Fisher v. U.S.

• Decision Date: 01 April 1992
• Docket Number: No. 91-1439,91-1439
• Citation: 959 F.2d 230,1992 WL 63516
• Parties: NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. David H. FISHER, Plaintiff, Appellant, v. UNITED STATES OF AMERICA, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 230

959 F.2d 230

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases.

David H. FISHER, Plaintiff, Appellant, v. UNITED STATES OF AMERICA, et al., Defendants, Appellees.

No. 91-1439.

United States Court of Appeals First Circuit.

April 1, 1992

David H. Fisher on brief pro se.

Wayne A. Budd, United States Attorney, and Mary Elizabeth Carmody, Assistant United States Attorney, on brief for appellee.

Before Torruella, Circuit Judge, Campbell, Senior Circuit Judge, and Cyr, Circuit Judge.

Per Curiam.

Pro se plaintiff-appellant David Fisher appeals from a district court judgment dismissing his complaint for damages alleged to have resulted from his wrongful arrest and indictment on drug charges. The complaint named as defendants New Jersey Assistant United States Attorney Jeremy Frey, Drug Enforcement Administration (DEA) agent Steven Morreale, and DEA informant Mario Alvarez. Fisher alleged, essentially, that Alvarez deliberately and maliciously lied in telling the DEA and a grand jury that he, Fisher, had purchased cocaine in 1981; that Agent Morreale negligently relied only on Alvarez's information in seeking Fisher's arrest, and that Frey deliberately and maliciously held Fisher under indictment after acquiring reason to believe that Fisher had been wrongfully arrested.

In five separate orders issued between 1989 and 1991, the district court dismissed Fisher's claims against the individual defendants on a variety of grounds, substituted the United States as a defendant for Agent Morreale under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2679(d)(1), and dismissed Fisher's tort claim against the United States for lack of timely presentment under the FTCA. Fisher challenges each decision on appeal. We affirm.

I.

We have reviewed the record and conclude that the district court properly dismissed Fisher's claim against Prosecutor Frey on the ground that Frey was entitled to absolute immunity. Fisher alleged that Frey failed to dismiss the charges against him after acquiring reason to believe that Fisher had been wrongfully arrested. Frey allegedly continued to prosecute Fisher only to preserve the credibility of the informant, Alvarez, who was a key witness in the trial of other drug defendants. As Frey's alleged wrongdoing was undertaken in the performance of his advocatory function, he is entitled to absolute immunity. See Burns v. Reed, 111 S. Ct. 1934, 1940-42 (1991); Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Siano v. Justices of Massachusetts, 698 F.2d 52, 57-58 & n.8 (1st Cir. 1983).

II.

We further conclude that the court properly dismissed Fisher's claim against Alvarez for lack of subject matter jurisdiction. Fisher alleged that Alvarez lied to the DEA and the grand jury and that this resulted in Fisher's wrongful arrest and indictment. Such conduct was not sufficient to render Alvarez a government actor under Bivens v. Six Unknown Named Agents of Fed. Narcotics Burea u, 403 U.S. 389 (1971). While Alvarez was paid for his information and ultimately placed in the Witness Security Program, these factors do not establish that Alvarez was so subject to government control when he informed the DEA of Fisher's alleged drug dealing as to be a government actor. Compare United States v. Cella, 568 F.2d 1266, 1282 (9th Cir. 1977) (where hospital employee involved in misappropriating funds agreed to become informant after being arrested on unrelated charges, employee was government actor when he thereafter obtained documents incriminating defendants for authorities); Matje v. Leis, 571 F. Supp. 918 (S.D. Ohio 1983) (tacit acquiescence of police in drug informant's alleged misconduct presented genuine issue of material fact whether informant acted under color of state law while participating in police investigation). " 'It is the nature of the act performed, not the clothing of the actor or [, if the actor is a police officer,] even the status of being on duty, or off duty which determines whether the officer has acted under color of law.' " Stengel v. Belcher, 522 F.2d 438, 441 (6th Cir. 1975),(quoting Johnson v. Hackett, 284 F. Supp. 933, 937 (E.D. Pa. 1968)). Under this test, the nature of Alvarez's alleged wrong lying to the DEA and the grand jury -is not sufficient to render Alvarez a government actor for Bivens purposes. To hold otherwise would render all those who report information in return for rewards government actors. ¹

III.

Fisher alleged that Agent Morreale negligently relied on information provided by Alvarez in procuring Fisher's arrest without probable cause. Both the government and the district court initially treated Fisher's complaint as sufficient to state a claim against Agent Morreale under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 389 (1971). Thereafter, in response to the government's motion to dismiss Agent Morreale and substitute the United States as a defendant under the Federal Tort Claims Act (FTCA), the court ruled that the complaint failed to state a claim under Bivens and dismissed Agent Morreale as an individual defendant. Fisher's case proceeded against the United States under the FTCA.

