Flynn v. Dyzwilewski

Decision Date19 September 1986
Docket NumberNo. 85 C 8618.,85 C 8618.
Citation644 F. Supp. 769
CourtU.S. District Court — Northern District of Illinois
PartiesHarry B. FLYNN, Plaintiff, v. Daniel DYZWILEWSKI, Hon. George N. Leighton, Edward Hegerty, Michele Smith, Philip Turner, James DiNatale, Thomas Moore, and Edwin Meese, Attorney General of the United States, Defendants.

Harry B. Flynn, pro se.

Gail Ginsberg, Asst. U.S. Atty., Chicago, Ill., for defendants Dyzwilewski, Leighton, Hegerty, Smith, Turner and Meese.

Michael D. Sher, Andrew G. Neal, Friedman & Koven, Chicago, Ill., for defendant Moore.

Heather M. Higgins, Thomas L. Browne, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, Ill., for defendant DiNatale.

MEMORANDUM AND ORDER

MORAN, District Judge.

Plaintiff Harry Flynn was at one time an informer for the FBI. While in Cook County Jail in 1981, he apparently got wind of a plot by a fellow prisoner to have one of that prisoner's victims murdered in order to prevent the victim from testifying. He fed information on the plot to the FBI through defendant Daniel Dyzwilewski, an FBI agent. Later, however, Flynn feared that his role as an informer had been discovered. Since the prisoner about whom Flynn was passing information was a member of a gang well represented among those incarcerated in the Illinois prison system, Flynn began to fear for his personal safety. He made an arrangement with Dyzwilewski to plead guilty to a violation of 18 U.S.C. § 2314, interstate transportation of stolen goods, specifically of jewelry from a robbery in Ohio to the Chicago area. That took him out of state into federal custody. He served a few months of his four-year sentence at the Chicago Metropolitan Correctional Center (MCC) and was paroled.

Flynn's dissatisfaction with the bargain he had made did not erupt until late in 1983. Illinois authorities arrested him on charges of attempted murder. The upshot of the arrest was a revocation of his federal parole and a return to prison, this time to the federal penitentiary in Terre Haute, Indiana. Apparently Flynn regards that action as not part of the deal. His first step was to file a motion to vacate his sentence under 28 U.S.C. § 2255. He alleged that the crime of which he had been convicted was manufactured wholly for the purpose of getting him into federal custody. Agent Dyzwilewski countered that he had assured himself before the plea that ample grounds existed for believing Flynn guilty, including a description of the robber from the robbery victim in Ohio that closely matched Flynn's. Judge Leighton of this district, also a defendant in this suit, found after two days of evidentiary hearings that Flynn's plea was voluntary and that the evidence not only provided a factual basis for the charges against Flynn but also for his guilt. He denied the motion. United States v. Flynn, No. 84 C 8286 (N.D.Ill. Oct. 4, 1985). The Seventh Circuit affirmed. Flynn v. United States, 789 F.2d 919 (7th Cir.1986).

Undaunted, Flynn also filed this lawsuit, suing Judge Leighton, Agent Dyzwilewski, the director of the Chicago office of the FBI, the assistant United States attorneys who represented the Government in Flynn's conviction and Flynn's § 2255 motion, Flynn's lawyer for the § 2255 suit, his lawyer for the criminal proceeding (who testified at the § 2255 hearings), and, for good measure, Attorney General Meese. (He has since attempted to amend his complaint to include the assistant United States attorney who is representing the federal defendants in this suit.) Flynn, a white Irish male, complains, apparently in four counts (the complaint actually must be extracted from a 41-page "memorandum of law"), that all of these defendants conspired to deprive him of his civil rights in violation of 42 U.S.C. § 1985(3); that his two attorneys violated his sixth amendment rights, his attorney-client privilege, and his rights under the American Bar Association Code of Professional Responsibility; that all the defendants are liable to him under the Federal Tort Claims Act for negligently allowing him to be falsely imprisoned through a malicious prosecution; and that the defendants failed to prevent a conspiracy depriving him of his civil rights in violation of 42 U.S.C. § 1986. He seeks $6 million in compensatory damages, $4,500,000 in punitive damages, and $2,500,000 in costs.

The defendants have all moved to dismiss the action variously on grounds of immunity, failure to state a claim, collateral estoppel and improper service of process. Flynn requests appointment of counsel under 28 U.S.C. § 1915 and demands that this court recuse itself. Flynn has already gained some benefit from this suit. According to a communication to this court from Flynn, an additional criminal charge was filed against him in the U.S. District Court for the Southern District of Indiana. Flynn in response alleged that the FBI was retaliating against him for bringing this lawsuit. Judge Brooks of the Terre Haute Division of that district ordered that Flynn be transferred back to the MCC. United States v. Flynn, No. TH 86-1-CR (S.D.Ind. Apr. 1, 1986). Flynn also was apparently released from the MCC on August 6th. The reasons for that release have not been communicated to this court.

