Kenyatta v. Moore

Citation623 F. Supp. 224
Decision Date20 November 1985
Docket NumberCiv. A. No. J77-0298(L).
PartiesMuhammad KENYATTA, Plaintiff, v. Roy K. MOORE, et al, Defendants.
CourtU.S. District Court — Southern District of Mississippi

Shirley Payne, Patrick D. O'Rourke, American Civil Liberties Union of Miss., Jackson, Miss., Jack D. Novik (Pro Hac Vice), American Civil Liberties Union Foundation, New York City, Dennis L. Horn, Horn & Payne, Kenneth J. Rose, Jackson, Miss., David Rudovsky (Pro Hac Vice), Defender Assn. of Philadelphia, Philadelphia, Pa., for plaintiff.

Daniel E. Lynn, Asst. U.S. Atty., Jackson, Miss., Gordon W. Daiger (Pro Hac Vice), Atty., Torts Branch, Civ. Div., Dept. of Justice, Washington, D.C., Mary P. Mitchell and Peter R. Wubbenhorst (Pro Hac Vice), for defendants.


TOM S. LEE, District Judge.

This cause is before the court on motion by defendants Roy K. Moore, James O. Ingram and Thomas Fitzpatrick for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff Muhammad Kenyatta filed timely response and the court has considered the memoranda with authorities submitted by the parties. The issue before the court is whether agents of the Federal Bureau of Investigation (F.B.I.), acting pursuant to Bureau directives, can be held individually liable for conspiracy to deprive a person of equal protection of the laws under 42 U.S.C. § 1985(3).

The facts of this case are only briefly summarized.1 Kenyatta was engaged in civil rights activities in the late 1960's during and shortly after his tenure as a student at Tougaloo College, a predominantly black college on the outskirts of Jackson, Mississippi. Defendants Moore, Ingram and Fitzpatrick were employed as special agents of the F.B.I. and were assigned to the Jackson, Mississippi Field Office during the relevant time period. Pursuant to a series of F.B.I. interdepartmental memoranda, the defendants engaged in a counterintelligence program aimed at gaining information about black nationalist groups and leaders for purposes of exposing and discrediting them.2 Kenyatta became a target of F.B.I. investigation in the latter part of 1967 when one or more of the defendants caused his name to be placed on the F.B.I. "Rabble Rouser List," later called the F.B.I. "Agitator Index." In April 1969, the agents caused a letter to be sent to Kenyatta which falsely purported to be from the Tougaloo College Defense Committee, a student organization with which Kenyatta was involved. The letter criticized Kenyatta's "conduct and general demeanor" and advised him to stay away from campus or "other measures" would be taken, including reporting his activities to local authorities. Kenyatta left Mississippi shortly after receiving this letter, he asserts, because he relied on its authenticity and believed himself discredited in the eyes of the student body. In August 1969, the defendants gave certain F.B.I. intelligence information on Kenyatta to an attorney inquiring on behalf of the Episcopal Church as to the propriety of continuing church funding of the Jackson Human Rights Project. Kenyatta had participated in the project and he asserts that the subsequent cessation of project funding by the church was directly caused by the dissemination of this information by the defendants. Kenyatta lastly charges that throughout his tenure at Tougaloo the defendants "circulated false and derogatory rumors and allegations" about him to local authorities, Tougaloo faculty and students, defaming his character. Kenyatta's pendent state claims, including the defamation action under Mississippi law, were dismissed from this case by this court's memorandum opinion and order dated September 27, 1985.

Kenyatta's amended complaint alleges that defendants' actions violated his rights protected under the First, Fourth, Fifth and Ninth Amendments to the Constitution of the United States. Under the authority of Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and its progeny, Kenyatta asserts that he is entitled to an implied cause of action for deprivation of constitutional rights and a private damages remedy against the defendants in their individual capacities.3 Kenyatta also charges that the defendants, acting with racially discriminatory animus, engaged in a conspiracy to deprive him of equal protection of the laws in violation of 42 U.S.C. § 1985(3).4

