FSM SUPREME COURT
TRIAL DIVISION
Cite as Youp v. Pingelap,
9 FSM Intrm. 215 (Ponape 1999)

[9 FSM Intrm. 215]

YOHPER YOUP,
Plaintiff,

vs.

PINGELAP MUNICIPALITY
and HUSTON YOHP,
Defendants.

CIVIL ACTION NO. 1995-024

ORDER

Andon L. Amaraich
Chief Justice

Decided:  August 30, 1999

APPEARANCES:
For the Plaintiff:                 Joses Gallen, Esq.
                                            P.O. Box 189
                                            Weno, Chuuk FM 96942

For the Defendant:            Douglas Parkinson, Esq.
(Pingelap Municipality)     P.O. Box 2069
                                            Kolonia, Pohnpei FM 96941

For the Defendant:            Andrew Sprenger, Esq.
(Yohp)                                 Micronesian Legal Services Corporation
                                            P.O. Box 129
                                            Kolonia, Pohnpei FM 96941

*    *    *    *
[9 FSM Intrm. 216]

HEADNOTES
Constitutional Law ) Equal Protection
     The FSM Constitution provides that equal protection under the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language or social status.  This provision is designed to guarantee that similarly situated individuals are not treated differently due to some sort of invidious discrimination.  Youp v. Pingelap, 9 FSM Intrm. 215, 217 (Pon. 1999).

Constitutional Law ) Equal Protection
     When the plaintiff has not alleged that he was battered based upon his sex, race, ancestry, national origin, language or social status, but has merely alleged that the police, in battering him violated his equal protection rights, The plaintiff's equal protection claim will be dismissed.  Youp v. Pingelap, 9 FSM Intrm. 215, 217 (Pon. 1999).

Criminal Law and Procedure ) Cruel and Unusual Punishment
     The FSM Constitution prohibits cruel and unusual punishment, but when a person has not been tried, convicted and sentenced, no question of cruel and unusual punishment arises.  Youp v. Pingelap, 9 FSM Intrm. 215, 217 (Pon. 1999).

Criminal Law and Procedure ) Cruel and Unusual Punishment
     FSM cases addressing cruel and unusual punishment have consistently focused on claims made by prisoners.  Youp v. Pingelap, 9 FSM Intrm. 215, 217 (Pon. 1999).

Criminal Law and Procedure ) Cruel and Unusual Punishment
     When the plaintiff's alleged injuries occurred in connection with his arrest, and not as a result of any subsequent sentence he may have received, the plaintiff, as a matter of law, could not have been subjected to cruel and unusual punishment.  His cruel and unusual punishment claim will therefore be dismissed.  Youp v. Pingelap, 9 FSM Intrm. 215, 217-18 (Pon. 1999).
 
*    *    *    *

COURT'S OPINION
ANDON L. AMARAICH, Chief Justice:
     This case involves the plaintiff's allegations of police brutality that purportedly occurred during his arrest.  In all, the plaintiff's complaint includes ten separate causes of action against the defendants:  1) battery; 2) excessive force; 3) pattern of excessive force; 4) failure to train officers; 5) failure to supervise; 6) denial of equal protection; 7) unreasonable seizure and invasion of privacy; 8) cruel and unusual punishment; 9) denial of due process; and 10) violation of civil rights.

     The defendants now move to dismiss two of the ten counts in the complaint; count 6, which alleges denial of equal protection, and count 8, which alleges cruel and unusual punishment.1  The plaintiff did not respond or in anyway oppose the motions now pending before the Court.  For the reasons set forth below, the defendants' motions are hereby granted.

[9 FSM Intrm. 217]

Discussion
     As noted above, this case involves allegations of police misconduct that arose in connection with the arrest of the plaintiff.  In a nutshell, the plaintiff maintains that he was severely beaten by the police at the time of his arrest.  At issue here, is the plaintiff's allegation that the defendants denied him equal protection under the laws and that they also subjected him to cruel and unusual punishment.

