Harris v. Harvey

• Decision Date: 30 June 1977
• Docket Number: No. 75-C-612.,75-C-612.
• Citation: 436 F. Supp. 143
• Parties: Sylvester HARRIS, Plaintiff, v. Richard G. HARVEY, Jr., Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

436 F. Supp. 143

Sylvester HARRIS, Plaintiff, v. Richard G. HARVEY, Jr., Defendant.

No. 75-C-612.

United States District Court, E. D. Wisconsin.

June 30, 1977.

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Hinners & Niemann by Paul J. Gossens, Milwaukee, Wis.; Coffey & Coffey by William M. Coffey, Milwaukee, Wis., for plaintiff, of counsel.

Foley & Capwell by Rex Capwell, Racine, Wis., for defendant.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The defendant Harvey has moved for partial summary judgment dismissing several portions of the plaintiff's action. Based on the record before me, including the pleadings, affidavits, exhibits, and briefs of the parties, I believe that this motion should be granted in part and denied in part.

This is an action grounded on 28 U.S.C. §§ 1343, 1331, and 42 U.S.C. § 1983, in which the plaintiff seeks damages and equitable relief for deprivations under color of law of rights secured by the fourteenth amendment to the United States Constitution.

The action was brought against Richard Harvey, Jr., county judge for Racine County, and Gerald Clickner, the district attorney for Racine County. The plaintiff is a lieutenant with the Racine city police department and heads its community relations department. Mr. Harris is black and Judge Harvey and Mr. Clickner are white. As a result of this court's disposition of prior motions in this case, the defendant Clickner has been dismissed from this action. Harris v. Harvey, 419 F.Supp. 30 (E.D.Wis.1976).

The events that gave rise to this action began in January, 1974, when the plaintiff arrested one Dale Vorlob for attacking him with a pistol. Charges of felonious battery to a police officer were brought against Vorlob. According to the complaint, Mr. Vorlob informed district attorney Clickner of an incident which allegedly occurred shortly after Mr. Vorlob's arrest in which the plaintiff pistol whipped Mr. Vorlob and threatened Mr. Vorlob with bodily harm if he were to testify at the trial.

The complaint relates that on the petition of Mr. Clickner, Judge Harvey conducted John Doe proceedings inquiring into Mr. Vorlob's allegations. As a result of the John Doe proceedings, felony and misdemeanor charges were lodged against the plaintiff. While these criminal charges were pending, Judge Harvey allegedly undertook a series of efforts to persuade the Racine police chief, the police and fire commission, and the city attorney to take disciplinary actions against the plaintiff. It is also alleged that on numerous occasions the defendant commented publicly on the merits of the charges against the plaintiff and that Judge Harvey released or threatened to release information to the press concerning these charges and other alleged wrongdoing by the plaintiff.

The plaintiff claims that the actions of the defendant Harvey were malicious and motivated by a racial animus. In support of the latter claim, the plaintiff has submitted affidavits of individuals stating that they heard Judge Harvey refer to the plaintiff in a racially derogatory manner. It is also claimed that a number of Judge Harvey's acts were taken beyond his jurisdiction as county judge.

Judge Harvey's actions have allegedly caused the plaintiff various injuries; the plaintiff claims that he has become an object of hatred of his fellow officers; that his life has been threatened; that he fears for his personal safety and the safety of his wife; that he has spent considerable sums for his legal defense; that he has been deprived of opportunities for advancement; and that he suffers loss of credit, loss of good name, humiliation, mental distress, and embarrassment.

Lieutenant Harris seeks injunctive relief preventing Judge Harvey from conducting any further investigation into the plaintiff's activities. The plaintiff also requests damages for an asserted denial of due process and equal protection of the laws because of the manner in which judicial proceedings were sought against him and for the reputation and employment-related injuries which he claims to have suffered.

Judge Harvey does not deny that he conducted the John Doe proceedings or that he corresponded with various Racine officials concerning imposition of discipline or other sanctions upon the plaintiff. However, the defendant denies making racially derogatory remarks about the plaintiff and also denies that any of his actions were motivated by racial prejudice, were undertaken maliciously, or were performed outside his jurisdiction.

