Krohn v. United States

• Decision Date: 04 October 1983
• Docket Number: Civ. A. No. 76-619-Z.
• Citation: 578 F. Supp. 1441
• Parties: Kenneth Bruce KROHN v. UNITED STATES, et al.
• Court: U.S. District Court — District of Massachusetts

578 F. Supp. 1441

Kenneth Bruce KROHN v. UNITED STATES, et al.

Civ. A. No. 76-619-Z.

United States District Court, D. Massachusetts.

October 4, 1983.

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Kenneth B. Krohn, pro se.

Mark Robinson, Asst. U.S. Atty., U.S. D.C., D. Mass., James M. Pool, Boston, Mass., for defendants.

ZOBEL, District Judge.

This is the latest in a long line of judicial opinions and proceedings occasioned by the mysterious disappearance of Raul Hernandez-Bustamonte. Plaintiff, who was at various times arrested for and/or charged with kidnapping and murder during the course of the investigation into Mr. Hernandez-Bustamonte's apparent abduction, filed a thirty-eight count complaint in 1976 charging defendants with violations of his constitutional rights and of state law.¹ His claims are premised on the implied cause of action of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), on 42 U.S.C. § 1983, 28 U.S.C. § 2674, and on the pendent jurisdiction of this Court. Defendants are the United States, a former assistant United States attorney (Brown), seven named agents of the Federal Bureau of Investigation (Kennedy, Lynch, Dennedy, Riley, Williams, Muir and Baugh), certain "Unknown Named Agents of the United States Department of Justice," and one of plaintiff's former attorneys (Pool). The most recent decision in this case was issued on March 28, 1980, when I denied in part and allowed in part defendants' motions for summary judgment.² Now, upon the presentation of further affidavits and legal argument, all the defendants except Pool have again moved for summary judgment.

The Constitutional Counts

Counts One through Nine allege causes of action arising directly under the United States Constitution.

Count One charges that Brown and others, presumably the Unknown Named Agents, conspired with Pool to deprive plaintiff of his Sixth Amendment right to counsel and his Fifth Amendment rights to due process and to a fair trial.

In 1980, I dismissed Count One as to Pool because the facts as alleged did not state a claim for deprivation of due process, a fair trial, or effective assistance of counsel. The federal defendants now move that the law of the case requires that this count be dismissed as to them as well. Their argument is clearly correct because the facts as alleged do not support a claim that plaintiff was deprived by any one of these Fifth and Sixth Amendment rights.³

Count Two alleges that defendants Muir and Kennedy deprived plaintiff of his rights to liberty and property without due process of law by arresting him on March 9, 1973. These defendants assert that this claim is time barred.

Although neither the Constitution nor the Supreme Court's decision in Bivens provides a statute of limitations for the bringing of actions directly under the Constitution, the parties agree that the Court should look to the state statute that contains the most closely analogous period of limitations. That statute is, as plaintiff appears to concede,⁴ Mass.Gen.Laws ch. 260, § 2A, which at the relevant time provided a two year period for the bringing of tort actions. Since this action was brought on February 12, 1976 and the allegedly unlawful arrest occurred almost three years before, Count Two is too late.

In my Memorandum of Decision of March 28, 1980, I granted summary judgment for the defendants on Counts Three, Four and Five and gave plaintiff until June 30, 1980 to oppose by proper affidavit the motion for summary judgment with respect to Counts Six and Sixteen, which deal with the alleged search of his townhouse. No affidavits have been filed by plaintiff with respect to these counts. Therefore, summary judgment is proper as to them.

Count Seven alleges that Baugh and the Unknown Named Agents deprived plaintiff of his Fifth Amendment rights to liberty and property by obtaining and executing a warrant for his arrest on September 6, 1974. There is no dispute that twenty seven days after this arrest a Federal Magistrate in the Eastern District of Virginia, after a hearing and for lack of probable cause, dismissed the charges which were the basis of the warrant. This determination, however, is not dispositive of the issue of defendants' liability, for a police officer is not liable for a deprivation of constitutional rights so long as he acts in good faith. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). In a Bivens action, as in actions under 42 U.S.C. § 1983, it is not the validity of a warrant that establishes good faith, but the state of mind of the officer who executes or swears it out. If the officer acts in good faith, the defective nature of the warrant executed by him will not subject him to liability for a constitutional tort. Commonwealth of Pennsylvania ex rel. Feiling v. Sincavage, 439 F.2d 1133, 1134 (3d Cir.1971). This proposition also holds true for the officer whose affidavit results in the issuance of the warrant. Madison v. Manter, 441 F.2d 537 (1st Cir.1971).

