Tuesday, November 2, 2010

Color of law

Initially, we must determine the precise nature of the civil action before the trial court. This was not a pro se proceeding. Plaintiff was represented by private counsel1 who, on several occasions, orally indicated that she intended to proceed under 42 U.S.C. Sec. 1983.2 In an application to amend his complaint, plaintiff made reference to Sec. 1983, and the court order permitting the amendment explicitly referred to this statute, but the written complaint and amendment thereto were limited to 28 U.S.C. Sec. 1343(3), described therein as "the Civil Rights Statute" and the Eighth Amendment. Amended paragraph 1(a) averred: "The jurisdiction of this court is invoked under 28 U.S.C. Section 1343(3) being action authorized by law to redress the deprivation, under color of statute, laws of this State, ordinances, regulations, custom, and usage of any right, privilege or immunity secured to plaintiff by the first and fourteenth Amendments of the Constitution of the United States." The claim for relief asked for "redress under the Civil Rights Act as mentioned."3

in reference to: 464 F.2d 272 (view on Google Sidewiki)

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