Bivens v. 6 UNKNOWN NAMED AGENTS OF FED. BUR. OF NARCOTICS

• Decision Date: 24 November 1967
• Docket Number: No. 67-C-655.,67-C-655.
• Citation: 276 F. Supp. 12
• Parties: Webster BIVENS, Plaintiff, v. 6 UNKNOWN NAMED AGENTS OF the FEDERAL BUREAU OF NARCOTICS, Defendants.
• Court: U.S. District Court — Eastern District of New York

276 F. Supp. 12

Webster BIVENS, Plaintiff, v. 6 UNKNOWN NAMED AGENTS OF the FEDERAL BUREAU OF NARCOTICS, Defendants.

No. 67-C-655.

United States District Court E. D. New York.

November 24, 1967.

No appearance for plaintiff.

Joseph P. Hoey, U. S. Atty., for the Eastern District of New York, for defendants, Ralph Bontempo, Asst. U. S. Atty., of counsel.

MEMORANDUM and ORDER

BRUCHHAUSEN, District Judge.

The plaintiff moves for leave to appeal in forma pauperis from the order of this Court, dated October 9, 1967, dismissing the complaint for want of jurisdiction.

The said order was incorporated in the Court's memorandum of that date. Since that date, the Court has conducted further research and consideration of the cases, bearing upon the issue of law herein.

THE PLAINTIFF'S CLAIM OF JURISDICTION

In his complaint, the plaintiff alleges:

"1. This Court has jurisdiction to entertain this complaint under the Civil Rights Act of 1871, Title 42 U.S.C., Section 1983, and Title 28 U.S.C., Sections 1331(a) and 1343(3) and (4).

"2. While acting under the colors and authority of the United States of America, six (6) Agents of the U. S. Narcotic Bureau, did violate plaintiff's constitutional rights, the facts are as follows. * * *"

In substance, the plaintiff alleges in his complaint that the defendants arrested him and instituted a search and seizure, without possessing warrants. He demands damages from each defendant in the sum of $15,000.

THIS COURT HAS NO JURISDICTION OF THE PLAINTIFF'S ACTION UNDER 28 U.S.C. § 1343

In Hatfield v. Bailleaux, 9 Cir., 290 F.2d 632, certiorari denied in 368 U. S. 862, 82 S.Ct. 105, 7 L.Ed.2d 59 the Court said:

"It will be noted that under this provision 28 U.S.C. 1343 a district court has jurisdiction only to the extent that civil actions to redress the rights referred to therein have been `authorized by law.' It is therefore necessary to look elsewhere to ascertain what civil actions for the redress of these rights have been authorized by law."

THIS COURT HAS NO JURISDICTION OF THE PLAINTIFF'S ACTION UNDER 42 U.S.C. § 1983 (FORMERLY 42 U.S.C. § 43)

As stated, the plaintiff alleged in his complaint that the defendants acted under the color of authority of the United States.

42 U.S.C. § 1983 confers jurisdiction upon the Federal Courts of suits against persons charged with depriving claimants of Constitutional rights while acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory".

In Norton v. McShane, 5 Cir. (1964), 332 F.2d 855, the Court upheld the immunity of a number of Federal officials, including several United States Marshals, sued for damages for false arrests. The Court said:

"As Judge Hand stated in the Gregoire case (referring to Gregoire v. Biddle, 177 F.2d 579, 2 Cir. 1949, cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363), Section 43 (the precursor of Section 1983) is so plainly limited to acts done under color of some state or territorial law or ordinance that no discussion can make it clearer than appears from its reading."

To the same effect is Jobson v. Henne, 355 F.2d 129 (2 Cir. 1966), wherein the Court stated:

"In suits brought under § 1983 an indispensable element of a plaintiff's case is a showing that the defendant (or defendants) acted `under color of any statute, ordinance, regulation, custom, or usage, of any State * * *.'"

THIS COURT HAS NO JURISDICTION OF THE PLAINTIFF'S ACTION UNDER 28 U.S.C. § 1331(a)

28 U.S.C. § 1331(a) provides as follows:

"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."

To come within that section, the plaintiff must show that his action arises under the Constitution or laws of the United States.

As hereinabove stated, the plaintiff in his complaint alleges violation of his Constitutional rights, without designating the particular section or sections of the Constitution he relies upon. It would seem that he bases his claim upon the Fourth Amendment in that he alleges that the defendants conducted an unlawful search and seizure of his property. The said Amendment provides that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause * * *."

A leading case is Bell v. Hood, 9 Cir. (1945), 150 F.2d 96. It appears therein that the plaintiff instituted his action against officers of the Federal Bureau of Investigation and a local policeman to recover damages for unlawful arrest, search and seizure in violation of the Fourth and Fifth Amendments and that the district court dismissed the complaint for want of jurisdiction.

The said Circuit Court, in affirming the order of the district held that the action did not arise under the Constitution or laws of the United States in the sense that Congress used that expression in 28 U.S.C. § 41 (the forerunner of 28 U.S.C. § 1331(a).

The Supreme Court granted certiorari, 326 U.S. 706, 66 S.Ct. 98, 90 L.Ed. 417. After hearing argument, the Court handed down an opinion, reported in 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, wherein it remanded the action to the District Court, stating, in part, as follows:

"Before deciding that there is no jurisdiction, the district court must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover under the Constitution and laws of the United States. * * * Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.

* * * * * *

"The issue of law is whether federal courts can grant money recovery for damages said to have been suffered as a result of federal officers violating the Fourth and Fifth Amendments. That question has never been specifically decided by this Court."

The opinion of the District Court on remand of the said action (Bell v. Hood) is reported in 71 F.Supp. 813 (1947). The Court therein said:

"History is clear that the first ten Amendments to the Constitution were adopted to secure certain common-law rights of the people against invasion by the Federal Government. * * * The right to be free from unreasonable searches and seizures is a common-law right. * * * Thus the Fourth Amendment did not create a new right, but merely gave a pre-existing common-law right constitutional protection from * * * invasion by the Federal Government.

"Accordingly, the Fourth and Fifth Amendments do not limit state or individual action, but only federal action. * * * As was said in Feldman v. United States, 1944, 322 U.S. 487, 490, 64 S.Ct. 1082, 88 L.Ed. 1408 * * * `for more than one hundred years * * * one of the settled

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