Rodriguez v. Ritchey
| Decision Date | 03 August 1977 |
| Docket Number | No. 75-1362,75-1362 |
| Citation | 556 F.2d 1185 |
| Parties | Margaret S. RODRIGUEZ, Plaintiff-Appellant, v. Donald E. RITCHEY et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert W. Knight, Tampa, Fla., for plaintiff-appellant.
Claude H. Tison, Jr., Asst. U. S. Atty., Tampa, Fla., Robert E. Kopp, Atty., Barbara L. Herwig, Atty., Appellate Section, Civil Div., Dept. of Justice, Washington, D. C., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before BROWN, Chief Judge, WISDOM, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges. *
We are called upon in this case to consider the possible civil liability of Federal Bureau of Investigation (FBI) agents who were involved in a criminal investigation which culminated in the indictment and arrest of the plaintiff. The plaintiff alleges that the arrest was in violation of her fourth amendment rights and seeks damages under the authority of Bivens v. Six Unknown Named Agents. 1 We are unable to find, however, that the fourth amendment was infringed, and thus a Bivens -type action cannot be maintained. We are also unable to find that a cause of action under federal statutory or common law has either been alleged or established by the record. Thus, as no basis for federal jurisdiction has been presented, this action should be dismissed.
The record before us discloses a bizarre set of circumstances indeed. It all began in the early 1970's when the Tampa office of the FBI launched a massive investigation into illegal gambling activities occurring in central Florida. As the investigation progressed, a judicially sanctioned tap was placed on the telephone of a suspect, Frank Vega. 2 A pen register was also installed to record numbers dialed from the Vega telephone.
On October 5, 1971, Mr. Vega telephoned the number 935-0024 and spoke with a woman named "Margo" about gambling activities. Unfortunately, the pen register malfunctioned and incorrectly recorded the number dialed as 935-9024. Agent Batley monitored and recorded the call.
Margo was not known to the investigators, and Agent Arwine was assigned the task of identifying her. Armed with only a somewhat unusual nickname and an incorrect telephone number, his first step was to check the Tampa criss-cross directory and the city directory. He found the number in neither book and correctly deduced that the number given to him was unlisted, a not surprising discovery in view of the fact that illegal activity was presumably being carried on over that exchange.
Agent Arwine next approached a security officer of the General Telephone Company in Tampa and asked him to identify the subscriber of 935-9024 for him. The officer complied, identifying Margaret S. Rodriguez, the plaintiff in this case, as the subscriber. But this information, too, was erroneous. The number was actually that of a pay phone, not that of Ms. Rodriguez.
At this point Agent Arwine quite understandably believed that he had identified "Margo." This belief was strengthened when he discovered that Ms. Rodriguez apparently used the diminutive "Margo" since she called her own, home-conducted business "Margo's Beauty Salon." He informed Agent Kinne, the case agent, 3 of his tentative identification.
Agent Arwine next took further steps to confirm his conclusion. He consulted the Tampa Police Department, the Hillsborough County Sheriff and the Tampa Credit Bureau and discovered that Ms. Rodriguez had operated her beauty salon for about sixteen years and had never been arrested. However, when Agent Arwine asked a detective of the Tampa Police vice squad whether he had ever encountered a Margaret or "Margo" Rodriguez in any of his gambling investigations, the detective responded in the affirmative. He related that he had investigated a Margaret Rodriguez who owned a beauty parlor. Oddly enough, our plaintiff was once again the victim of an unfortunate coincidence, for the Margaret Rodriguez referred to by the detective was not the plaintiff in this suit, but a namesake who was facing state criminal charges for gambling at that time.
Agent Arwine, apparently believing that he had adequately verified his identification of "Margo," shortly thereafter submitted his written findings to the case agent, Kinne. Subsequently, Agent Arwine was instructed to phone the suspect on a pretext to attempt a voice identification. Rather than using the erroneous pen register number, though, he looked up the number of Margo's Beauty Salon in the telephone directory and dialed it. He spoke to a woman who claimed she operated the beauty parlor, but he had not listened to the original recording of the Vega-Margo conversation so that the voices could be compared. Instead, during his entire investigation he relied upon a typed transcript of the conversation.
