Croy v. Skinner, Civ. A. No. 75-1077.

• Decision Date: 12 February 1976
• Docket Number: Civ. A. No. 75-1077.
• Citation: 410 F. Supp. 117
• Parties: James A. CROY v. Berto H. SKINNER et al.
• Court: U.S. District Court — Northern District of Georgia

410 F. Supp. 117

James A. CROY v. Berto H. SKINNER et al.

Civ. A. No. 75-1077.

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

February 12, 1976.

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Charles W. Field, Hylton B. Dupree, Jr. & Barry Staples, Marietta, Ga., Bobby Lee Cook, Summerville, Ga., for plaintiff.

John E. Talmadge, Atlanta, Ga., R. P. Campbell, John P. Howell, Covington, Ga., George H. Carley, Decatur, Ga., W. D. Ballard, Covington, Ga., Arthur K. Bolton, Atty. Gen., Ben Kingree, Paul Webb, Jr., Thomas L. Murphy, Atlanta, Ga., for defendants.

ORDER

RICHARD C. FREEMAN, District Judge.

Plaintiff, no stranger to this court,¹ has filed this action for monetary relief as a result of defendants' alleged violation of his constitutional rights. Plaintiff also seeks relief, under theories of pendent jurisdiction, for alleged violation of his state constitutional, statutory, and common law rights. Jurisdiction is predicated upon certain of the civil rights statutes, 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. § 1343, and federal question jurisdiction, 28 U.S.C. § 1331. Defendants are several private individuals and corporate entities, who will hereinafter generally be referred to as the "private defendants", as well as several state law enforcement, prosecutorial, and judicial officials, who will hereinafter generally be referred to as the "state defendants." The action is presently before the court on motions to dismiss filed on behalf of the private defendants and certain of the state defendants and a motion to strike the amended complaint filed on behalf of defendant Odum. Before proceeding to the merits of these various motions, some review of the salient facts appearing of record² is warranted.

The instant action is the ultimate result of a series of apparently questionable and arguably fraudulent business transactions between plaintiff and defendant Berto Skinner regarding the sale of automobiles. Although the parties have not adequately explained the background facts, apparently plaintiff had engaged in a series of purchases of automobiles from defendant B. Skinner using the sight draft method of payment. As a general rule, it appears that defendant would retain the drafts for a short period of time before presenting them to the bank. In early July, 1973, a similar transaction, involving twenty cars and two sight drafts totaling $34,625.00, was initiated; however, as alleged by plaintiff, one or both of the sight drafts was presented "prematurely" and dishonored for insufficient funds. Thereafter, defendant B. Skinner swore out two warrants, Nos. 8615 and 8676, dated July 23, 1973, alleging in substance that "Croy stated the drafts were good. . . . but the drafts were not good." Plaintiff was subsequently arrested and indicted by the Newton County, Georgia, Grand Jury for violation of Ga.Code Ann. § 26-1803(a) (theft by deception). Following a trial before defendant Ridgway conducted in the Superior Court of Newton County, Georgia, on April 11 and 12, 1974, plaintiff was convicted of two counts of theft by deception and sentenced to nineteen years imprisonment. On appeal, this conviction was reversed. Croy v. State, 133 Ga.App. 244, 211 S.E.2d 183 (1974).

In reversing the conviction, after reviewing the background facts, the Georgia Court of Appeals stated that the essential element of a violation of Ga.Code Ann. § 26-1803(a) requires a "deceitful representation as to `an existing fact or past event' . . .." Croy v. State, supra at 246, 211 S.E.2d at 185. As a result, the court concluded that the issue on appeal was whether the evidence showed that the defendant created the impression of an "existing false fact." Concluding that a "promise of future performance cannot serve as the basis of a subsection (a) theft by deception prosecution," id. at 246, 211 S.E.2d at 185, the Court found that the evidence showed that Croy had promised to cover the drafts when they were presented in the future and that he had not misrepresented the fact that he had sufficient funds to cover the drafts on their issue date. This conclusion, however, was not reached without some reluctance:

The district attorney pointed out the flimflam nature of defendant's operations . . .. He also emphasizes defendants' four felony convictions in various Federal courts. We recognize this deplorable state of affairs . .. but our information concerning the accused must not lead us to decide cases except in accordance with applicable legal principles. As was said . . . in People v. Gitlow, 234 N.Y. 132, 136 N.E. 317: "Although the defendant may be the worst of men . . . the rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected." This sentiment was echoed . . . in Grace v. State, 231 Ga. 113, 128, 200 S.E.2d 248, 258, thusly: "The rights of the best among us are in jeopardy if we fail to protect the rights of the worst among us."

