Atkins v. Lanning, 75-C-458-C.

• Decision Date: 28 May 1976
• Docket Number: No. 75-C-458-C.,75-C-458-C.
• Citation: 415 F. Supp. 186
• Parties: Timothy Daryl ATKINS, Plaintiff, v. John Gibson LANNING et al., Defendants.
• Court: U.S. District Court — Northern District of Oklahoma

415 F. Supp. 186

Timothy Daryl ATKINS, Plaintiff, v. John Gibson LANNING et al., Defendants.

No. 75-C-458-C.

United States District Court, N. D. Oklahoma.

May 28, 1976.

Michael L. Fought, Bartlesville, Okl., for plaintiff.

Gatra Marvin and Irvine E. Ungerman, Tulsa, Okl., for defendants.

ORDER

COOK, District Judge.

The Court has before it for determination a Motion for Summary Judgment by the defendants herein.

Plaintiff's Complaint alleges that the defendant, John Gibson Lanning, District Attorney for Washington County, State of Oklahoma, during the period from June 26, 1975, through August 20, 1975, acting in concert jointly and severally with the defendants, Kenneth D. Fouts, an investigator for the Washington County District Attorney's Office, and Randall Craig Ruark, an undercover agent employed by the Washington County District Attorney's Office, did under color of law conspire to unlawfully charge the plaintiff with a felony crime and caused him to be arrested, confined and imprisoned for 33 days before charges were dismissed.

Plaintiff states in the Complaint that the action arises under the Fourteenth Amendment, 42 U.S.C. § 1983 and 42 U.S.C. § 1985. In the section of the Complaint entitled "Cause of Action" plaintiff makes specific allegations in regard to the conduct of each defendant and only specifies that such conduct is in violation of 42 U.S.C. § 1983. No reference is made to the Fourteenth Amendment or 42 U.S.C. § 1985.

In their Motion for Summary Judgment defendants contend plaintiff has failed to state a cause of action pursuant to 42 U.S.C. § 1985. Section 1985 provides in pertinent part for safeguarding the equal protection of the laws or of equal privileges and immunities under the laws. As stated in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 388 (1971):

"The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all."

Title 42 U.S.C. § 1985(3) reaches conspiracy to deprive one of rights only when the object thereof is deprivation of equality and does not cover conspiracies to deny due process. Slegeski v. Ilg, 395 F.Supp. 1253 (D.C.Conn.1975); Collins v. Bensinger, 374 F.Supp. 273 (D.C.Ill.1974); Lewis v. Brautigam, 227 F.2d 124 (5th Cir. 1955).

In Daly v. Pedersen, 278 F.Supp. 88 (D.Minn.1967) the plaintiff alleged he was unlawfully and maliciously arrested based on parking violations. The court dismissed the complaint, stating that "a conspiracy claim based upon § 1985(3) requires a clear showing of invidious, purposeful and intentional discrimination between classes or individuals." In dismissing the complaint of an individual who alleged a conspiracy to secure a conviction by the knowing use of perjured testimony, the court in Mitchell v. Greenough, 100 F.2d 184 (9th Cir. 1938), rehearing denied 100 F.2d 1006, cert. denied 306 U.S. 659, 59 S.Ct. 788, 83 L.Ed. 1056, observed:

"Appellant was subject to no greater hazard than any other individual in the state, namely, the hazard of being prosecuted for a crime and convicted by false testimony."

Plaintiff in the case at bar has failed to allege that there was some racial or other class-based invidiously discriminatory animus behind the actions of the defendants. It is therefore the determination of the Court that defendants' Motion for Summary Judgment in regard to Title 42 U.S.C. § 1985 should be and hereby is sustained.

