doctrine of official immunity, the court stated “it is clear that plaintiffs’ causes of action arise from municipal officials’ judgment and discretion. Therefore the lack of any indication or allegation of purposeful discrimination is fatal to plaintiffs’ claims.” The court also raised but did not reach the issue of whether the prior state court action barred the claims alleged in the complaint under the doctrine of res judicata.

      . The amended complaint alleged that defendants acted in a knowing and willful manner, with the intent to purposefully discriminate against plaintiffs.

      . Plaintiffs filed timely appeals from both the original dismissal of the complaint, and the denial of their motion to amend.

      . Separate complaints for the policemen were initially filed, but the district court ordered consolidation of the actions.

      . Clear violation of a state statute, which the amended complaint has alleged, coupled with a subsequent refusal to comply with a court order, may certainly be some indication of defendants’ bad faith. When allegations that defendants knowingly and willfully acted in derogation of state law to injure, harass and discriminate against plaintiffs are added, we think that, notwithstanding defendants’ qualified immunity, a sufficient claim under § 1983 has been stated.