Where summary judgment is sought on an issue involving state of mind, "great circumspection is required." Hahn v. Sargent, 523 F.2d 461, 468 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Although the affidavit submitted by Baugh to this Court states that he based the affidavit that resulted in the issuance of the September 1974 warrant upon information provided by one Thurston Shrader to an F.B.I. agent in Nevada in late August of that year, the testimony given by Muir at the probable cause hearing indicates that Baugh may have known that Shrader had recently undergone psychiatric treatment and had a habit of masquerading as plaintiff for the purpose of engaging in allegedly illegal conduct. Muir's testimony thus raises sufficient doubts as to Baugh's good faith and as to that of the Unknown Named Agents working on this case to preclude a grant of summary judgment on this count.

Count Eight alleges that defendants Muir, Baugh and the Unknown Named Agents unlawfully deprived plaintiff of his Eighth Amendment right "to leave jail after having posted a nonexcessive bail." The factual basis for this claim is set out in paragraphs 79 through 83 of the complaint. They allege that after plaintiff was admitted to $50,000 bail in Virginia on September 23, 1974, but before he had posted a bond, Muir, Baugh and the Unknown Named Agents induced Maryland officials to apply for and obtain, without probable cause, a warrant charging plaintiff with murder. According to the complaint, upon learning from his attorney that the warrant had been issued, plaintiff decided not to post bond because he wanted to avoid incarceration in a state jail.

Defendants contend that the facts as alleged in Count Eight fail to state a claim. They urge that the Eighth Amendment's excessive bail clause is not enforceable through Bivens, and that because only judges and magistrates set bail, federal agents cannot be held liable for violations of the clause. Finally, they argue that even if they could be so held, their acts were too remotely related to plaintiff's voluntary decision to remain in federal custody to confer liability upon them.

Although a cause of action may be implied under the Eighth Amendment's cruel and unusual punishment clause, Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), no federal court appears to have held that a cause of action may be implied under that amendment's other restrictions on federal authority. Initially, it would seem that even if such a cause of action could be implied, it would not here be stated because Muir and Baugh had no relation at all to the imposition of bail. This lack of relationship, however, is not fatal to plaintiff's constitutional claim, because it is apparent that the true nature of the claim is that of a Fourth or Fifth Amendment violation: plaintiff alleges that federal officials sought and indirectly obtained a warrant without probable cause and in bad faith, and that the effect of the warrant was to prolong plaintiff's federal incarceration. In effect, his contention is that federal officers acted in bad faith to deprive him of liberty without due process of law. If plaintiff can show that federal officers did indeed deprive him of a constitutional right, it is irrelevant that they did so through the instrumentality of a state judicial system.

Defendants argue that even if plaintiff has a cause of action under Bivens against federal officers who act through a state judicial system, he does not state a claim because he has not alleged the requisite causation. A Bivens action, however, like actions under 42 U.S.C. § 1983, should "be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Furtado v. Bishop, 604 F.2d 80, 89 (1st Cir.1979), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1980), quoting Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). When a person's conduct is "a substantial factor and a material element in bringing about a foreseeable injury, he can be held liable for that injury." Furtado v. Bishop, 604 F.2d at 89, quoting Hilliard v. Williams, 516 F.2d 1344, 1351 (6th Cir.1975), vacated on other grounds, 424 U.S. 961, 96 S.Ct. 1453, 47 L.Ed.2d 729 (1976). Here, a jury could reasonably find that it was foreseeable that a reasonable man in federal custody would decide not to post a bond when presented with a state arrest warrant for murder, particularly where, as plaintiff alleges, he did not have the resources to post an additional bond in state court.

Even though Count Eight states a cause of action, defendants argue that they are entitled to summary judgment because they played no part in the issuance of the Maryland warrant. Baugh states in his affidavit that he "did not participate in informing the Maryland...