Bivens v. 6 UNKNOWN NAMED AGENTS OF FED. BUR. OF NARCOTICS, No. 67-C-655.

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtBRUCHHAUSEN
Citation276 F. Supp. 12
PartiesWebster BIVENS, Plaintiff, v. 6 UNKNOWN NAMED AGENTS OF the FEDERAL BUREAU OF NARCOTICS, Defendants.
Decision Date24 November 1967
Docket NumberNo. 67-C-655.

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.


276 F. Supp. 13

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,

276 F. Supp. 14
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...

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11 practice notes
  • Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, No. 301
    • United States
    • United States Supreme Court
    • June 21, 1971
    ...District Court, on respondents' motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action.2 276 F.Supp. 12 (EDNY 1967). The Court of Appeals, one judge concurring specially,3 affirmed on that basis. 409 F.2d 718 (CA2 1969). We granted certiorari. 3......
  • Binette v. Sabo, No. 15547
    • United States
    • Supreme Court of Connecticut
    • March 10, 1998
    ...Bureau of Narcotics, supra, 403 U.S. at 389-90, 91 S.Ct. at 2001; see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F.Supp. 12 (E.D.N.Y.1967), aff'd, 409 F.2d 718 (2d Cir.1969), rev'd, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In response to the defendants......
  • Brault v. Town of Milton, No. 555
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 1, 1975
    ...jurisdictional statement as creating the cause of action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F.Supp. 12, 13 (E.D.N.Y.1967). This provision was obviously inapplicable, however, for its scope is very expressly limited to deprivations of federal rights u......
  • Smallwood v. United States, Civ. No. 72 C 635(A).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • April 23, 1973
    ...under the Fourth Amendment; and (2) even if there is such a right of action, Defendants, being federal agents, are immune from suit. 276 F.Supp. 12 (1967). The Court of Appeals for the Second Circuit affirmed on the basis of the first ground not mentioning the immunity question. 409 F.2d 71......
  • Request a trial to view additional results
11 cases
  • Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, No. 301
    • United States
    • United States Supreme Court
    • June 21, 1971
    ...District Court, on respondents' motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action.2 276 F.Supp. 12 (EDNY 1967). The Court of Appeals, one judge concurring specially,3 affirmed on that basis. 409 F.2d 718 (CA2 1969). We granted certiorari. 3......
  • Binette v. Sabo, No. 15547
    • United States
    • Supreme Court of Connecticut
    • March 10, 1998
    ...Bureau of Narcotics, supra, 403 U.S. at 389-90, 91 S.Ct. at 2001; see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F.Supp. 12 (E.D.N.Y.1967), aff'd, 409 F.2d 718 (2d Cir.1969), rev'd, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In response to the defendants......
  • Brault v. Town of Milton, No. 555
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • October 1, 1975
    ...jurisdictional statement as creating the cause of action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 276 F.Supp. 12, 13 (E.D.N.Y.1967). This provision was obviously inapplicable, however, for its scope is very expressly limited to deprivations of federal rights u......
  • Smallwood v. United States, Civ. No. 72 C 635(A).
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • April 23, 1973
    ...under the Fourth Amendment; and (2) even if there is such a right of action, Defendants, being federal agents, are immune from suit. 276 F.Supp. 12 (1967). The Court of Appeals for the Second Circuit affirmed on the basis of the first ground not mentioning the immunity question. 409 F.2d 71......
  • Request a trial to view additional results

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