The defendants also contend that plaintiff has failed to state a cause of action in regard to Title 42 U.S.C. § 1983. The Court finds without merit defendants' contention that defendants' conduct was not under "color of law." Clearly the District Attorney and those on his staff were acting under "color of law" when, based upon their investigation, they caused an arrest warrant to be issued against the plaintiff. An officer or employee of a State or one of the political subdivisions thereof will be deemed to be acting under "color of law" as to those deprivations of rights committed in the fulfillment of the tasks and obligations assigned to him. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Furthermore, misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of the state, is action taken "under color of law." Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963). The Supreme Court has said: "Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

An examination of the factual allegations is warranted in the case at bar in order to determine whether a cause of action is stated and the applicable immunities, if any, as to each defendant.

Plaintiff alleges as factual basis for the action, that Ruark was hired by District Attorney Lanning as a paid operative on salary from the Office of the District Attorney, and Fouts was a special investigator on the District Attorney's staff. Plaintiff further states that Fouts and Ruark conducted a probe of Washington County contraband sales with Fouts directing the operation and Lanning having overall supervision. It is alleged that on June 26, 1975, Ruark purchased marijuana from a person who gave his name as "Adkins" or "Atkins," and that based thereon, Ruark and Fouts, without probable cause and without further investigation determined to charge the plaintiff Timothy Daryl Atkins, with the crime of distributing marijuana. Fouts and Ruark discussed the investigation and supposed sale of marijuana by the plaintiff with District Attorney Lanning in his position as overall supervisory director of the investigation. District Attorney Lanning thereafter filed an information verified by Fouts and citing Ruark as the purchaser of the drugs, which resulted in a bench warrant being issued for the plaintiff. As a result thereof, plaintiff was arrested by Donald Stockton of the Bartlesville Police Force and incarcerated for 33 days.

In regard to defendant Stockton plaintiff states:

"Subsequent to the filing of the Complaint defendants have admitted in their pre-trial statement that the plaintiff Timothy Atkins, was the individual upon whom the arrest warrant was meant to be served. Therefore, it would appear, that Donald Stockton is immune from liability in this action and the plaintiff would move that he be stricken under said circumstances, from the list of defendants."

The Motion for Summary Judgment of Donald Stockton is, therefore, sustained.

In regard to defendant Lanning, the Supreme Court in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128, 44 U.S.L.W. 4251 (1976) recently addressed the question of whether a state prosecuting attorney acting within the scope of his duties in pursuing criminal prosecutions is absolutely immune from a civil suit for damages under § 1983. The Court stated:

"We conclude that the considerations outlined above dictate the same absolute immunity under § 1983 that the prosecutor enjoys at common law. To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious and dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system."

Plaintiff points out that in Imbler the Supreme Court noted that the Court of Appeals focused upon the functional nature of the activities rather than the prosecutor's status, leaving standing those cases in its circuit and some others which hold that a prosecutor engaged in certain investigatory activities enjoys not the absolute immunity associated with the judicial process, but only a good-faith defense comparable to the policeman's. The Supreme Court stated:

"We hold only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under § 1983."

Plaintiff relies heavily on Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973) cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471, in which the court concluded that the prosecutor was not acting in a "quasi-judicial" role but rather in an investigative role in the planning and execution of a raid that led to the death of alleged Chicago Black Panther leader Fred Hampton. In Hampton, the alleged civil rights violation arose out of the prosecutor's conduct as an investigator. In the case at bar, however, the investigation itself did not violate plaintiff's constitutional rights, but rather the violation, if any, was the bringing of a criminal charge without probable cause. The filing of an information by a prosecutor certainly comes within his quasi-judicial role for which the Supreme Court has provided absolute immunity. If the prosecutor were faced with the prospect of civil liability whenever he authorizes prosecution, the prosecutor would bring few charges and justice would not be served. It is therefore the determination of the Court that the Motion for Summary Judgment of defendant John Lanning should be and hereby is sustained.

Defendants Fouts and Ruark contend that they should also be afforded absolute immunity. It is clear from an examination of the cases dealing with absolute immunity, however, that it is narrowly applied. The courts have considered whether absolute immunity should be afforded high officials of the Justice Department and rejected it. Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974). Likewise...