58 F.R.D. 453 (N.D.Ga. 1972), 16070, Jones v. Bales

Docket NºDiv. A. 16070.
Citation58 F.R.D. 453
Opinion JudgeSIDNEY O. SMITH, Chief Judge.
Party NameOttis Mayo JONES v. Gertrude BALES et al.
AttorneyOttis Mayo Jones, pro se. John E. Dougherty, Atlanta, Ga., McCampbell, Young, Bartlett & Woolf, Louis C. Woolf, Knoxville, Tenn., for Cheatham and Waggoner. Gertrude Bales, pro se. John W. Stokes, Jr., U.S. Atty., Beverley B. Bates, Asst. U.S. Atty., Atlanta, Ga., for Kirksey and Taylor.
Case DateJuly 13, 1972
CourtUnited States District Courts, 11th Circuit, Northern District of Georgia

Page 453

58 F.R.D. 453 (N.D.Ga. 1972)

Ottis Mayo JONES


Gertrude BALES et al.

Div. A. No. 16070.

United States District Court, N.D. Georgia, Atlanta Division.

July 13, 1972

Supplemental Opinion Sept. 19, 1972.

Page 454

[Copyrighted Material Omitted]

Page 455

Civil rights action for damages was brought by a convicted felon against state and federal law enforcement officers and a private citizen. The District Court, Sidney O. Smith, Jr., Chief Judge, held, inter alia, that plaintiff's civil rights claim of unlawful search of his automobile was frivolous within purview of statute providing that court may dismiss case filed in forma pauperis if satisfied that action is frivolous or malicious, under circumstances, including fact that judge who presided at plaintiff's criminal trial determined, after a full hearing at which plaintiff testified and was represented by counsel, that the search was not unconstitutional.

Case dismissed.

Judgment affirmed, 5 Cir., 480 F.2d 805.

Page 456

Ottis Mayo Jones, pro se.

John E. Dougherty, Atlanta, Ga., McCampbell, Young, Bartlett & Woolf, Louis C. Woolf, Knoxville, Tenn., for Cheatham and Waggoner.

Gertrude Bales, pro se.

John W. Stokes, Jr., U.S. Atty., Beverley B. Bates, Asst. U.S. Atty., Atlanta, Ga., for Kirksey and Taylor.

SIDNEY O. SMITH, Chief Judge.

This civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985 and Bivens v. Six Unknown Fed. Narcs. Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1970), is before the Court on motions to dismiss or alternatively for summary judgment filed by defendants Cheatham, Waggoner, Kirksey, and Taylor and on motions for default judgment and summary judgment filed by plaintiff.

Plaintiff's motion for default judgment rests on the fact that, although more than twenty days have passed since the complaint was filed, defendants Waggoner, Cheatham, Kirksey, and Taylor have not yet filed their answers. Plaintiff's motion for default judgment is denied; where a motion to dismiss has been filed, no answer need be filed until ten days after the Court disposes of the motion. Fed.R.Civ.P. 12(a).

In respect to defendants' motions to dismiss, Waggoner and Cheatham specifically contend (1) this Court is an improper venue, (2) plaintiff's allegations of conspiracy are insufficient as a matter of law to state a claim and (3) any claim arising in Tennessee is barred by the applicable Tennessee statute of limitation, T.C.A. § 28-304. Defendants Kirksey and Taylor in their motion to dismiss argue that plaintiff's claims are barred by Tennessee's and Georgia's statutes of limitations, T.C.A. § 28-304 and Ga.Code § 3-1004, and that the complaint generally fails to state a claim.

For the purposes of considering these motions to dismiss, plaintiff's well-pleaded allegations are assumed to be true. Campbell v. Beto, 460 F.2d 765 (5th Cir. April 18, 1972). Plaintiff makes these allegations: On or about January 10, 1969, in the northern district of Georgia, defendants and others entered into a conspiracy to deprive plaintiff of his constitutional rights and to railroad him to prison. In furtherance of the conspiracy, the defendants and others have committed several overt acts. On January 10, 1969, defendants

