Norris v. Davis

• Decision Date: 14 July 1993
• Docket Number: No. C89-0118-BG.,C89-0118-BG.
• Citation: 826 F. Supp. 212
• Parties: Walter Keen NORRIS, et al., Plaintiffs, v. George A. DAVIS, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

826 F. Supp. 212

Walter Keen NORRIS, et al., Plaintiffs, v. George A. DAVIS, et al., Defendants.

No. C89-0118-BG.

United States District Court, W.D. Kentucky, Bowling Green Division.

July 14, 1993.

Patricia Ann Thomas, White & Meredith, Bowling Green, KY, for plaintiffs.

Scott C. Cox, U.S. Attorney's Office, Louisville, KY, for defendants.

George A. Davis, pro se.

MEMORANDUM OPINION

HEYBURN, District Judge.

This case is before the Court on further consideration of Defendants Brewer and Carlson's motion for summary judgment. Plaintiffs in this Bivens action are seven (7) ordinary citizens who were defrauded by one of the Defendants, George Davis. Unfortunately, Davis has disappeared, leaving Plaintiffs to attempt to procure relief from two FBI agents, Brewer and Carlson, who made use of Davis as an "undercover" informant. Plaintiffs ultimately assert their right to be free from official conduct of Brewer and Carlson which deprives them of federally protected rights. Since Bivens actions are parallel to and have the same standards as actions under 42 U.S.C. § 1983, the Court will use these terms interchangeably. See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

This case raises issues which concern all citizens. If federal agents organize, supervise, and protect an undercover informant's business that defrauds innocent citizens, then our laws should provide some redress. If that is what occurred in this case, then Plaintiffs are entitled to their day in court. On the other hand, the mere fact that a person is a government informant or performs undercover services does not make his every unsavory act subject to the strictures of 42 U.S.C. § 1983.

By Memorandum dated February 4, 1993, the Court held this motion in abeyance to enable Plaintiffs to file a supplemental memorandum that identified the source of any "clearly established" right which Defendants' alleged conduct is asserted to have violated. Plaintiffs have filed such a memorandum.¹ For the reasons set forth herein, this Court will dismiss all claims in this case, except those of Plaintiffs Ernst and Light against Defendant Brewer.

I.

Defendant Davis began his work as an FBI informant in New Orleans in October of 1984. In 1987, Davis moved to Tennessee and, on his own initiative, set up a new business in Kentucky. He also contacted Brewer and resumed his work for the FBI. (Def.'s Mem.Supp.Mot.Summ.J. at 1.) Davis was an important FBI informant, who devoted considerable effort to gaining information about a man named Sexton. In return for these efforts, Davis was ultimately paid a substantial sum.² Davis reported his findings to Brewer, who relayed this information to Carlson. After Sexton was arrested in September of 1988, Davis began to receive death threats, and at Brewer's advice, on or about September 29, 1988, he moved to an "undisclosed location." (Def.'s Mem.Supp. Mot.Summ.J. at 1-2.)

Between mid-1987 and the fall of 1988, Davis persuaded five of the seven Plaintiffs to invest in the production and sale of various electronics equipment. These businesses were part of a fraud which Davis perpetrated during the Sexton investigation. Davis owes most Plaintiffs for their investments in these counterfeit business ventures. He also charged supplies for his business and bought equipment for which he never paid.

Defendants state that neither Davis' business nor his specific transactions with Plaintiffs were supported by the governmental operations. (Brewer Aff. ¶ 2, 4.) Instead, Defendants assert that Davis defrauded Plaintiffs through purely personal transactions connected with his pawn shop and electronics store, Ideal Electronics. Defendants further assert that they did not encourage or even know of Davis' schemes to defraud the Plaintiffs. (Brewer Aff. ¶¶ 1, 2.) Davis set up his business, the vehicle for his fraudulent activity, before he contacted Brewer to offer his services as an informant. (Def.'s Mem. Supp.Mot.Summ.J. at 2.) During his work for the FBI, Davis was not engaged in surveillance on Plaintiffs; his work for the FBI did not include informing on them. (Brewer Aff. ¶ 3.) As part of his claim, Plaintiff Norris asserts that he bought a one-half ownership in a houseboat which Davis told him the FBI would rent from him for $300 per month. (Norris Aff. ¶ 5.) Davis may well have said this. Norris, however, neither received money from the FBI nor gained possession of the boat. The only remote link of Davis' fraudulent business ventures to his FBI informant work is Plaintiffs' theory that the businesses were necessary "for the establishment of credibility and to present the appearance of an on-going business venture in the community." (Am.Compl. at 5.)