Id. at 248, 211 S.E.2d at 186.

In essence, plaintiff alleges that the various defendants in this action conspired to violate his state and federal rights. Plaintiff alleges several statutory and constitutional violations throughout his complaint; however, these allegations vary somewhat depending on the identity of the defendants. In general, plaintiff alleges that the private defendants conspired to falsely accuse him of theft by deception and to procure his false arrest. More specifically, plaintiff alleges that defendants David Skinner and Robert Scott, employees of the defendant C&S National Bank (hereinafter the "Bank" defendants), threatened to ruin plaintiff's personal and business reputation by having him arrested as a result of nonpayment of the sight drafts. Referring to the above-mentioned warrants, plaintiff alleges that "Berto H. Skinner, his brother David and brother in-law sic Henry Odum, Jr., embarked upon a conspiracy to maliciously damage the plaintiff by destroying his financial standing, reputation and family life, copy of said false affidavit . . . is attached hereto . . .." By amended complaint, plaintiff alleges that defendant David Skinner "injected" himself into the conspiracy by having the sight drafts sent to the Avondale Estates branch of the C&S Bank, rather than the East Point Branch on which they were drawn and conspired with defendant Scott to "prevent" the drafts from going to the East Point Branch.³ In this amendment, plaintiff alleges that defendant Scott testified at the criminal trial, but failed to collect his witness fee, alleging also that defendant Scott "maliciously and unlawfully" conspired "to cause said Berto H. Skinner unlawfully to swear out warrants against the Plaintiff . . .." In summation, plaintiff sets forth the following allegations concerning the Bank defendants, as well as certain of the other defendants:

Plaintiff shows that before October 11, 1973, Defendants Berto H. Skinner, Henry Odum, Jr., David W. Skinner, Robert A. Scott, The Citizens and Southern National Bank, John T. Strauss, District Attorney, and Judge Thomas W. Ridgeway . . . knew that the warrants sworn out by Defendant Berto H. Skinner against Plaintiff which charged Plaintiff with Theft by Deception were false, null and void, and they further knew that said warrant should never have been sworn out . . . because they knew no crime had been committed under the laws of the State of Georgia by Plaintiff and that said Defendants knew further that if Plaintiff was acquitted on said false charges they would be held legally responsible to Plaintiff in a civil action for false arrest and false imprisonment.

Before turning to the allegations of the complaint dealing with the other named defendants,⁴ it is appropriate to resolve the question of whether the above allegations state a claim for relief against the Bank defendants cognizable in this court.

THE BANK DEFENDANTS' MOTION TO DISMISS

In support of their motion to dismiss, the Bank defendants argue generally that they are private citizens, not amenable to suit under federal civil rights and constitutional principles which require the actions complained of to be performed "under color of state law." Arguing that liability of private persons under 42 U.S.C. §§ 1983 and 1985 must be predicated on a conspiracy or concerted action between the private defendants and state officials, see, e.g., United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Fulton v. Emerson Electric Co., 420 F.2d 527, 530 (5th Cir. 1969), defendants state that the factual assertions in the complaint fail to show that D. Skinner and Scott were acting in concert with any state officials. Defendants also contend that conclusory allegations of conspiracy are insufficient to set forth a cause of action, arguing that the naked allegations of the complaint fail to set forth sufficient "highly specific facts" showing that plaintiff is entitled to relief. As a final matter, the defendant C&S Bank argues that it is not a "person" amenable to suit under the civil rights acts, arguing alternatively that it may not be held vicariously liable for the misconduct of its employees in any event.

Under the Civil Rights Statutes, the subtle concepts of "state action" or "under color of state law" and the question of who is a "person" amenable to suit are in effect merely different sides of the same coin. No doubt, however, defendants are apparently aware of the seminal opinion of the Supreme Court in City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), ruling that a municipality is not a "person" amenable to suit under 42 U.S.C. § 1983. Thus, without citing any authority, defendants apparently assume that only natural persons are amenable to suit under § 1983. This assumption is wholly incorrect. Although the Bruno case has spawned innumerable progeny dealing with the "person" issue, see, e. g., Adkins v. Duval County School Board, 511 F.2d 690 (5th Cir. 1975) (School...