Morgan v. Willingham
| Decision Date | 05 October 1967 |
| Docket Number | No. 9281.,9281. |
| Citation | 383 F.2d 139 |
| Parties | Daniel MORGAN, Appellant, v. John T. WILLINGHAM, and C. A. Jarvis, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Daniel Morgan, pro se.
Newell A. George, U. S. Atty. and James R. Ward, Asst. U. S. Atty., Topeka, Kan., for appellees.
Before MURRAH, Chief Judge, WILBUR K. MILLER,* Senior Circuit Judge and HICKEY, Circuit Judge.
This is an appeal from an order granting a motion for summary judgment in favor of appellees Willingham and Jarvis and dismissing the complaint and cause of action brought against them by appellant, a prisoner at the United States Penitentiary, Leavenworth, Kansas.
Morgan filed this action for damages totaling more than $93,000,000 in the Leavenworth County District Court. The summons and complaint named Willingham and Jarvis, the Warden and Chief Medical Officer at the Penitentiary as the principal defendants.1 The appellees, through their attorney, filed a general answer in the Leavenworth County District Court. The action was then removed to the United States District Court for the District of Kansas.2
The appellant then filed a verified motion to remand the cause to the state court. This motion was denied but the trial court stated that it would consider a renewed motion if the facts, as subsequently developed, showed the defendants were not acting under color of office.
In substance, the complaint3 charged that Willingham, Jarvis and others ordered unqualified penitentiary inmates to inoculate the appellant with a "deleterious foreign substance, serum, or drug" which resulted in permanent injury to him. The complaint further alleged that Willingham, Jarvis and others "out of malice * * * did willfully, wantonly or wrongfully, and contrary to the law, assault, batter, club, choke and torture the plaintiff severely injuring him."
The appellees then filed a motion for summary judgment and included affidavits of both Willingham and Jarvis. Appellant filed a verified opposition to the motion for summary judgment. In granting the motion, the trial court held that the plaintiff failed to "overcome the undisputed fact that all of the activities of the defendants Willingham and Jarvis and their conduct come within the ambit of their duties and responsibilities as Warden and Chief Medical Officer respectively of the penitentiary and the charge that they acted maliciously and without provocation or while under the influence of intoxicating liquor does not remove or restrict the broad rule of immunity."
This appeal presents two major issues which although related must be treated separately since the authority for the court's action comes from different sources. The primary issue is whether the court properly granted appellee's petition for removal or whether it erred in failing to remand the cause to the state court. The secondary issue is whether the trial court correctly found appellees immune from prosecution and granted summary judgment as to them. For the reasons which follow, we do not reach this secondary issue.
This action was removed to the federal courts under the provision of 28 U.S. C. § 1442(a) (1). This section provides for removal of an action commenced in a state court if the defendants are officers of the United States or agency thereof or persons acting under such office and the act complained of was either "under color of such office" or "on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals." It cannot seriously be disputed that the appellees fall within the class of persons covered by the section. The more difficult question concerns whether the acts complained of were committed "under color of office."
It should first be emphasized that § 1442, like the common law doctrine of immunity, presents different standards for different classes of federal personages. An officer of the federal court may remove an action against him if the act was "under color of office or in the performance of his duties." § 1442(a) (3); and see Jones v. McGill, 46 F.2d 334 (D. New Hampshire 1931); Simpson v. McVey, 217 F.Supp. 575 (S.D.Ohio 1963). A congressional officer may remove an action if the act was "in the discharge of his official duty under an order of (either House of Congress)." § 1442(a) (4). In this respect, the removal statutes parallel the common law doctrine of immunity which applies broadly to judicial officers and narrowly to agents of the Executive Branch of the Federal Government.
There is abundant support for the proposition that the "color of office" test which applies to these appellees provides a rather limited basis for removal. State of Ohio v. Dorko, 247 F.Supp. 866 (N.D. Ohio 1965); Nass v. Mitchell, 233 F. Supp. 414 (D.Maryland 1964); Brenner v. Kelly, 201 F.Supp. 871 (D.Minn.1962); Goldfarb v. Muller, 181 F.Supp. 41 (D.N. J.1959). Those courts have rejected the contention that the words "under color of office" mean no more than "in the course and scope of employment." Circuit Judge Goodrich suggested that "to make scope and course of employment the test for `color of office' is * * * to twist the statute out of its rational construction and go far beyond anything that Congress could possibly have intended in its enactment (of the removal statutes)." Ebersole v. Helm, 185 F.Supp. 277, 278 (E.D.Penn.1960). This rationale accounts for the numerous decisions which hold that removal of a civil suit or criminal prosecution which resulted from the operation of a motor vehicle by one who was clearly acting within the course and scope of his official government employment is improper and that the case must be remanded to the state court. State of Ohio v. Dorko, supra; Nass v. Mitchell, supra; Galbert v. Shivley, 186 F.Supp. 150 (W.D.Ark.1960); Ebersole v. Helm, supra; Goldfarb v. Muller, supra; Fink v. Gerrish, 149 F. Supp. 915 (S.D.N.Y.1957); State of Oklahoma v. Willingham, 143 F.Supp. 445 (E.D.Okl.1956). Contra Pepper v. Sherrill, 181 F.Supp. 40 (E.D.Tenn. 1958); City of Norfolk v. McFarland, 143 F.Supp. 587 (E.D.Va.1956).
In Brenner v. Kelly, 201 F.Supp. 871 (D.Minn.1962), a case which is somewhat analagous to the case at bar, the court held that doctors employed in the Veterans' Administration Hospital were not entitled to remove a malpractice action originally filed in the state court. The holding seems to be premised on the belief that while federal doctors act under the color of office, when operating properly they are not required nor are they authorized to negligently treat patients entrusted to their care and when they do so, they do not act under color of office. To be eligible for removal the defendant must exclude the possibility that the suit is based on acts or...
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Osborn v. Haley
...a defendant “exclude[s] the possibility that the suit is based on acts or conduct not justified by his federal duty.” Morgan v. Willingham, 383 F.2d 139, 141 (1967). We rejected that narrow construction of the statute and held § 1442 “broad enough to cover all cases where federal officers c......
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O'BRYAN v. Chandler
...been brought in a federal court. The Supreme Court in Willingham reversed the lower court decision of this court in Morgan v. Willingham, 383 F.2d 139 (10th Cir. 1967). Under the unusual facts of this case it was correct for the District Court to apply the 1969 Supreme Court decision in Wil......
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People v. Clarke
...the defendant “exclude[s] the possibility that the suit is based on acts or conduct not justified by his federal duty.” Morgan v. Willingham, 383 F.2d 139, 141 (1967). The court noted that “[t]he only undisputed evidence was that the only contact the appellees had with the appellant occurre......
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Green v. James, Civ. No. 70-3125.
...resulted from the negligent acts, or even willful and wanton acts, of an employee, unless within the statutory exemptions. Morgan v. Willingham, 383 F.2d 139, a 10th Circuit 1967 case originally heavily relied upon by plaintiff's first memorandum, was expressly reversed by Willingham v. Mor......