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caused plaintiff to be arrested on an illegal detainer warrant as plaintiff was released from the federal prison in Atlanta. Plaintiff was confined in a nearby county jail where he was physically abused. On January 28, 1969, the defendants acting under color of state law arranged for plaintiff's release on bail. Once freed on bail, defendants imprisoned petitioner in an apartment in Atlanta. At the apartment, the defendants, acting through an attorney, who is now deceased, and other associates, gave plaintiff a false driver's license, a credit card and stolen money orders and ordered plaintiff to cash the stolen money orders and to turn the cash received over to defendant Bales. On or about February 21, 1969, defendant Bales planted approximately thirty stolen postal money orders on her person and then persuaded plaintiff to accompany her to Knoxville, Tennessee, at which place defendants planned to entrap and arrest plaintiff by using evidence which had been forged and planted by them. On February 22, 1969, and prior thereto, defendant Bales and her Atlanta associates falsely made and forged all of the stamp markings, the amounts, and all of the handwriting on the face of United States Postal money order No. 5,616,352,675. On February 22, 1969, defendant Bales, while sitting in plaintiff's rented vehicle in front of an A & P food store, ordered plaintiff to take the forged money order into the A & P store, endorse it, and get it cashed. When the store would not cash the money order, plaintiff left the store; and within twenty minutes, plaintiff was stopped in his car and arrested by Knoxville City Police Officer Cheatham. Subsequently, defendants Bales, Waggoner, a Knoxville city detective, and Kirksey, a federal postal inspector, caused plaintiff to be jailed while plaintiff's automobile was unlawfully searched by them. Thirty money orders and other incriminating evidence were found during the search. At plaintiff's criminal trial in Tennessee, a federal district judge ordered all evidence gained by the search suppressed. Nevertheless, plaintiff was convicted of uttering stolen money postal orders by the Tennessee federal court. Later, plaintiff was convicted in a Florida federal court for similar crimes. Plaintiff is now confined in the federal prison in Atlanta, where defendants, acting through their conspirators, continue to deprive plaintiff of his federal rights.

The elements necessary for a cause of action under 42 U.S.C. § 1985(3) are (1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the law or equal privileges or immunities under the law, (3) a purposeful intent to discriminate, i. e., there must be some racial or perhaps otherwise class based invidiously discriminatory animus behind the conspirators' action, and (4) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in the furtherance of the conspiracy. Compare Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) with Granville v. Hunt, 411 F.2d 9, 11 (5th Cir. 1969). See also Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (5th Cir. 1972). Applying this standard to the complaint sub judice, it seems the complaint fails to state a claim under 42 U.S.C. § 1985(3). Petitioner has failed to allege any facts that would tend to show that the alleged conspirators were motivated by some racial or otherwise class-based invidiously discriminatory animus.

To maintain a cause of action under 42 U.S.C. § 1983 plaintiff must show (1) that he has been deprived of a right, privilege or immunity secured by the Constitution and laws of the United States, (2) that the defendants subjected plaintiff to the deprivation or ‘ cause[d]’ him to be so subjected, and (3) that the defendants acted ‘ under color of any statute, ordinance, regulation,

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custom or usage of any State . . ..’ Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir. 1969).

For a claim under 42 U.S.C. § 1983, a conspiracy is not a vital element. Nevertheless, a conspiracy may be used as the legal mechanism through which to impose liability on each and all defendants without regard to the person doing the particular act. Mizell v. North Broward Hosp. Dist., 427 F.2d 468, 472-473 (5th Cir. 1970); Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir. 1963). For example, in this case defendants Bales, a private citizen, and Kirksey and Taylor, federal officers, could not be sued under section 1983 absent the allegation of conspiracy with persons, such as Cheatham and Waggoner, who were acting under color of state law.

Regarding this action as one pursuant to 42 U.S.C. § 1983, the Court is faced in limine with venue issues. There is no special venue statute for civil rights actions. 1 J. Moore, Federal Practice ¶ 0.144 [17] at 1680 (1964). Thus, the general venue statute 28 U.S.C. § 1391 (1972 Supp.) controls. Title 28 U.S.C. § 1391(b) provides ‘ [a] civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose.’ Since all the defendants here do not reside in this district, the action must be brought where the claim arose. Where the action is based on an alleged conspiracy within the meaning of 42 U.S.C. § 1985(3), the action may be brought in the district where the conspiracy was formed or in any district where an overt act occurred. Cf. Finley v. United States, 271 F.2d 777, 781 (5th Cir. 1959) (criminal conspiracy may be prosecuted either at the place where the conspiracy was formed or where any of the overt acts were committed). A different venue question is presented, however, by a 42 U.S.C. § 1983 action in which a conspiracy is alleged by the plaintiff simply to spread liability. Where the action is based on an alleged conspiracy posited on 42 U.S.C. § 1983, each overt act is a separate cause of action. Mizell v. North Broward Hosp. Dist., 427 F.2d 468, 475 (5th Cir. 1970). Where several overt acts appear in the complaint, venue must be proper as to each cause of action. 3A J. Moore, Federal Practice ¶ 18.07[1.-1] at 1906 (2 ed. 1970). Since defendants Cheatham and Waggoner have expressly objected to this court as a venue for the trial of section 1983 claims against them based on overt acts in Tennessee, those claims are dismissed. Similarly, plaintiff's Fourth Amendment Bivens claim 1 arising from the search of plaintiff's automobile in Tennessee is dismissed as to Cheatham and Waggoner.

Defendants Kirksey, Taylor and Bales have not...

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