Arensman v. Brown, 18025.

• Decision Date: 30 July 1970
• Docket Number: No. 18025.,18025.
• Citation: 430 F.2d 190
• Parties: Russell ARENSMAN, Plaintiff-Appellant, v. Roger BROWN, Prosecuting Attorney in and for the 57th Judicial Circuit of the State of Indiana, Theodore Hill, Superintendent of the Dr. Norman M. Beatty Memorial Hospital, Victor Diamond, Chief Psychiatrist, Dr. Norman M. Beatty Memorial Hospital, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.2d 190 (1970)

Russell ARENSMAN, Plaintiff-Appellant, v. Roger BROWN, Prosecuting Attorney in and for the 57th Judicial Circuit of the State of Indiana, Theodore Hill, Superintendent of the Dr. Norman M. Beatty Memorial Hospital, Victor Diamond, Chief Psychiatrist, Dr. Norman M. Beatty Memorial Hospital, Defendants-Appellees.

No. 18025.

United States Court of Appeals, Seventh Circuit.

July 30, 1970.

Russell S. Armstrong, Evansville, Ind., for appellant.

Roger W. Brown, Jasper, Ind., William F. Thompson, Mark Peden, Asst. Attys. Gen., Indianapolis, Ind., Theodore L. Sendak, Atty. Gen., of Indiana, for defendants-appellees.

Before SWYGERT, Chief Judge, MAJOR, Senior Circuit Judge and CAMPBELL, Senior District Judge.^*

MAJOR, Senior Circuit Judge.

Plaintiff instituted this suit with a two-count complaint, Count I predicated upon Sec. 1983, and Count II upon Sec. 1985(2), of the Civil Rights Act, Title 42 U.S.C.A. Defendants named were Wayne L. Hudson and Robert D. McGowan, acting in their official capacity as members of the Indiana State Police Department, and Don Tharp, a member of the Police Department of the City of Huntingburg, Indiana (hereinafter referred to collectively as the officers). Also named as defendants were the City of Huntingburg; Roger Brown, prosecuting attorney for the 57th Judicial Circuit of the State of Indiana, which included Dubois County; Theodore Hill, superintendent of the Dr. Norman M. Beatty Memorial Hospital, an institution administered and maintained by the State of Indiana, and Victor Diamond, chief psychiatrist of that institution.

All defendants moved to dismiss both counts of the complaint for failure to state a cause of action. The motion was denied as to the officers but allowed as to the other defendants. The court at plaintiff's request, pursuant to Rule 54(b), Federal Rules of Civil Procedure, entered a final judgment of dismissal as to the City of Huntingburg, Brown, Hill and Diamond. Plaintiff acquiesces in the dismissal as to the City but appeals from the order of dismissal as to Brown, Hill and Diamond (appellees named in the above caption).

Plaintiff's counsel in oral argument before this court admitted that Count II of the complaint, which charged that all defendants entered into a conspiracy in violation of Sec. 1985(2), was properly dismissed. This leaves for consideration only the charge made in Count I, as it pertains to Brown, Hill and Diamond. In dismissing the charge as to these defendants, the District Court stated:

"The plaintiff has stated that the only relief requested against the defendants Hill and Diamond is that of an equitable nature only. Traditionally, equity will not act where there is an adequate remedy at law. In the case at bar, plaintiff has an adequate remedy at law as to these defendants, to-wit: Habeas corpus, thus equity jurisdiction will not attach. Citing cases.

"Finally, as to Prosecutor Brown, the complaint fails to disclose any allegations that would indicate he has acted in a manner clearly outside the authority or jurisdiction of his office, so as to destroy the immunity which protects him."

While we think the case borders on the frivolous and that the court's order of dismissal was proper, the earnest presentation made by plaintiff's counsel entitles him to more than an abrupt dismissal of his appeal. For this reason we summarize the facts as alleged in plaintiff's complaint, including those which took place prior to the time that Brown, Hill and Diamond are alleged to have had any connection with the matter.

