Lovelace v. Whitney, 84 C 2788.

• Decision Date: 03 May 1988
• Docket Number: No. 84 C 2788.,84 C 2788.
• Citation: 684 F. Supp. 1438
• Parties: Eldridge LOVELACE, Plaintiff, v. Bernard WHITNEY; William H. Hall and Scott Turow, Defendants.
• Court: U.S. District Court — Northern District of Illinois

684 F. Supp. 1438

Eldridge LOVELACE, Plaintiff, v. Bernard WHITNEY; William H. Hall and Scott Turow, Defendants.

No. 84 C 2788.

United States District Court, N.D. Illinois, E.D.

May 3, 1988.

Eldridge Lovelace, pro se.

Morris D. Witney, Witney & Witney, Joan C. Laser, Asst. U.S. Atty., Bernard B. Nathan, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

Pro se plaintiff Eldridge Lovelace brings this action against former Assistant United States Attorney Scott Turow¹ and two other private attorneys, Bernard Whitney and William H. Hall. Turow has filed a motion to dismiss on the basis of absolute immunity. Hall has moved to dismiss for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6), or for judgment on the pleadings, Fed.R.Civ.P. 12(c). Whitney has moved for judgment on the pleadings, Fed.R.Civ.P. 12(c).²

Facts³

Lovelace was indicted on April 2, 1980, on five counts of fraud. Counts I, II and III referred to allegedly false statements made by Lovelace in three Veteran's Administration ("VA") Applications for Home Loan Guarantees. Count IV charged that Lovelace made false statements in a bankruptcy petition, and Count V charged fraud in connection with a VA Credit Statement. On June 29, 1981, Lovelace pleaded guilty to Counts I, II, III and V before the Honorable John F. Grady. Judge Grady refused to accept a plea as to Count IV because Judge Grady's questioning of Lovelace upon acceptance of the guilty plea "raised serious questions as to Lovelace's guilt regarding the allegedly fraudulent statements in a bankruptcy petition." United States v. Lovelace, 683 F.2d 248, 250 n. 1 (7th Cir.1982). Lovelace subsequently moved to vacate the guilty plea. Following a hearing on the matter, Judge Grady denied Lovelace's motion to withdraw his plea. Lovelace appealed, but the Seventh Circuit affirmed Judge Grady. Lovelace, 683 F.2d at 251.

Lovelace subsequently filed a petition under 28 U.S.C. § 2255 to set aside his conviction. He alleged that defendant attorney Whitney had violated the attorney-client privilege in turning his files over to Assistant United States Attorney Scott Turow, and thus the evidence against him was illegally obtained. He also argued that his defense attorney Hall had coerced him into pleading guilty. On July 20, 1984, Judge Grady denied Lovelace's motion to set aside his conviction on the basis that his guilty plea had been coerced. United States v. Lovelace, No. 80 CR 209/83 C 8768 slip op. (N.D.Ill. July 20, 1984). Before Judge Grady could rule on the attorney-client issue, Lovelace voluntarily dismissed his petition.

The present complaint alleges that Whitney was Lovelace's attorney for approximately twenty years and represented him in connection with his application for the Home Loan Guarantee for property located at 14459 South Peoria, Harvey, Illinois, and in preparation of a bankruptcy petition. Whitney provided his files concerning Lovelace's loan application and bankruptcy proceeding to Assistant United States Attorney Scott Turow. Lovelace alleges that Whitney was not authorized to turn the files over to Turow, and that Whitney thus intereferred with the attorney-client relationship. Lovelace also alleges that Whitney testified before the Grand Jury and disclosed confidential attorney-client information which incriminated Lovelace.

Lovelace alleges that the evidence used to obtain his indictment was illegally obtained and that the indictment was based solely on the testimony by Whitney. The complaint alleges that Whitney turned the confidential files over to Turow subsequent to Lovelace's indictment (¶ 6). In the motion to suppress filed on July 17, 1980, by Lovelace in his criminal case, he indicated that on May 29, 1980, the government served a subpoena duces tecum calling for the production of all of Whitney's records relating to Lovelace. Lovelace alleged that Whitney turned over all of his records, even those protected by the attorney-client privilege. Assistant United States Attorney Turow's letter which was attached to the motion to suppress stated the following:

Dear Mr. Witney sic:

Enclosed please find a subpoena duces tecum calling for production of all of your records relating to Eldridge Lovelace. We are interested in any records you have maintained which relate to Mr. Lovelace's earlier real estate transactions or either of his two bankruptcy petitions. If you have any question that any of the documents subpoenaed are protected by the Attorney-Client privilege or the Fifth Amendment (as to Mr. Lovelace), please so inform me and keep the documents in your custody. I will call the matter to Judge Grady's attention and ask him to review them in camera.

