Peck v. United States

• Decision Date: 25 April 1979
• Docket Number: No. 76 Civ. 983 (CES).,76 Civ. 983 (CES).
• Citation: 470 F. Supp. 1003
• Parties: James PECK, Plaintiff, v. The UNITED STATES of America, Thomas J. Jenkins, Associate Director of the Federal Bureau of Investigation, Barrett G. Kemp, and Four Unknown Agents of the Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — Southern District of New York

470 F. Supp. 1003

James PECK, Plaintiff, v. The UNITED STATES of America, Thomas J. Jenkins, Associate Director of the Federal Bureau of Investigation, Barrett G. Kemp, and Four Unknown Agents of the Federal Bureau of Investigation, Defendants.

No. 76 Civ. 983 (CES).

United States District Court, S. D. New York.

April 25, 1979.

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Eric M. Lieberman, Rabinowitz, Boudin & Standard, New York City, for plaintiff.

Robert B. Fiske, Jr., U. S. Atty. Southern District of New York by Peter C. Salerno, Asst. U. S. Atty., New York City, for defendants.

MEMORANDUM DECISION

STEWART, District Judge:

Plaintiff filed this civil action against several named and unnamed FBI agents and the United States seeking damages and declaratory relief for alleged violations of his rights under the First, Fourth, Fifth, Ninth, Thirteenth and Fourteenth Amendments to the Constitution, under 42 U.S.C. §§ 1983, 1985(3) and 1986 and under the common law of Alabama. Jurisdiction is founded upon 28 U.S.C. §§ 1331(a), 1343(3) and (4), and 1346(b). The defendants moved to dismiss the action arguing inter alia that plaintiff failed to state a claim upon which relief can be granted, F.R. Civ.P. 12(b)(6). The Court assigned this case to United States Magistrate Sol Schreiber, who ordered discovery limited to the issues raised by the F.R.Civ.P. 12(b)(6) motion to dismiss. Thereafter, Magistrate Schreiber issued a Recommended Order "Magistrate's Report" which is now before this Court. The defendants have also moved in this court to dismiss plaintiff's action on the ground that it is barred by the applicable statute of limitations.

Plaintiff, in his complaint, alleges that on May 14, 1961, he was assaulted by "vigilantes", some or all of whom were members of the Ku Klux Klan, while participating in a "Freedom Ride" to Birmingham, Alabama sponsored by the Congress for Racial Equality to challenge segregation in public facilities used in interstate travel (Complaint ¶¶ 3, 8, 14, 15). Plaintiff further alleges that several FBI agents, as the result of knowledge obtained by and through an informant, Gary Thomas Rowe, Jr. (and possibly through other informants) had prior knowledge of a conspiracy between the Birmingham Police Department and the vigilantes to allow the vigilantes fifteen minutes to attack physically the "Freedom Riders" upon their arrival in Birmingham (Complaint ¶¶ 9-11). Plaintiff alleges that these agents, having such prior knowledge, failed to inform anyone in the Justice Department (other than FBI personnel) or to inform state or local officials of either the conspiracy or the planned violence, and made no attempt to deter the conspirators, or to prevent or mitigate the violence (Complaint ¶¶ 12, 19, 20). The Birmingham police did not appear until "approximately fifteen minutes after the beating occurred" (Complaint ¶ 16) and no members of the vigilante group were ever arrested (Complaint ¶ 17).

I. THE MAGISTRATE'S RECOMMENDED ORDER

On the basis of the limited discovery allowed by Magistrate Schreiber, it was:

Recommended that an order be granted that plaintiff has stated a cause of action, grounded in common law tort, against the individual defendants and the United States. It is further recommended that plaintiff's claims based on the Civil Rights Act, 42 U.S.C. §§ 1983, 1985 and 1986, constitutional grounds and respondeat superior, as well as those for declaratory relief and against Clarence M. Kelley, Director of the FBI, be dismissed. Magistrate's Report at 21-22.

In a previous Order and Judgment this Court, pursuant to the Magistrate's Report and upon the consent of the parties, dismissed all the claims as to defendants Kelley and Webster (William H. Webster, Kelley's successor as Director of the FBI, was automatically substituted for Kelley under F.R.Civ.P. 25(d)(1) insofar as Kelley was sued in his official capacity) and dismissed all claims for declaratory relief.