Although Brewer claims that he did not know of Davis' fraudulent schemes, he was aware that Davis owed two Plaintiffs money for matters relating to Davis' personal business. These Plaintiffs, Ernst and Light, contend that Brewer threatened them and dissuaded them from suing Davis. (Am.Compl. at 18.) Brewer asserts that he merely told them that he could not reveal Davis' whereabouts, because Davis was in danger as a result of his work as an informant. (Def.'s Mem.Supp.Mot.Summ.J. at 3.)

Ernst had a promissory note for an investment he made in one of Davis' unauthentic business ventures. Since the note was not yet in default, Brewer told Ernst that he could not sue until it was due. (Def.'s Mem. Supp.Mot.Summ.J. at 2.) Ernst asserts that after he told Brewer that he would go to the media with information about Davis, Brewer threatened that "he would not tolerate any interference" with Davis before the note was due. (Ernst Aff. ¶¶ 22, 24.)

Light was employed by Davis and was suspected of robbing Davis' place of business. (Def.'s Mem.Supp.Mot.Summ.J. at 3.) Light had loaned Davis money and was also owed back wages. Light asserts that when he attempted to contact Davis through the FBI office, Brewer "displayed aggressive actions and clenched fists." (Light Aff. ¶ 15.) Light contends that to dissuade him from filing suit against Davis, Brewer threatened both him and his family. (Light Aff. ¶¶ 12-16.)

The other five (5) Plaintiffs loaned money to Davis or invested in his businesses.³ Unquestionably, Davis has defrauded each of these Plaintiffs. However, they allege no contact with either Brewer or Carlson.

II.

Government officials performing discretionary functions are immune from liability for civil damages as long as their actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Plaintiffs, however, must allege more than a generalized right; to be "clearly established," "the contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates this right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). The asserted right must be identified by reference to "federal constitutional, statutory or case law existing at the time." Poe v. Haydon, 853 F.2d 418, 424 (6th Cir. 1988).

This Court has repeatedly provided opportunities for Plaintiffs to identify "clearly established" rights and their specific sources. Indeed, in an effort to be more than fair, the Court has favorably construed Plaintiffs' ambiguous supplemental memorandum. By reconstructing Plaintiffs' arguments in the best possible manner, the Court identifies four suggestions of "clearly established" rights: (1) the right to due process of law; (2) the right not to be defrauded by government officers; (3) the right to proper supervision of federal informants by FBI field officers; and (4) the right of access to the courts. The Court will address each of these proffered rights in turn.

A. Due Process of Law

Plaintiffs first assert a general Fifth Amendment right against deprivation of property without due process of law.⁴ Plaintiffs identify 42 U.S.C. § 1983 as the first source of this right. This statute, however, "is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Graham v. Connor, 490 U.S. 386, 393-4, 109 S.Ct. 1865, 1870, 104 L.Ed.2d 443 (1989).

Plaintiffs also cite Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), as the source for their due process right. In Parratt, however, the Court emphasized that to be liable under 42 U.S.C. § 1983, officials must have acted under color of state law, id. at 536, 101 S.Ct. at 1913, or in a case involving federal officials, under color of authority. Plaintiffs have produced no evidence which demonstrates that Brewer and Carlson acted in their official capacity to defraud them or that Defendants even participated in Davis' schemes. This issue of color of authority will be discussed more fully in subsection B, infra.

Although the Fifth Amendment, which Plaintiffs also name as a source, is a valid source for this general right to due process of law, Plaintiffs must define their right with the requisite specificity or else qualified immunity will become obsolete. See Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). Plaintiffs need not find precedent which holds Defendants' precise actions to be unlawful, but Plaintiffs must identify pre-existing law under which the illegality of Defendants' alleged conduct was apparent. Id. at 640, 107 S.Ct. at 3039. Since Plaintiffs have failed to identify such law, this Court finds that Plaintiffs' asserted right to due process of law is not sufficiently specific to support a claim under 42 U.S.C. § 1983.

B. Right Not To Be Defrauded by Government Officers

Respondeat superior is not a basis for liability under 42 U.S.C. § 1983. Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103...