Please contact me next week (June 2 or after) as I would like to make arrangements with you to discuss your trial testimony.

Very truly yours THOMAS P. SULLIVAN United States Attorney By: /s/________________ SCOTT F. TUROW Assistant United States Attorney

United States v. Lovelace, No. 80 CR 209, Document # 18. Judge Grady apparently reserved ruling until trial and, because of the plea, never was required to rule on the motion to suppress. United States v. Lovelace, No. 80 CR 209-1 Min. Order (N.D.Ill. Jan. 6, 1981).

The complaint further alleges that defendant Hall, who represented Lovelace in the criminal action, "presurred sic, influenced and coerced Plaintiff into pleading guilty, and failed to advise plaintiff fully of the rights he was waiving and of the defense which he had." (Complaint, ¶ 11). The complaint concludes its factual assertions with the following conclusory statements:

13. Plaintiff alleges that the prosecution obtained his conviction based solely upon the actions of Whitney, Trow sic and Hall.

14. Plaintiff alleges that a jury trial would have disclosed Whitney's unethical, conspiratorial and misconduct activities. Which Plaintiff had no knowledge of at the time he plead guilty.

15. Plaintiff alleges that a conspiracy existed among Whitney, Trow sic and Hall to obtain his conviction.

Discussion

Lovelace attempts to base his damage claims on three statutory bases: 18 U.S.C. § 242, 42 U.S. § 1983 and 42 U.S. § 1985. 18 U.S.C. § 242, however, is a criminal statute which provides no private cause of action. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980); Pawelek v. Paramount Studios Corp., 571 F.Supp. 1082, 1083 (N.D.Ill.1983); Weiland v. Byrne, 392 F.Supp. 21, 22 (N.D.Ill.1975). Therefore, Lovelace cannot state a claim under that section.

Sections 1983 and 1985 address only constitutional deprivations made under color of state law. S. Nahmod, Civil Rights and Civil Liberties Litigation § 2.04 (1986). Because the alleged actions taken by defendants Hall, Whitney and Turow in this case could only have been taken under color of federal law, §§ 1983 and 1985 are inapplicable. Therefore, Lovelace cannot state a claim under 42 U.S.C. § 1983 or § 1985.

Lovelace could, however, proceed against Turow, a federal agent, for violation of his civil rights in a Bivens-type action. In 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), the Supreme Court found an implied damage remedy for violation of the Fourth Amendment by federal agents. Because complaints drafted by pro se litigants such as Lovelace are held to less stringent standards than are formal pleadings drafted by lawyers, Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176, 66 L.Ed.2d 163 (1980), and the district court must see that pro se litigants are given "fair and meaningful consideration," Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir.1984), the court will not dismiss the complaint on this basis but treat it as a Bivens action.

Defendants Hall and Whitney are not, however, federal actors but only private attorneys. It is not entirely clear that private actors are as readily subject to suit under a Bivens action as they would be under 42 U.S.C. § 1983 as set forth in Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In Adickes, the Supreme Court stated that private actors may be liable under § 1983 when they engage in a joint course of action with a state actor.⁴ However, because we conclude, for the reasons discussed below, that we must grant Hall and Whitney's respective motions to dismiss, we need not address the issue of whether a Bivens action can also be maintained against a private party working in concert with a federal actor. Accordingly, for purposes of this motion, we will assume that if there is a sufficient allegation of conspiracy between a federal actor and private individuals, then a plaintiff may maintain a Bivens action against a private party.

Turow

Scott Turow moves to dismiss Lovelace's complaint against him on the grounds of absolute immunity.⁵ In Imbler v. Pachtman, 424 U.S. 409, 426, 96 S.Ct. 984, 939, 47 L.Ed.2d 128 (1976), the Supreme Court held that prosecutors enjoy the same absolute immunity under 42 U.S.C. § 1983 that the prosecutor enjoys at common law. A federal official enjoys the same level of immunity in a Bivens action as would a state official in a § 1983 suit. See Butz v. Economou, 438 U.S. 478, 501, 98 S.Ct. 2894, 2908, 57 L.Ed.2d 895 (1983). Accordingly, if Turow would be entitled to absolute immunity as a state prosecutor under Imbler, he would also be entitled to absolute immunity as a federal prosecutor in a Bivens suit.

The Court in Imbler, however, left standing a line of decisions which had allowed only qualified immunity for prosecutors engaged in certain investigative activities. Imbler, 424 U.S. at 430 and n. 31, 96 S.Ct. at 995 and n. 31. One of the cases left standing was a Seventh Circuit case, Hampton v. City of Chicago, 484 F.2d 602 (7th Cir.1973), cert. denied, 415 U.S. 917, 94 S.Ct. 1413, 39 L.Ed.2d 471 (1974). In Hampton, 484 F.2d at 608, the Seventh Circuit distinguished quasi-judicial activities of...