Ginter v. Stallcup

• Citation: 641 F. Supp. 939
• Decision Date: 11 June 1986
• Docket Number: No. LR-C-85-381.,LR-C-85-381.
• Parties: Norma GINTER, Plaintiff, v. James STALLCUP, Individually and in his official capacity, Lawrence County, Arkansas, James Blasingame, Jack Knox, Boone County, Arkansas, Tom Lee, City of Ravenden, Arkansas, and Roy Norvell, Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

641 F. Supp. 939

Norma GINTER, Plaintiff, v. James STALLCUP, Individually and in his official capacity, Lawrence County, Arkansas, James Blasingame, Jack Knox, Boone County, Arkansas, Tom Lee, City of Ravenden, Arkansas, and Roy Norvell, Defendants.

No. LR-C-85-381.

United States District Court, E.D. Arkansas, W.D.

February 24, 1986.

On Motion to Dismiss March 6, 1986.

Supplemental Memorandum and Order June 11, 1986.

COPYRIGHT MATERIAL OMITTED

Michael Louis Minns, Atty. At Law, Katy, Tex., for plaintiff.

Jeffrey A. Bell, Deputy Atty. Gen., Little Rock, Ark., for James Stallcup.

David H. White, No. Little Rock, Ark., for Tom Lee and City of Ravenden, Ark.

Dick Jarboe, Ponder & Jarboe, Walnut Ridge, Ark., for Lawrence County, Ark.

MEMORANDUM AND ORDER

EISELE, Chief Judge.

The defendants, James Blasingame and Jack Knox, agents for the Federal Bureau of Investigation, have moved to dismiss the complaint against them pursuant to Rule 12 and Rule 4 of the Federal Rules of Civil Procedure. They moved for dismissal essentially on the seven grounds set forth in their prayer, to wit:

1. Plaintiff has not satisfied the technical requirements of service of process of Rule 4, Fed.R.Civ.P.

2. The complaint should be dismissed for failure to comply with Rule 8(a), Fed.R.Civ.P., and because it fails to state a claim upon which relief can be granted as concerns a Bivens -type action or a Title 42, U.S.C., Section 1983 or 1985 suit.

3. The complaint should be dismissed as plaintiff lacks standing to assert the claim and is not the real party in interest.

4. The complaint should be dismissed as Title 42, U.S.C., Section 1983 is not applicable to Federal officials.

5. The F.B.I. defendants are entitled to immunity.

6. The F.B.I. defendants cannot be held liable on a theory of respondeat superior.

7. Plaintiff's claim is barred by the doctrine of collateral estoppel.

The Court agrees with the plaintiff that she has satisfied the technical requirements of service of process of Rule 4 in the light of the record that is before the Court.

In plaintiff's response to the motion to dismiss, plaintiff asserts that it has stated the following claims under which relief can be granted:

1. Destruction of personal property by acts of arson by federal and state officials;

2. False imprisonment;

3. Malicious prosecution;

4. Denial of her U.S. Constitutional Right to consult her attorney;

5. Denial of her U.S. Constitutional Right to a fair trial; and

6. Severe mental anguish due to all of the above.

In resisting the defendants Blasingame and Knox's motion to dismiss any Bivens -type action, plaintiff states that her claims are more substantial than those in Bivens; that she suffered more humiliation by being arrested in the presence of her family; that she was falsely accused, arrested, imprisoned, poorly treated, forced to watch the distruction of irreplaceable accumulated possessions of her lifetime, and forced to observe her husband's anguish.

The Court has carefully examined plaintiff's original complaint to identify the factual allegations that relate to the defendants James Blasingame and Jack Knox, agents of the Federal Bureau of Investigation. Paragraphs I-III do not mention any of the defendants by name. The allegations in those paragraphs and in paragraph IV charge that on June 3, 1983, the home in which plaintiff had been living "was set on fire by the activities of numerous defendants" while the defendants "were attempting to capture the fugitive Gordon Wendell Kahl." Plaintiff claims that her "personal possessions including but not limited to, clothing, furniture, food, family heirlooms, and pictures of children were destroyed by the alleged acts of arson," which acts were "premeditated." Paragraph VI states:

The operation was under the control of James Blasingame, the head of the F.B.I. for the entire State of Arkansas, with headquarters in Little Rock, Arkansas, where the acts complained of herein were planned and coordinated to the limited extent that they could be called coordinated.

Paragraph VII charges:

The operation was either so careless as to constitute negligence and/or reckless burning ... and/or gross negligence, inasmuch as the methods used to capture the alleged fugitive did not meet the minimum standards of conduct and procedures required of law enforcement officials; or in the alternative, it was the deliberate plan of the law enforcement officials....

The plaintiff can only assert claims personal to her and as to which she has standing to sue. Paragraphs VIII, IX and X, (with the exception of the references to the destruction of her personal property in paragraph X) raise issues that the plaintiff has no standing to raise and may be ignored for the purpose of the motions under consideration.