A. Civil Rights Act Claims Against the Individual Defendants

Magistrate Schreiber recommended that the Civil Rights Act claims be dismissed because to state a cause of action under 42 U.S.C. §§ 1983, 1985(3) and 1986, a defendant must be acting under color of state law or acting jointly with state officials (Magistrate's Report at 8). The Magistrate found that since the individual defendants in this case were federal officials acting under color of federal, not state law, Id. at 8, and because plaintiff did not sufficiently allege joint action with state officials Id. at 7, plaintiff failed to state a claim upon which relief can be granted under §§ 1983, 1985(3) and 1986.

1. § 1983

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

Section 1983, by its own terms, applies to persons acting under color of state law. It does not generally extend to persons acting under color of federal law. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir. 1972). See also: Soldevila v. Secretary of Agriculture of the United States, 512 F.2d 427, 429 (1st Cir. 1975); Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965); Smith v. United States Civil Service Commission, 520 F.2d 731, 733 (7th Cir. 1975); Williams v. Rogers, 449 F.2d 513, 517 (8th Cir. 1971), cert. denied, 405 U.S. 926, 92 S.Ct. 976, 30 L.Ed.2d 799 (1972). However, actions of federal officers may be the subject of a § 1983 suit if there is proof of a joint conspiracy with state officials, Kletschka v. Driver, 411 F.2d 436, 448 (2d Cir. 1969). Here it is claimed that the government was a joint participant in the conspiracy because defendants Jenkins, Kemp and defendants A through D had prior knowledge of the planned conduct of the vigilantes and the Birmingham police (Complaint ¶¶ 10, 11) but failed to report this to anyone in the Justice Department (other than FBI personnel) (Complaint ¶ 12) or to state and local officials (Complaint ¶ 19) and failed to deter the conspirators or take any other steps to prevent their actions (Complaint ¶ 13). Plaintiff also claims that there was joint government participation in that Rowe participated in the conspiracy (Complaint ¶ 23) and that the federal officers "approved the acts of Rowe and likewise participated in and furthered the aforesaid conspiracy" (Complaint ¶ 24). Plaintiff contends that this is sufficient to sustain, on a motion to dismiss, a claim that the government was a joint conspirator for purposes of Kletschka. We disagree. The proper standard is that set out in Powell v. Workmen's Compensation Bd. of State of New York, 327 F.2d 131, 137 (2d Cir. 1964) and applied by Magistrate Schreiber:

Plaintiff is bound to do more than merely state vague and conclusionary allegations respecting the existence of a conspiracy. It was incumbent upon him to allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy. Hoffman v. Halden, supra, 268 F.2d 280 at 295. See Dunn v. Gazzola, 216 F.2d 709 (1 Cir. 1954); Ortega v. Ragen, 216 F.2d 561 (7 Cir. 1954), cert. denied, 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268 (1955); Yglesias v. Gulfstream Park Racing Ass'n, Inc., 201 F.2d 817 (5 Cir.), cert. denied, 345 U.S. 993, 73 S.Ct. 1132, 97 L.Ed. 1400 (1953); McGuire v. Todd, 198 F.2d 60 (5 Cir.), cert. denied, 344 U.S. 835, 73 S.Ct. 44, 97 L.Ed. 649 (1952).

See Martin Hodas, East Coast Cinematics v. Lindsay, 431 F.Supp. 637, 643-44 (S.D.N.Y. 1977). Plaintiff contends that several documents obtained during discovery "clearly establish the individual defendants' knowledge of the vigilante action." But knowledge by the FBI agents, even coupled with allegations of failure to take any action is insufficient to plead joint participation in a conspiracy. Plaintiff's reliance on Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978) is misplaced. Plaintiff refers us to the following language:

A person "subjects" another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made. (Sims v. Adams (5th Cir. 1976) 537 F.2d 829. Moreover, personal participation is not the only predicate for section 1983 liability. Anyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable. The requisite casual connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. (Cf. Beverly v. Morris (5th Cir. 1972) 470 F.2d 1356.)

Id. at 743. However, this defines the phrase "subjects, or causes to be subjected" in § 1983 and is applicable only if there is state action. It does not define the "joint conspiracy" requirement of Kletschka, which must be satisfied when plaintiff seeks to include federal officers under § 1983. Plaintiff concedes that as to his second basis for alleging conspiracy, "there is no record of the individual defendants sanctioning Rowe for his participation in that prior act; there is evidence that they rewarded him for his role in the conspiracy that led to...