Bergman v. United States

• Decision Date: 19 November 1982
• Docket Number: No. G 77-6.,G 77-6.
• Parties: Walter BERGMAN and Frances Bergman, Plaintiffs, v. UNITED STATES of America, Clarence M. Kelley, individually and as Director of the Federal Bureau of Investigation and as successor to J. Edgar Hoover, Former Director of the Federal Bureau of Investigation; Richard Held, individually and as Assistant Director of the Federal Bureau of Investigation; Barrett G. Kemp, individually and as a former employee of the Federal Bureau of Investigation, Thomas J. Jenkins, individually and as a former employee of the Federal Bureau of Investigation and four unknown agents of the Federal Bureau of Investigation, Defendants.
• Court: U.S. District Court — Western District of Michigan

551 F. Supp. 407

Walter BERGMAN and Frances Bergman, Plaintiffs, v. UNITED STATES of America, Clarence M. Kelley, individually and as Director of the Federal Bureau of Investigation and as successor to J. Edgar Hoover, Former Director of the Federal Bureau of Investigation; Richard Held, individually and as Assistant Director of the Federal Bureau of Investigation; Barrett G. Kemp, individually and as a former employee of the Federal Bureau of Investigation, Thomas J. Jenkins, individually and as a former employee of the Federal Bureau of Investigation and four unknown agents of the Federal Bureau of Investigation, Defendants.

No. G 77-6.

United States District Court, W.D. Michigan, S.D.

November 19, 1982.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William Goodman, Neal Bush, Detroit, Mich. (Kenneth Weidaw, II, of counsel, Grand Rapids, Mich.), for plaintiffs.

R. Joseph Sher, Torts Branch, Civ. Div., U.S. Dept. of Justice, Washington, D.C., John Smietanka, U.S. Atty., Grand Rapids, Mich., for defendants.

MEMORANDUM OPINION

ENSLEN, District Judge.

Plaintiffs' filed this civil action on January 4, 1977 against several named and unnamed Federal Bureau of Investigation (FBI) agents, in their individual and official capacities, and the United States government, seeking damages and declaratory relief for alleged violations of their rights arising under the First, Fourth, Fifth, Ninth, Thirteenth, and Fourteenth Amendments to the Constitution, under Title 42 of the United States Code, §§ 1983, 1985(3) and 1986, and under the Federal Tort Claims Act.¹ Jurisdiction is premised upon 28 U.S.C. §§ 1331(a), 1343(3) and (4), and 1346(b).

The matter is presently before this Court on Defendants' Motion to Dismiss filed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure alleging, inter alia, that Plaintiffs have failed to state a claim upon which relief can be granted and that, in any event, Plaintiffs' claims are barred by the applicable statutes of limitations.²

Background

This case arises from incidents which occurred in the so-called "Freedom Rides" of 1961. The Congress for Racial Equality (CORE) decided, in the spring, to send a bus or buses of "Freedom Riders" through several southern states, including Alabama, for the purpose of challenging, by non-violent means, segregation in public and private facilities which catered to, and served, interstate commerce. This challenge was to be carried out by the Freedom Riders' (a racially mixed group), integration of such facilities. Plaintiffs Walter and Frances Bergman were "Freedom Riders", and were on a bus which crossed the state line from Georgia to Alabama with several intended stops. The group on the bus consisted of black and white men and women and also included, among others, James Peck. Violent criminal enterprise was undertaken by known and unknown individuals, during the "Freedom Ride" in Anniston and Birmingham, Alabama. The injuries complained of by Plaintiff Walter Bergman were alleged to have been suffered by him in Anniston, Alabama, while the bus was stopped and, perhaps, in Birmingham as well. The injuries complained of by Frances Bergman, both direct and vicarious, also allegedly occurred at both locations. Since the filing of this suit Frances Bergman has died. The injuries claimed by both are more fully set forth in the pleadings in this matter, and a more lengthy account of the events which occurred in Anniston and Birmingham is set forth in Peck v. United States, 470 F.Supp. 1003 (S.D.N.Y.1979).

The Peck Case

In a scholarly and erudite opinion, Judge Stewart in Peck, supra, discussed Peck's constitutional, statutory and common law claims. Among other holdings, Judge Stewart opined that a § 1986 claim was stated against the individual defendants, and against the United States. In so ruling, Judge Stewart was of the opinion that a substantial question as to whether the § 1986 action was barred by the statute of limitations existed and, therefore, deferred decision on that issue until the parties completed "additional discovery."

Judge Stewart dismissed plaintiff's claims asserted under 42 U.S.C. § 1983, and § 1985(3), and concluded that Peck could not proceed under his claim based upon the Federal Tort Claims Act inasmuch as the law does not impose a duty to warn on the defendants; nor could Peck proceed under a Bivens theory since Peck could obtain complete relief under 42 U.S.C. § 1986. Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Previously, and in an apparently unpublished opinion, Judge Stewart dismissed Peck's claims for declaratory relief and all claims as to defendants William H. Webster and Clarence Kelley.

