Kenney v. Killian, Civ. A. No. 2310.

• Decision Date: 29 June 1955
• Docket Number: Civ. A. No. 2310.
• Citation: 133 F. Supp. 571
• Parties: Edward James KENNEY, Jr., Plaintiff, v. Joseph E. KILLIAN, Defendant.
• Court: U.S. District Court — Western District of Michigan

133 F. Supp. 571

Edward James KENNEY, Jr., Plaintiff, v. Joseph E. KILLIAN, Defendant.

Civ. A. No. 2310.

United States District Court W. D. Michigan, S. D.

June 29, 1955.

Edward James Kenney, Jr., Benton Harbor, Mich., in pro. per.

Alexander, Cholette, Buchanan, Perkins & Conklin and Paul E. Cholette, Grand Rapids, Mich., for defendant.

STARR, Chief Judge.

The motions before the court for determination are: (1) The defendant's motion for a judgment in his favor of no cause of action on the pleadings, and to dismiss the action; (2) the plaintiff's motion to strike such motion by the defendant; and (3) the plaintiff's motion for a summary judgment in his favor determining the legal liability of the defendant to respond in damages.

Plaintiff brings this action in pursuance of 8 U.S.C.A. § 43 (now 42 U.S.C.A. § 1983) and 28 U.S.C.A. § 1343, and in his complaint he alleges that he resides in Benton Harbor, Berrien county, Michigan, and is a member of the State bar of Michigan and engaged in the active practice of law; that the defendant Joseph E. Killian at the time of the occurrence of the events alleged in the complaint was the prosecuting attorney of Berrien county, Michigan; that the defendant in his capacity as prosecuting attorney on November 16, 1950, "approved and issued or caused to be approved and issued, a certain warrant or arresting document" in pursuance of Comp.Laws Mich. 1948, § 330.19 as amended by Act No. 313, Pub. Acts 1949, Stat.Ann.1953 cum. supp. § 14.809, and that by virtue of this warrant or arresting document the plaintiff was seized by officers of the sheriff's department of Berrien county and confined in the county jail for a period of about 40 hours; that during his arrest and confinement he was denied the right of counsel; that the defendant as prosecuting attorney was not justified in approving or authorizing his arrest or confinement by Comp. Laws Mich. 1948, § 330.19, as under that section a person could be arrested and detained in temporary protective custody only if he manifested homicidal or other dangerous tendencies; that plaintiff did not at any time exhibit such tendencies; that he was denied due process of law; and that the conduct of the defendant as prosecuting attorney constituted an invasion of the plaintiff's rights secured under the Fourth, Fifth, Sixth, and Fourteenth Amendments of the Constitution of the United States, contrary to 42 U.S.C.A. § 1983. Plaintiff further alleges that as a result of his seizure and detention he has suffered physical and mental harm, exhaustion, shock, and humiliation, and has suffered and will suffer medical and hospital treatment and expense; and that he has suffered injury both temporary and permanent to his reputation as a member of the community and as a practicing lawyer. In his complaint the plaintiff asks for a judgment against the defendant for money damages in the amount of $20,000 plus punitive and exemplary damages of $5,000 and also costs and attorney fees. The plaintiff subsequently filed an amendment of his complaint reading in part as follows: "Paragraph nine is amended by adding the averment that this action also sounds in false imprisonment."

It appears from the files and records in this case that in the preparation and filing of his complaint the plaintiff was represented by Attorney Harold Norris of Detroit, Michigan. However, it further appears that Attorney Norris subsequently withdrew as attorney for plaintiff, and that the plaintiff's amended complaint and all later motions and briefs were prepared and filed by him acting in his own behalf.

