562 F.2d 729 (D.C. Cir. 1977), 75-2043, Smith v. Saxbe

Docket Nº:75-2043.
Citation:562 F.2d 729
Party Name:Calvin F. SMITH on behalf of himself and all others similarly situated, Appellant, v. William B. SAXBE, American Embassy in New Delhi, c/o Department of State, et al.
Case Date:June 23, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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562 F.2d 729 (D.C. Cir. 1977)

Calvin F. SMITH on behalf of himself and all others

similarly situated, Appellant,


William B. SAXBE, American Embassy in New Delhi, c/o

Department of State, et al.

No. 75-2043.

United States Court of Appeals, District of Columbia Circuit

June 23, 1977

Argued Nov. 29, 1976.

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Lawrence H. Mirel, Washington, D. C., for appellant. David T. Austern, Washington, D. C., was on the brief, for appellant.

Judith Hetherton, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William D. Pease, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge:

This case comes before us on appeal from an order of the District Court granting summary judgment against plaintiff Calvin

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Smith, who instituted this action for damages and declaratory relief, alleging violations of his constitutional rights. We agree with the District Court that there existed no genuine issue of material fact and that defendants were entitled to their judgment as a matter of law.


In 1973, plaintiff was convicted of several criminal offenses in the United States District Court 1 and committed to Lorton Reformatory, a District of Columbia Department of Corrections facility. Beginning in late 1973, the Department of Corrections permitted him to leave Lorton and visit the District of Columbia for short periods under its furlough program 2 in the belief that he would honor the trust placed in him. 3 His furloughs came to an abrupt halt on September 25, 1974.

On that date, plaintiff was arrested for escape 4 by five agents of the Federal Bureau of Investigation at Union Station as he passed through a gate reserved for passengers with tickets and approached a train bound for New York notwithstanding the condition of his furlough that restricted him to the District of Columbia. The agents discovered a shotgun and four shells in a suitbag he carried. After taking him to their field office for booking, they returned him to custody. Shortly thereafter, he was transferred to the federal penitentiary in Lewisburg, Pennsylvania. 5 No prosecution was brought against him on the escape charge.

On February 27, 1975, plaintiff, by his counsel, filed this action 6 against William

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Saxbe, the former Attorney General, Clarence M. Kelley, the Director of the Federal Bureau of Investigation, certain unknown agents of the Federal Bureau of Investigation who participated in plaintiff's arrest, and Edward Fitzgerald, an employee of the Public Defender Service and an FBI informant, according to the complaint. 7 Plaintiff maintained that the defendants violated his fourth amendment rights by arresting him without probable cause, and by failing to present or arraign him before a magistrate after his arrest. 8 The defendants also allegedly violated Smith's due process rights by not according him administrative hearings before his furlough terminated and before he was transferred from Lorton Reformatory to Lewisburg Penitentiary. Relying upon the fact that the Attorney General had curtailed the Washington, D. C. furlough program six days after his arrest, 9 plaintiff also alleged that the defendants had conspired together to frame him on an escape charge in order to marshal public opinion against the furlough program. According to his complaint, defendant Fitzgerald lured plaintiff to Union Station on the pretext of giving him copies of certain legal documents. At the station, Fitzgerald allegedly informed Smith that he, Fitzgerald, had to catch a train and that his companion was missing. Fitzgerald then handed Smith a suitbox and a railroad ticket and asked him to help him search for his missing companion. Plaintiff claimed that he was arrested while searching for Fitzgerald's companion and that the agents knew that he did not intend to board the train because the defendants had fabricated the incriminating situation.

On June 30, 1975, defendants Kelley, Saxbe, and the agents ("federal defendants") moved for summary judgment. 10 In support of their motion, they submitted affidavits of the seven agents who had participated in the arrest. These interlocking affidavits contradicted plaintiff's allegation of a trumped-up arrest. Each affidavit provided detailed accounts of the events leading up to plaintiff's arrest, demonstrating that the arrest was made in the course of regular law enforcement activities. According to these seven affidavits, the arrest occurred because the agents received a tip as to Smith's criminal plans from an informant who was personally acquainted with Smith. 11

On August 29, 1975, plaintiff responded to the federal defendants' June 30th motion by submitting a "Statement of Material Facts As to Which a Genuine Issue Exists", and a memorandum of points and authorities. Plaintiff did not file any affidavits in opposition to the government's motion. By order dated September 12, 1975, the District Court granted the federal defendants' motion for summary judgment and dismissed the complaint against Edward Fitzgerald for lack of prosecution. Plaintiff appealed from the grant of summary judgment. 12


Plaintiff's first challenge to the ruling below is based upon his contention that summary judgment was improper because factual issues relating to the existence of probable cause for the arrest and of conspiracy were raised by his complaint. We find this contention unavailing in light of his failure to adduce evidentiary support for his theory of the facts when confronted

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with the defendants' motion and supporting affidavits.

Under Rule 56(e) of the Federal Rules of Civil Procedure, a party opposing a motion for summary judgment cannot rest on the allegations in his complaint, but must come forward with evidentiary affidavits; otherwise, the undisputed statements contained in the movant's affidavits are taken as true. Fitzke v. Shappell, 468 F.2d 1072, 1077 (6th Cir. 1972). The movant's opponent can stave off summary judgment by filing an affidavit under Rule 56(f) explaining why "he cannot . . . present by affidavit facts essential to justify his opposition."

In the instant case, plaintiff failed to create an issue of fact as to the arrest. Notwithstanding his allegations that...

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