On February 1, 1972, Agent Kinne appeared before a properly constituted federal grand jury to testify. On the same day an indictment was returned in the United States District Court for the Middle District of Florida against Ms. Rodriguez and fifty- six others, charging them with violations of 18 U.S.C. §§ 2, 371 and 1955 (1970). 4 Arrest warrants were immediately issued, but due to logistical difficulties and the need for simultaneous execution they were not served until March 3. Agents Ritchey and Sosbee, who had been called into the case to assist in executing the warrants, were directed to take Ms. Rodriguez into custody. They arrested her in her beauty parlor, and five hours later she was admitted to bail.
The true state of affairs began to unravel about a year later when, during pretrial discovery, Ms. Rodriguez's attorney was permitted to listen to the taped conversation between Vega and Margo. Her attorney told Agent Kinne that the female voice recorded was not that of his client. Agent Kinne then questioned a suspect who had been mentioned during the conversation about who the Margo was on the tape. The suspect claimed the only Margo that he knew was a Margaret Waltz. After questioning, Ms. Waltz admitted that she was the Margo on the taped conversation and disclosed that her telephone number was 935-0024. The indictment of Ms. Rodriguez was subsequently dismissed on the government's motion on May 31, 1973.
On October 24, 1973, Ms. Rodriguez filed suit in the United States District Court for the Middle District of Florida against Agents Ritchey and Sosbee, the arresting officers, and other unknown investigative agents for violating her fourth amendment rights. She complained that there had been no probable cause for her arrest because her indictment was the result of "negligent police conduct." Defendants Ritchey and Sosbee moved to dismiss her complaint for failure to state a claim upon which relief could be granted and, alternatively, for summary judgment on the ground that the claim was barred by the doctrine of official immunity. 5 Their supporting affidavits recited that they had taken the plaintiff into custody pursuant to a warrant issued by the district court authorizing her arrest to answer the indictment. The district court denied the motions.
The unknown investigative agents, Batley and Arwine, the case agent, Kinne, and the Special Agent in Charge of the Tampa office, Santoiana, were subsequently identified and made parties defendant. The previous motions, joined in by these additional defendants, were renewed. The motion to dismiss was again denied, 6 but summary judgment was granted. The district court found as a matter of law from the affidavits of all the defendants that they had acted within the scope of their authority and in good faith, with a reasonable belief in the validity of their actions, and concluded that a good faith defense was both available and appropriate in this instance. 7 On appeal, a divided panel of this court reversed the lower court in part. 8 The majority initially determined that a Bivens - type action had been successfully alleged, but agreed with the district court that the defendants were entitled to a good faith defense. 9 A review of the evidence demonstrated that none of the agents had acted with malice toward Ms. Rodriguez, as she readily conceded. 10 Consequently, the panel affirmed the summary judgments awarded Agents Batley, Ritchey, Sosbee, Kinne and Santoiana. As to Agent Arwine, however, the majority concluded that a jury issue had been created as to whether he had acted in reasonable good faith and remanded the action for trial as to him. 11
It is axiomatic that jurisdiction of a claim in the federal courts must find its base in one of three sources federal statute, federal common law, or the United States Constitution. 12 Of these three sources of jurisdiction, only the Constitution is invoked as authority for Ms. Rodriguez's cause of action. She does not allege any federal statutory claim, and we agree that none is available. 13 The federal common law jurisdictional base has a somewhat nebulous place in this suit. Ms. Rodriguez does not assert a federal common law cause of action, and ordinarily this would end the matter. It could be argued, however, that such a claim is implicit in the facts recited in her complaint or those developed for summary judgment purposes. 14 Moreover the panel majority, although it did not articulate a federal common law base of jurisdiction, drew upon general common law tort theory to bolster its conclusion that a cause of action had been stated. 15 As a result, we deem it appropriate to consider whether a federal common law claim is present to support jurisdiction in this case.
Thus, our analysis of this case will be twofold. First, we will examine whether under the uncontroverted facts of this case a cause of action has been stated under the Constitution. We will then attempt to discern whether a claim has been...
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