The defendant's present motion seeks partial summary judgment dismissing several portions of the plaintiff's action. (1) As to the plaintiff's claim for injunctive relief, the defendant's motion is grounded on principles set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). (2) Relying on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the defendant seeks summary judgment respecting the plaintiff's due process claim for damages for injury to his reputation. (3) The defendant also argues that summary judgment should be granted dismissing the equal protection aspect of the plaintiff's action. (4) Finally, the defendant contends that summary judgment must be granted because of the doctrine of judicial immunity.

I. THE CLAIM FOR INJUNCTIVE RELIEF

Paragraph 45 of the amended complaint avers that:

"On information and belief, Defendants Clickner and Harvey, acting under color of law, both within and without their jurisdiction, are continuing and persisting in their course of malicious conduct to intimidate, threaten and harrass Plaintiff Harris up to and including the date of this complaint causing him immediate and irreparable harm for which there is no adequate remedy at law and Defendants will continue to act both within and without their jurisdiction under color of law unless this Court grants permanent injunctive relief."

In support of the claim for injunctive relief, Lieutenant Harris has submitted several exhibits. The first exhibit, a portion of the transcript from one of the John Doe proceedings, includes an exchange in which Judge Harvey persistently warned a witness not to perjure himself by denying that he heard a conversation inculpating the plaintiff. The other exhibits allegedly show that the defendant continued publicly and privately to attack the plaintiff up to the time this action was commenced. In correspondence between the defendant and the Racine chief of police, Judge Harvey provided information from the John Doe proceedings and from other sources suggesting that the plaintiff had acted improperly on other occasions and urging that the police department conduct an internal investigation of Lieutenant Harris so as to avoid a "coverup."

The defendant advances two grounds in support of its motion for partial summary judgment dismissing the plaintiff's claim for injunctive relief: (1) The plaintiff's claim presents no actual case or controversy as required by Article III of the Constitution; (2) Even if the case or controversy requirement is met, the plaintiff has not stated an adequate basis for equitable relief.

In support of the first of these contentions, the defendant stresses that no judicial proceedings are presently pending against Lieutenant Harris and that the plaintiff has failed to allege "sufficient facts to demonstrate that he is in any jeopardy of suffering irreparable injury if the as yet uncommenced state proceedings are not now enjoined." The defendant in this regard relies on O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974).

In O'Shea, a county magistrate and judge, among others, were sued under 42 U.S.C. §§ 1981, 1982, 1983, and 1985 for allegedly engaging in practices in the administration of a state criminal justice system which deprived the plaintiffs of rights secured in part by the fourteenth amendment. The plaintiffs sought injunctive relief preventing the defendants' imposing various procedural burdens upon nonwhite persons that were not imposed on white persons.

The Supreme Court, holding that the plaintiff's complaint failed to satisfy the jurisdictional case or controversy requirement in Article III, reasoned as follows:

"Apparently, the proposition is that if respondents proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory practices that petitioners are alleged to have followed. But it seems to us that attempting to anticipate whether and when these respondents will be charged with crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture. See Younger v. Harris, 401 U.S. 37, at 41-42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971)." 414 U.S. at 497, 94 S.Ct. at 676.

Acknowledging that as a result of the plaintiff's conduct tensions were high, the Court was "nonetheless unable to conclude that the case-or-controversy requirement is satisfied by general assertions or inferences that in the course of their activities respondents will be prosecuted for violating valid criminal laws." O'Shea, supra, at 497, 94 S.Ct. at 677. The Court found that under the circumstances "the threat of injury from the alleged course of conduct . . attacked is simply too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court." O'Shea, supra, at 498, 94 S.Ct. at 677.

I am convinced that in the instant case as well the prospect of future criminal proceedings against the plaintiff is too remote to present a case or controversy as required by Article III. The complaint and the parties' affidavits reveal that all criminal proceedings against the plaintiff that stemmed from the John Doe have been dismissed and no other charges have since been lodged against Lieutenant Harris as a result of any proceedings over which the...