Deary v. Evans

• Citation: 570 F. Supp. 189
• Decision Date: 06 June 1983
• Docket Number: Civ. No. 1980/289,1981/26.
• Parties: Celeste R. DEARY, Plaintiff, v. Joseph EVANS, et al., Defendants. Celeste R. DEARY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Virgin Islands

570 F. Supp. 189

Celeste R. DEARY, Plaintiff, v. Joseph EVANS, et al., Defendants.

Celeste R. DEARY, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. Nos. 1980/289, 1981/26.

District Court, Virgin Islands, D. St. Thomas and St. John.

June 6, 1983.

COPYRIGHT MATERIAL OMITTED

Alexander Farrelly, Charlotte Amalie, St. Thomas, V.I., for plaintiff.

Andrew Capdeville, Charlotte Amalie, St. Thomas, V.I., for defendants Evans, Tuckett, Turnbull and Hodge.

Roger Campbell, Charlotte Amalie, St. Thomas, V.I., for defendant Campbell.

Daryl Barnes, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V.I., for Government of the Virgin Islands.

James Carroll, Asst. U.S. Atty., Peter A. Nowinski, Sp. Asst. U.S. Atty., U.S. Dept. of Justice, Charlotte Amalie, St. Thomas, V.I., for defendants Patton and U.S.

MEMORANDUM OPINION AND ORDER

O'BRIEN, District Judge.

Plaintiff has brought two actions for damages against various law enforcement officials, the Virgin Islands Government and the U.S. Government for an incident that stemmed from a bank robbery in St. Thomas in 1978. The first action, Civil No. 1980/289, is brought pursuant to 42 U.S.C. §§ 1983, 1985(2) and (3), and common law tort where the plaintiff alleges that her Fourth Amendment, Revised Organic Act, and common law rights were violated. She alleges that she was unlawfully arrested and detained by defendant law enforcement officers when they wrongfully suspected her as the perpetrator of the robbery that had occurred three days prior to her arrest.

The second action, Civil No. 1981/261, is brought only against the U.S. Government pursuant to the Federal Tort Claims Act ("F.T.C.A."), 28 U.S.C. §§ 1346(b), 2671-2680. Plaintiff alleges in this action that the Federal Bureau of Investigation agent, defendant Raimon Patton, an agent of the U.S. Department of Justice, orchestrated the alleged events, and, therefore, the U.S. Government is liable for damages under the F.T.C.A. Plaintiff alleges the common law torts of false arrest, false imprisonment, malicious prosecution, abuse of process, and intentional emotional distress in this action and in the first action. All the defendants in both actions have denied the allegations made by the plaintiff. All have now moved for dismissal of the cases based upon either plaintiff's failure to state a claim upon which relief can be granted or upon summary judgment on the ground of qualified immunity.¹ The Court finds that, based on the circumstances of this case, the defendants' motions will be granted and the two cases dismissed.

I.

In order for this Court to grant a motion to dismiss under Fed.R.Civ.P. 12(b)(6), there must be no circumstance under which the plaintiff is entitled to any relief. Scott v. Plante, 532 F.2d 939, 945 (3d Cir.1976). For summary judgment to be granted, there must be no issue as to any material fact and the movant is entitled to judgment as a matter of law. The Court of Appeals for the Third Circuit has established this standard:

Summary judgment may only be granted if, taking the non-movant's allegations as true and drawing all inferences in his favor, the court is convinced from its review of the evidential sources available that no genuine issue as to a material fact remains for trial, and that the moving party is entitled to judgment as a matter of law.

Scott, supra, 532 F.2d at 945.

The facts leading up to the arrest of the plaintiff are basically not in dispute. On August 1, 1978, the First National City Bank, now known as Citibank, in downtown Charlotte Amalie was robbed by a black female whose picture was taken by the bank's surveillance camera. One of those photographs was printed in the local newspaper and at least one of the alleged arresting officers had used the newspaper reprint to make a comparison with the plaintiff prior to the alleged arrest. Both the Investigation Bureau of the V.I. Department of Public Safety and the Federal Bureau of Investigation ("F.B.I.") investigated the crime. No information was ever filed by the U.S. Attorney's Office against the plaintiff in this matter and the actual robber was apprehended some months later.