Generally, the facts in Peck and Bergman are identical excepting, of course, the individual assaults complained of and the resulting injuries. Furthermore, it would appear from reading Judge Stewart's opinion that the theories which Peck proceeded on in the Southern District of New York are identical to the theories Bergmans proceed on in the Western District of Michigan. There exist, however, at least two significant differences, (and some uncertainty on my part) which are noteworthy.

The differences include: (1) Judge Stewart was confronted with a motion limited to the pleadings under FRCP 12, while the instant motion is being considered, by me, pursuant to Rule 56 (see footnote 2); and, (2) Gary Thomas Rowe's testimony is before me, via deposition taken in 1980, which testimony is critical. Inasmuch as Judge Stewart's opinion was released in 1979, he could not have considered the Rowe testimony.

My uncertainty includes my ignorance of his reasoning on plaintiff's request for declaratory relief, and what "limited discovery" was intended to, and did, accomplish. I assume, without knowing, that Rule 12 discovery must be related, solely, to the statute of limitations questions presented by defendants. I am also not privy to the actual pleadings in Peck.

The Bergman Case

I. The Civil Rights Act

A. The 1983 Claim

Plaintiffs allege that Rowe, working as an FBI operative, and in his undercover capacity as a member of the Ku Klux Klan, participated in and furthered the alleged conspiracy between the Birmingham and Anniston police forces and organized vigilantes to deprive them and other "Freedom Riders" of their rights, privileges and immunities as secured by the Constitution and laws of the United States, under color of state law and in violation of 42 U.S.C. §§ 1983, 1985(3) and 1986. It is further alleged that Defendants Jenkins, Kemp and four unknown agents of the FBI approved the acts of Rowe and likewise participated in and furthered the conspiracy in violation of §§ 1983 and 1985(3) by actively concealing this conspiracy, and breaching § 1986 by failing to prevent or aid in the prevention of the physical attack upon Walter Bergman, which was within the knowledge of these Defendants and was purportedly committed in furtherance of the conspiracy.

The Defendants respond by contending that the instant action should be dismissed for failure to state a claim upon which relief can be granted since the Defendants are acting under color of federal, not state, law; the sine qua non of a § 1983 suit being a deprivation of civil rights via action taken under color of state law.

In Peck, Judge Stewart determined that plaintiff's claim under § 1983 was insufficiently pleaded to state a cause of action since Peck's complaint was vague, stated "conclusionary" (sic) allegations with regard to the conspiracy, and did not sufficiently plead the federal officers' joint participation in any state conspiracy.

Like Judge Peck, I, also, have some difficulty in concluding that Plaintiffs ought to survive a Rule 56 motion on their § 1983 claim, but acknowledge that the record in the case sub judice appears to be distinguishable from the Peck record, and, consequently, I am inclined to balance the unanswered questions, and the record differences, in favor of the Bergman Plaintiffs. There may be no distinction between Bergman and Peck, but based upon the file, to date, in the instant matter, I cannot, and will not, make such a final conclusion. What follows further supports my inclination:

In Adickes v. S.H. Kress & Company, 398 U.S. 144, 150-152, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142, 150 (1970), the Supreme Court held that private parties, jointly engaged with state officials in unlawful conduct, are acting under "color of law" for purposes of 42 U.S.C. § 1983. In so holding, the court indicated that such joint conduct exists when the private and public parties act with a common understanding or "meeting of the minds". Id. at 152, 158, 90 S.Ct. at 1605, 1608. See United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 1157 n. 7, 16 L.Ed.2d 267, 272 (1966); Smith v. Brookshire Brothers, Inc., 519 F.2d 93, 94-95 (CA 5 1975) cert. den., 424 U.S. 915, 96 S.Ct. 1115, 47 L.Ed.2d 320 (1976); Barnes v. Dorsey, 480 F.2d 1057, 1061 (CA 8 1973); Fulton v. Emerson Electric Company, 420 F.2d 527, 530 (CA 5 1969), cert. denied, 398 U.S. 903, 90 S.Ct. 1689, 26 L.Ed.2d 61 (1970). See also, Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963); Smith v. Hampton Training School for Nurses, 360 F.2d 577, 580 (CA 4 1966). In expanding upon this holding, the court in Kletschka v. Driver, 411 F.2d 436, 448 (CA 2 1969) reasoned that a joint conspiracy between federal and state officials should carry the same consequences under § 1983 as does joint action by state officials and private persons. In so holding, the Kletschka court announced the following test:

It was the evident purpose of § 1983 to provide a remedy when federal rights have been violated through the use or misuse of a power derived from a State. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473,

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