We think that the court dismissed Agent Morreale prematurely. The Supreme Court has ruled that the remedies provided by Bivens and the FTCA are complementary, not mutually exclusive. See Carlson v. Green, 446 U.S. 14, 18-23 (1980). Where the government and the district court initially treated Fisher's complaint as sufficient under Bivens, it was error to dismiss Fisher's Bivens claim against Agent Morreale upon substituting the United States as a defendant for Morreale under the FTCA. Under Carlso n, Fisher was entitled to proceed against the United States on his FTCA claim and against Morreale individually on his Bivens claim.

Nevertheless, we affirm the dismissal of Fisher's Bivens claim against Agent Morreale because the record establishes that Morreale is entitled to qualified immunity. "Seeking an arrest warrant is 'objectively reasonable' so long as the presence of probable cause is at least arguable." Prokiey v. Mathews, 942 F.2d 67, 72 (1st Cir. 1991), (citing Floyd v. Farrell, 765 F.2d 1, 5 (1st Cir. 1985)). "To be 'arguable' under Floyd means that it is possible for 'officers of reasonable competence' to fairly disagree over whether probable cause exists ... The presence of probable cause would not be 'arguable' if no reasonably competent officer would have found probable cause." Prokiey, 942 F.2d at 72 n.4 (citations omitted).

The record establishes that Alvarez was a drug dealer of some repute known to the Elizabeth, New Jersey police department. Between 1977 and 1982, Alvarez was a member of a drug ring headed by a known kingpin, Carlos Fernandez. In 1981, Alvarez was arrested by the Kenilworth, New Jersey police. Among his personal effects were various business cards, including that of plaintiff, Fisher, who was then employed by the Sheraton-Boston Hotel. Alvarez was arrested again in 1983. While serving a sentence for assault, he volunteered information to the authorities about the Fernandez drug ring. Morreale ascertained that Alvarez was familiar with the comings and goings of Fernandez. As a result, the DEA and the New Jersey police formed a task force to investigate Fernandez between August 1984 and June 1985. Alvarez was periodically taken from jail and debriefed. During one of these debriefing sessions, Alvarez reviewed photocopies of the business cards that had been taken from him after his 1981 arrest. He identified Fisher's card and told Morreale that Fisher purchased cocaine that Alvarez delivered to Fernandez and others at the Sheraton in 1981. Morreale verified that Fisher worked for the Sheraton. Based on Alvarez's information, Morreale obtained a warrant for Fisher's arrest. Fisher was arrested in New York on March 15, 1985. Alvarez subsequently identified Fisher as the person who had purchased drugs at the Sheraton after reviewing a photo array. A New Jersey grand jury indicted Fisher on drug charges based on the testimony of Agent Morreale and Alvarez. Prosecutor Frey dismissed these charges without prejudice on February 16, 1986.

"Probable cause to make an arrest exists where the facts and circumstances of which the arresting officer has knowledge would be sufficient to permit a reasonably prudent person, or one of reasonable caution, to conclude that an offense has been ... committed." United States v. Cruz Jiminez, 894 F.2d 1, 4 (1st Cir. 1990). "[T]he quantum of evidence necessary to support probable cause ... is not required to rise to the level of that needed to sustain a conviction." Id.

It is undisputed that Agent Morreale procured Fisher's arrest based solely on the information provided by Alvarez in the context of the DEA's investigation of the Fernandez drug ring. While we do not decide whether this information was sufficient to establish probable cause to arrest Fisher, we think that Alvarez gave Morreale at least an arguable basis to believe that he had probable cause to arrest Fisher for possession of cocaine. Alvarez was a former member of the Fernandez drug ring and had demonstrated his familiarity with Fernandez's activities. He identified Fisher as one who purchased cocaine that Alvarez delivered to the Sheraton on behalf of Fernandez. Morreale corroborated the fact that Fisher worked at the Sheraton. To be sure, other evidence arguably undermined Alvarez's story. ² But this evidence does not compel the conclusion that probable cause was lacking. Where the record discloses that a reasonable law enforcement officer could have found probable cause to arrest Fisher based on the information provided by Alvarez, Agent Morreale is entitled to qualified immunity from Fisher's Bivens claim. ³

IV.

Fisher filed an administrative claim with the Justice Department for false arrest on June 15, 1987. Fisher was arrested on March 14, 1985. Under the Federal Tort Claims Act...