The defendant filed answer denying that he issued a warrant or document for the arrest of the plaintiff; denying that the plaintiff was denied the right of counsel or the privilege of communicating with counsel; and alleging that the plaintiff was, in fact, permitted to communicate and did communicate and consult with his counsel. The defendant further alleges that on November 16, 1950, the sheriff of Berrien county, pursuant to Comp.Laws Mich. 1948, § 330.19, sought and obtained the approval of the defendant as prosecuting attorney to take the plaintiff into temporary protective custody; and that such approval was given by the defendant with justifiable cause, as the plaintiff had in fact manifested homicidal and dangerous tendencies and the defendant had reason to believe that he was mentally ill and was manifesting homicidal and dangerous tendencies within the meaning of the provisions of Comp.Laws Mich. 1948, § 330.19, Stat.Ann. § 14.809, which provides in part as follows:

"No person arrested under this act shall be confined in a jail or other lock-up unless such person manifests homicidal or other dangerous tendencies: Provided further, That any peace officer of this state with the approval of the prosecuting attorney, obtained within 24 hours of the taking into custody and confinement, is hereby authorized to take into temporary protective custody and confine for a period of not to exceed 48 hours, not counting Sundays and legal holidays, any person believed to be mentally ill manifesting homicidal or other dangerous tendencies; proceedings under this act; temporary or permanent, to be instituted by such peace officer within said 48 hour period, not counting Sundays and legal holidays."

At the hearing in open court on the motions of the parties now under consideration, there was put in evidence a copy of the written approval or authorization which the defendant as prosecuting attorney gave the sheriff of Berrien county relative to taking the plaintiff into temporary protective custody in pursuance of § 330.19 quoted above. This approval or authorization reads as follows:

"November 16, 1950 "Mr. Erwin H. Kubath, Sheriff St. Joseph, Michigan "Re: Edward J. Kinney, Jr 849 Pipestone Street Benton Harbor, Michigan

"Dear Sir:

"It has been represented to this office that the above person is insane and manifesting homicidal and other dangerous tendencies and therefore you are authorized to take such person into temporary protective custody and to confine him for a period of not to exceed 48 hours, not including Sundays and legal holidays, all as provided in Section 14.809 of the Michigan Statutes Annotated, as amended (Comp.Laws Mich.1948, § 330.19 as amended).

"Yours very truly Joseph E. Killian Prosecuting Attorney."

It appears that after the plaintiff had been detained in temporary protective custody for about 40 hours on November 16th and 17th, the probate court of Berrien county on November 18, 1950, determined and adjudged him to be mentally ill and committed him to the Kalamazoo State hospital, where he was confined until about August 17, 1952. However, from exhibits filed in the present action it appears that in a subsequent proceeding instituted by the plaintiff in the circuit court of Berrien county, an order or decree was entered in October, 1954, declaring his commitment to the State hospital on November 18, 1950, to be null and void.¹

As affirmative defenses the defendant alleges: (1) That both plaintiff and defendant are citizens of Michigan and that, there being no diversity of citizenship, this Federal court is without jurisdiction of the parties or the subject matter of the action;² (2) that the allegations of the complaint do not state a claim upon which relief could be granted; and (3) that all acts alleged to have been done by the defendant in connection with the taking of plaintiff into temporary protective custody were performed by the defendant as a public officer acting within the scope of his official authority and discretion and in the course of his official duties as prosecuting attorney, and that as prosecuting attorney he is immune from legal liability to the plaintiff for the acts complained of. As a further affirmative defense the defendant alleges that plaintiff's action is in form and substance an action for false imprisonment and for malicious prosecution and is barred by the Michigan statute of limitations, being Comp.Laws Mich. 1948, § 609.13, subd. 3, which provides among other things that actions for false imprisonment and for malicious prosecution shall be brought within two years from the time the cause of action accrues, and not afterwards. The defendant denies that plaintiff is entitled to recover either ordinary or punitive damages in the present action.

Plaintiff bases Federal-court jurisdiction of the present action on 28 U.S.C.A. § 1343 as amended, which provides:

"The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

"(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;

"(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent;

"(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States."

Plaintiff bases his right to recover in the present action on 8 U.S.C.A. § 43 (now 42 U.S.C.A. § 1983), which provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

In his...