     Article IV, section 4 of the FSM Constitution provides that equal protection under the laws may not be denied or impaired on account of sex, race, ancestry, national origin, language or social status.  This provision of the Constitution is designed to guarantee that similarly situated individuals are not treated differently due to some sort of invidious discrimination.  Samuel v. Pryor, 5 FSM Intrm. 91, 106 (Pon. 1991).

     For example, in Davis v. Kutta, 7 FSM Intrm. 536 (Chk. 1996) the plaintiff sued the state of Chuuk following a shooting incident in which she was injured by a stray bullet fired from a police service revolver.  The facts showed that the police fired their guns into a crowd.  The plaintiff alleged several causes of action, including the allegation that the police had violated her right to equal protection under the law. The Court, however, rejected the claim of equal protection because"[t]here was no evidence of any intent to discriminate against her (e.g., shoot her because she is a woman) or otherwise treat her differently from any other person at the scene."  Id. at 547.

     In contrast to the ruling on Davis v. Kutta, the Court, in Berman v. FSM Supreme Court(I), 5 FSM Intrm. 364 (Pon. 1992), held that a court rule limiting a non-citizen's right to take the FSM bar examination to not more than three times in any five year period violated the equal protection clause of the FSM Constitution.  In that opinion, the Court explained that in not treating a non-citizen in the same manner as a citizen, the rule discriminated based upon national origin.  Id. at 366.

     In this case, the defendants argue that the plaintiff has not alleged or otherwise explained which class he is a member of that is afforded equal protection.  In other words, according to the defendants, the plaintiff has not alleged that he was battered based upon his sex, race, ancestry, national origin, language or social status.  Instead, as the defendants so maintain, the plaintiff has merely alleged that the police, in battering him violated his equal protection rights.  A review of the complaint confirms these assertions by the defendants.  In addition, the plaintiff has not opposed the defendants' motions now pending before the Court, which could have included the submission of evidence showing that the plaintiff was a member of a protected class and that the defendants conduct at issue here allegedly occurred as a result of the plaintiff's membership in that class.

     Thus, like the plaintiff in Davis, the plaintiff in this case has failed to provide any evidence of any intent to discriminate against his or to otherwise treat him differently from any other person.  As such, the defendants' motion to dismiss the plaintiff's allegation of a denial of his equal protection under the laws is hereby granted.

     With regard to the allegation concerning any punishment inflicted upon him, Article IV, section 8 of the FSM Constitution prohibits cruel and unusual punishment.  However, where a person has not been tried, convicted and sentenced, no question of cruel and unusual punishment arises.  Paul v. Celestine, 4 FSM Intrm. 205, 208 (App. 1990).  Instead, the cases in the FSM addressing cruel and unusual punishment have consistently focused on claims made by prisoners.  See FSM v. Phillip, 5 FSM Intrm. 298 (Kos. 1992); Plais v. Panuelo, 5 FSM Intrm. 179 (Pon. 1991).

     In this case, the defendants, noting that the plaintiff's complaint itself alleged injuries that occurred in connection with his arrest, and not as a result of any subsequent sentence he may have

[9 FSM Intrm. 218]

received, argue that the plaintiff, as a matter of law, could not have been subject to cruel and unusual punishment.  A review of the allegations in the complaint confirm that the plaintiff has alleged that his injuries occurred in connection with his arrest. In addition, the plaintiff has not filed a motion opposing the defendants' motions now pending before the Court.

     Accordingly, the plaintiff's allegation concerning cruel and unusual punishment is hereby dismissed.

Conclusion
     For the reasons set forth above, the defendants' motions for partial summary judgment as to count 6 denial of equal protection ) and count 8 ) cruel and unusual punishment ) of the plaintiff's complaint are hereby granted.
 
 
Footnote:
 
1.  The defendant Huston Yohp filed a motion for partial summary judgment. The defendant Pingelap Municipality then filed a motion in which it stated that it concurred with its co-defendant's motion for partial summary judgment and requested that the Court grant the motion for partial summary judgment.
 
                                                                                                                                                                                                                                                                                                           
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