Defendants' instant motion seeks partial judgment on the pleadings on the ground that persons acting under color of federal law are not within the reach of § 1985(3). In a well-stated brief, defendants submit a three-fold argument for precluding the availability of a § 1985(3) cause of action in this case: (1) the legislative intent behind the passage of the Civil Rights Act of 1871, § 2 of which is the parent of § 1985(3), was to curb Ku Klux Klan activities in the Reconstruction South and indeed to protect federal officials, and thus conspiracies by federal officials are not covered by the Act; (2) the concept of equal protection of the laws and equal privileges and immunities under the laws in § 1985(3) necessarily contemplates some involvement by a state or by one acting under color of its authority before a violation can be established; (3) decisional law in the Fifth Circuit indicates that a § 1985(3) cause of action is subject to the same state-action requirement that exists in an action under 42 U.S.C. § 1983, and therefore federal officials acting under color of federal law cannot be held liable under § 1985(3). For the reasons stated hereinafter, this court declines to give identical construction to the legislative intent behind § 1983 and § 1985(3), and concludes that federal officials can be held individually liable for engaging in a private conspiracy to deprive a person of equal protection of the laws.


Defendants correctly contend that the "central concern" of the 42d Congress in passing the Civil Rights Act of 1871 was to combat the "violent and other efforts of the Klan and its allies to resist and to frustrate the intended affects sic of the Thirteenth, Fourteenth and Fifteenth Amendments ..." Carpenters v. Scott, 463 U.S. 825, 837, 103 S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983). A principal purpose underlying the legislation was to provide, through a private damages remedy, some protection for blacks, union sympathizers and federal officials at work in the Reconstruction South. Carpenters v. Scott, 463 U.S. at 837, 103 S.Ct. at 3360; Griffin v. Breckenridge, 403 U.S. 88, 100-03, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971); McCord v. Bailey, 636 F.2d 606, 615-16 (D.C.Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 839 (1981). Defendants argue that it would have been "anomalous" for the 42d Congress to have included within the same legislation having the purpose of protecting federal institutions a section imposing liability on those charged with carrying out that difficult purpose and for whose protection the legislation was passed.

In Griffin v. Breckenridge, 403 U.S. at 101, 91 S.Ct. at 1797, the Supreme Court held that the cause and relief afforded in § 1985(3) applies to wholly private conspiracies. Looking to the clear language and the legislative history of § 1985(3), the Court held that the state-action prerequisite of § 1983 was not intended to be a necessary element in an action under § 1985(3) and that, therefore, any two or more private individuals who conspired with racially discriminatory animus to deprive another of equal protection of the laws could be sued under § 1985(3) regardless of the nature of their employment. 403 U.S. at 99, 91 S.Ct. at 1796. In light of Griffin, it would be truly "anomalous" to disregard any state-action component in a suit against private individuals under § 1985(3), yet grant federal employees an absolute immunity simply because of their employment status. A federal employee who uses his office to commit a federal constitutional violation should not be allowed to claim that office as grounds for an absolute immunity defense. See Bivens, 403 U.S. 388, 91 S.Ct. at 1999; Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In conspiring to commit such constitutional violation with racially discriminatory animus, such federal official is a "person" within the meaning of § 1985(3). See Hobson v. Wilson, 737 F.2d 1, 20 (D.C.Cir.1984); Waller v. Butkovich, 584 F.Supp. 909, 939 (M.D.N.C.1984).

Given the broad language of § 1985(3) and the construction of that language in Griffin to cover private conspiracies, this court rejects defendants' contention that federal officials are not "persons" within the meaning of the statute simply because their safety was of some concern to the 42d Congress. Indeed, the major concern of the 42d Congress in promulgating what is now § 1985(3) — to provide "a statutory cause of action for negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men." Griffin, 403 U.S. at 105, 91 S.Ct. at 1800 — would be thwarted by such a holding. Therefore, the court concludes that there is nothing in the legislative history of § 1985(3) that would exclude conspiratorial private action by federal employees from its coverage.


By its specific terms, § 1985(3) proscribes any conspiracy which has "the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws ..." Defendants argue that the "essence" of the Equal Protection Clause of the Fourteenth Amendment is a guarantee that citizens of one state will not discriminate against or engage in any disparate treatment of citizens of another state. Thus, defendants reason, the requirement that a...

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  • Graves v. U.S., Civil Action No. 96-2608(SS).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 11, 1997
    ...806 F.2d 853, 859 (9th Cir.1986), cert. denied, 481 U.S. 1069, 107 S.Ct. 2461, 95 L.Ed.2d 870 (1987)); see also Kenyatta v. Moore, 623 F.Supp. 224, 228 (S.D.Miss.1985) (holding that federal employee who uses his office to commit a federal constitutional violation is not allowed to claim tha......

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