DISCUSSION
I. Recusal

The obvious threshold question here is the recusal demand, since if this court should recuse itself, it should not rule on the remaining motions. Flynn alleges that this court is biased in favor of the FBI because (1) our name was added as a respondent to a mandamus petition Flynn filed with the Court of Appeals, putting this court on the same side of the "versus" as the FBI; (2) according to Flynn, Edward Hegarty, director of the Chicago office, referred to this court with the phrase, "He's one of our judges;" (3) this court has previously ruled against Flynn on discovery motions.

We note at the outset that Flynn cannot have made a motion for recusal under 28 U.S.C. § 144. That statute expressly requires that an affidavit, setting out the facts which give rise to the belief that bias exists, accompany the motion. The procedure must be strictly complied with. See, e.g., Danielson v. Winnfield Funeral Home of Jefferson, Inc., 634 F.Supp. 1110 (E.D.La.1986). Flynn has not filed such an affidavit. We therefore treat the question on our own motion under the more general provisions of 28 U.S.C. § 455.

Flynn's concern with our presence as a respondent to his petition is of course misplaced. A writ of mandamus runs against the court; therefore, the name of the judge must appear as a respondent. As to the alleged statement of defendant Hegarty, this court has of course no idea of the context in which it was made. Nevertheless, taking Flynn's allegations as true, which we must for purposes of a recusal motion, see United States v. Meester, 762 F.2d 867, 885 (11th Cir.), cert. denied, Sawyer v. United States, 474 U.S. ___, 106 S.Ct. 579, 88 L.Ed.2d 562 (1985), they still provide no ground for recusal.

Flynn presumably is arguing that we have a predisposition generally in favor of the FBI or law enforcement. A predisposition for or against a particular class of litigants, however, is not the kind of bias that requires disqualification. Only something which would go beyond that, indicating bias against a particular litigant or in a particular case and so making a fair judgment on the merits of that case questionable, is disqualifying bias. See, e.g., United States v. Dodge, 538 F.2d 770, 782 (8th Cir.1976), cert. denied, 429 U.S. 1099, 97 S.Ct. 1119, 51 L.Ed.2d 547 (1977) (allegation of bias against Indians generally and a particular Indian organization); Samuel v. University of Pittsburgh, 395 F.Supp. 1275, 1278-1279 (W.D.Pa.1975), vacated on other grounds, 538 F.2d 991 (3rd Cir.1976) (against class action suits and suits against charitable organizations); Chessman v. Teets, 239 F.2d 205, 216 (9th Cir.1956), vacated on other grounds, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957) (against federal habeas corpus suits). The presumption is that the judge knows how to rise above his predispositions in order to render a fair decision on the facts and law of a particular case. Flynn is alleging no facts which would rebut that presumption. The same principle applies to prior rulings. See David v. Attorney General, 699 F.2d 411, 416-417 (7th Cir.), cert. denied, 464 U.S. 832, 104 S.Ct. 113, 78 L.Ed.2d 114 (1983). This court is not aware of anything which would suggest that it cannot decide this case fairly. There will be no recusal.

II. Dismissal of Improper and Immune Parties

We next address the motions to dismiss, since it would make no sense to appoint counsel in one paragraph for a case which would be summarily dismissed in the next. See, e.g., Trinkle v. Bell Litho, Inc., 627 F.Supp. 764, 766 (N.D.Ill.1986). A similar claim in which a federal prisoner alleged a conspiracy and "frame-up" by judges, a United States attorney, and defense attorneys was decided on dismissal and summary judgment motions in People ex rel. Snead v. Kirkland, 462 F.Supp. 914 (E.D. Pa.1978). We will work our way through the layers of analysis required for the various defenses as follows: first, dismissal of persons not proper parties to the suit; second, dismissal of persons absolutely immune from damages; third, the question of whether any count of the complaint states a federal claim, without which we have no jurisdiction; fourth, remaining immunity and collateral estoppel questions. The result of this analysis will be that for one or another of these reasons, each part of Flynn's complaint must be dismissed, most parts for more than one reason. Cf. Snead, 462 F.Supp. at 923.

A. Improper Party

When a complaint fails to allege facts which would indicate the personal involvement of a governmental official in the injury complained of, that official must be dismissed as a party to the suit. Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982). Flynn's complaint alleges nothing...

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