Specifically, the plaintiff alleges the following facts: On the morning of August 4, 1978, sometime between 8:15 and 8:30 a.m. while jogging to work in jogging shoes, the plaintiff was followed by an unmarked police vehicle. Shortly thereafter, two men exited the car, followed by another on foot and they backed plaintiff against a wall of the C & M Caron building, a business establishment on Main Street. The officers firmly guided her into the rear seat of the car and took her to police headquarters. She was read her constitutional rights.² She was then delivered to defendant Bruce Campbell, a sergeant in the Investigation Bureau.

At police headquarters, plaintiff was placed in a room where she was then interrogated by defendants Hugo Hodge, Acting Chief of the Investigation Bureau of the V.I. Department of Public Safety, and his subordinate, Sergeant Bruce Campbell, under the direction of or in association with F.B.I. agent Raimon Patton. Defendants Hodge, Campbell and Patton all participated in the interrogation and "booking" of plaintiff. These processes were carried out with threats, accusations, and hostility in which they demanded that the plaintiff "own up" to having robbed the bank. The hostile interrogation, which lasted over an hour, was conducted despite the fact that plaintiff informed them of her wish not to be questioned without a lawyer.

Hours after plaintiff had been held "incommunicado", that same day, defendants Campbell and/or Hodge caused plaintiff to be taken to the District Court at around 5 p.m. where she was informed of the pending bank robbery charges. She was requested by the Court to give a handwriting sample which she did. She was released on bail subject to reporting weekly to the U.S. Marshal's Office. Failure to report timely on plaintiff's part would have promptly precipitated her re-arrest. Two months after the arrest, the charges against plaintiff were dismissed because the defendants knew or had reason to know that someone else had robbed the bank "and because there was no basis whatever for further prosecution". Plaintiff's Memorandum of Law in Opposition to Defendant Campbell's Motion for Summary Judgment at 3.³

There are a number of disputes as to the facts. All or some of the parties contest that there was an arrest of the plaintiff. Defendants Joseph Evans, Edwin Turnbull, Rupert Tuckett and Hugo Hodge, however, for the purposes of their summary judgment motion only, are not contesting that the plaintiff was arrested on Main Street on August 4, 1978. Also contested is the involvement of the higher ranking law enforcement officers who questioned and "processed" plaintiff after her arrest.⁴ There is also a dispute as to whether defendant Patton, as an F.B.I. agent, was working under the auspices of the V.I. Government, the U.S. Government, or both.⁵ The critical question raised on the motions is whether any of the defendants are entitled to assert qualified immunity or good faith immunity defenses, and, therefore, can the case be dismissed against them as a matter of law. The Court finds that these factual disputes are not material as to this issue. The Court, therefore, adopts the facts as set out by the plaintiff, taking all the allegations as true.⁶ The Court will now address the pending motions separately.

II.

A. The Arresting Officers

Defendants Evans, Turnbull, and Tuckett, the three officers who arrested plaintiff, argue that they have timely asserted the affirmative defense of qualified immunity in their answers, have shown there were no constitutional violations, and, therefore, the case should be dismissed against them, citing to Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and Saldana v. Garza, 684 F.2d 1159 (5th Cir.1982). Plaintiff argues that the qualified immunity defense in Harlow applies only to high government officials who exercise discretion in the course of their employment. Police officers, it is argued, are neither high government officials nor do they exercise discretion during the course of their employment.

Harlow involved a suit against two Presidential aides for an alleged conspiracy to dismiss from employment another Presidential aide. The Supreme Court held:

that government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

Harlow, supra, 457 U.S. at 818, 102 S.Ct. at 2738 (emphasis added). The Supreme Court discussed at length the two-prong test of Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975) which held that qualified immunity would be defeated under either a subjective or objective test. In other words, the defense would be defeated if the official "`knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff or if he took action with malicious intention to cause a deprivation of constitutional rights or other injury ...'" Harlow, supra, 457 U.S. at 815, 102 S.Ct. at 2737 quoting from Wood, supra, 420 U.S. at 321-322, 95 S.Ct. at 1000-1001 (emphasis added in Harlow). In effect, the Court eliminated the subjective good faith test, to allow disposition of the issue of qualified immunity by summary judgment. As the Court further stated:

Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.

Harlow, supra, 457 U.S. at 818, 102 S.Ct. at 2739 (footnote omitted).

The Court of Appeals for the Fifth Circuit has applied Harlow to...