Plaintiff was named as defendant in a divorce suit brought by his wife in the Dubois Circuit Court August 28, 1963. On October 3, 1963, the court entered an order for her support. On August 15, 1966, plaintiff's former wife filed a contempt citation for his failure to comply with the court's order. After a hearing on the matter, the court found plaintiff in contempt for his failure to comply with the support order, and issued a Writ of Attachment against him for his instant presentment to the court to answer for such contempt. On August 29, 1966, accompanied by other officers, the sheriff went to the home of plaintiff's parents to arrest him. Plaintiff alleges that these officers broke in without permission, with pistols drawn. Plaintiff was also armed, shots were fired and plaintiff was wounded in the hand. The officers arrested plaintiff and placed a criminal charge of resisting arrest against him in the Dubois Circuit Court.

The court was advised that plaintiff (defendant in the criminal case) was unable to stand trial and, on August 30, 1966, appointed two physicians to examine him, who reported to the court that he was unable to assist counsel in his defense in said criminal case. The court proceeded under Sec. 9-1706a, Burns' Ind.Stat.Ann., and after a hearing where plaintiff was represented by counsel ordered him committed to the Division of Maximum Security of the hospital as provided by law. We need not set forth or discuss the lengthy statutory provision under which the court acted, as plaintiff concedes on brief, "The Dubois Circuit Court had jurisdiction of Arensman in the said criminal proceedings therein, and said court had jurisdiction of the subject matter and the power to commit Arensman under the above quoted statute. The judgment of the Dubois Circuit Court was therefore for all practical purposes and intents a valid judgment, and could not therefore be attacked in the state courts by habeas corpus."

Plaintiff sought the recovery of damages in the amount of $1,000,000 against the officers who participated in his arrest and the City of Huntingburg, none of whom is a party to this appeal. The sole relief sought against Brown, the prosecuting attorney, is that he "be restrained, prohibited and enjoined from prosecuting said criminal cause of action against the plaintiff." The sole relief sought against Hill and Diamond is that they "be restrained and enjoined from restraining keeping, and detaining the plaintiff in said hospital," and that they "be mandated to release and to order the release of the plaintiff herein from the said hospital."

It is pertinent to note that it is not alleged or claimed that any of the instant defendants had any connection with the divorce proceedings, the contempt adjudication or the issuance of the Writ of Attachment which authorized plaintiff's arrest; that they were responsible in any manner for the events which plaintiff alleges took place at the time of his arrest, or that they had any part in the proceedings by which plaintiff was committed to the hospital. The complaint does not even allege that Brown was responsible for filing criminal charges against him. It merely alleges that the arresting officers took "him into custody and placed a criminal charge against him of resisting arrest."

However, on brief plaintiff argues "that at the time of the filing of the complaint herein Brown persisted in perpetrating said charges even though he knew or should have known of the facts set forth in plaintiff's complaint." Brown on brief admits that acting in his capacity as prosecuting attorney he approved of the criminal charge filed against plaintiff, based on substantial information which he received from the arresting officers, and that he has and does oppose its dismissal. There is no allegation or claim that Brown did not have probable cause to act as he did or that he acted beyond the scope of his official capacity.

We think the only question as to Brown is whether he was cloaked with immunity. Plaintiff cites three cases in support of his contention that he was not. Dombrowski et al. v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22; Whirl v. Kern, 407 F.2d 781 (CA-5), and Johnson v. Crumlish, D.C., 224 F. Supp. 22.

The court's decision in Dombrowski is based upon a highly complicated state of facts, far different from those here, and is of no aid to plaintiff. However, the court recognized certain pertinent principles (380 U.S. page 484, 85 S.Ct. pages 1119-1120):

"* * * the Court has recognized that federal interference with a State\'s good-faith administration of its criminal laws is peculiarly inconsistent with our federal framework. It is generally to be assumed that state courts and prosecutors will observe constitutional limitations as expounded by this Court, and that the mere possibility of erroneous initial application of constitutional standards will usually not amount to the irreparable injury necessary to justify a disruption of orderly state proceedings."

The court called attention to 28 U.S.C. Sec. 2283, which provides:

"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

As to that section the court stated (footnote, page 484, 85 S.Ct. page 1119):

"This statute and its predecessors do not preclude injunctions against the institution of state court proceedings, but only bar stays of suits already instituted. Citing cases."

That statement is of pertinency to the instant situation where plaintiff seeks to restrain the prosecutor from proceeding with an action...