Paragraph I under the caption "CIVIL RIGHTS JURISDICTION" states:

The civil rights of the Plaintiff have been violated pursuant to 42 U.S.C. 1983 statutes and must be litigated in Federal Court. After her apprehension and arrest by James Stallcup while she was in the custody of Sheriff Roy Norwell of Boone County during her trial in the harboring case (in which she was represented by Court appointed counsel, Charlie Karr) she was denied access to the undersigned, her attorney of record in her capital murder case.

Paragraph I under the caption "CONSTITUTIONAL RIGHTS" charges that the prosecuting attorney, James Stallcup, conspired with other officials "to date unknown" to deny plaintiff certain of her rights. The defendants, Blasingame and Knox, are in no way mentioned or implicated in these allegations. Under the caption "FACTUAL ALLEGATIONS" there are six separate paragraphs. Paragraph II repeats that:

"all worldly possessions of the Plaintiff were destroyed either by the negligent and/or grossly negligent acts or omissions of the parties complained of herein....

Paragraph III provides:

"James Blasingame, the highest law enforcement official of the United States Government present and (others) ... jointly governed the conduct of all persons present, or in the alternative, neglected to fullfill their responsibilities as law enforcement officials to properly supervise the scene. The conspiracy was in part organized and planned by F.B.I. agent, Jack Knox, code named "Fort Knox".

It is interesting to note that the last sentence quoted contains the only specific reference in the complaint to Jack Knox other than the allegation as to his residence address. Paragraph IV contains the following sentence:

A conspiracy of conspirators including but not limited to, the Defendants cited herein arose to leave Norma Ginter to face the charges for the death of the fugitive and the Sheriff ... to protect the illegal personal interests of the Defendants.

Paragraph V appears to complain about rights denied to Norma Ginter in connection with the state charge of capital murder. Its allegations cannot fairly be read to implicate the defendants Blasingame or Knox. Paragraph VI complains about the actions of James Stallcup.

Under the caption "DAMAGES," plaintiff states, inter alia:

She suffered the loss of all of her life time personal possessions which had a fair market value of not less than FIVE THOUSAND DOLLARS ($5,000.00)....

The Court has attempted to identify the factual allegations which might, when viewed in the light most favorable to the plaintiff, state some claim or claims upon which relief might be granted against defendants Blasingame and Knox.

The defendants Blasingame and Knox have also filed an alternative "motion for summary judgment" contending that there is no genuine issue of material fact which would preclude the entry of summary judgment in their favor as a matter of law. In support of their motion for summary judgment, they have submitted the following:

Exhibit 1: Affidavit for search warrant with attachments including a copy of the F.B.I. "WANTED" poster on Gordon Wendell Kahl.

Exhibit 2: Statement of James T. Blasingame.

Exhibit 3: Statement of Jack D. Knox.

Exhibit 4: The Motion to Suppress Illegally Obtained Evidence filed in the case of U.S.A. v. Leonard Ginter and Norma Ginter, Western District of Arkansas No. 83-3009, on August 19, 1983, on behalf of Leonard and Norma Ginter, together with an unsigned copy of the "order on motion to suppress" in the same case.

Exhibit 5: Defendants' Memorandum of Law in Support of Motion to Suppress filed August 8, 1983, on behalf of Leonard and Norma Ginter, among others.

Exhibit 6: Memorandum Opinion filed September 29, 1983, of the Honorable H. Franklin Waters, discussing and disposing of some nine different motions including the Motion to Suppress Illegally Seized Evidence and the motion of the Ginters to suppress incriminating statements.

Exhibit 7: The order of Judge Waters filed September 29, 1983, which, inter alia, denied the Ginters' Motion to Suppress Illegally Seized Evidence and their motion to suppress incriminating statements.

Exhibit 8: This Court's Memorandum and Order, filed March 13, 1984, in the case of Stephens v. Richard Burgess, et al, discussing, inter alia, the case of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959).

The plaintiff has filed a response to the motion for summary judgment filed by Blasingame and Knox with a brief in support thereof. Her response is supplemented by various exhibits as follows:

Exhibit A: A photocopy of pages 1217-1230 of certain discussions between court and counsel including an offer of proof.

Exhibit B: The testimony of one Thomas David Lee.

The plaintiff has also filed a "Supplemental Response" to the defendants' Motion for Summary Judgment to which she attaches the following exhibits:

Exhibit C: Affidavit of the plaintiff, Norma Ginter.

Exhibit D: Excerpts from the testimony of Mr. Dero Downing.

Exhibit E: Affidavit of Roy Jessie Paul.

On October 23, 1985, the defendants, Blasingame and Knox, filed a "Response to Plaintiffs' Response" to the Motion for Summary Judgment. And on ...