Refoule v. Ellis

• Citation: 74 F. Supp. 336
• Decision Date: 10 October 1947
• Docket Number: Civ. A. No. 3227.
• Parties: REFOULE v. ELLIS et al.
• Court: U.S. District Court — Northern District of Georgia

74 F. Supp. 336

REFOULE v. ELLIS et al.

Civ. A. No. 3227.

District Court, N. D. Georgia, Atlanta Division.

October 10, 1947.

Hal Lindsay, of Atlanta, Ga., for plaintiff.

Shelton & Pharr, Ralph H. Pharr and Durwood T. Pye, County Attys., all of Atlanta, Ga., for defendants.

UNDERWOOD, District Judge.

The above case came on for hearing upon defendants' motion to dismiss.

This is an action by plaintiff, a citizen of France residing in the United States, under the Civil Rights Act, 8 U.S.C.A. § 43, for injunction and damages. It is predicated upon an alleged conspiracy between defendants, residents of Georgia and police officers of Fulton County, to deny plaintiff due process of law while acting under color of State authority by taking him into custody without warrant; thereafter illegally detaining him for long periods of time during which he was subjected to prolonged questioning in relays; inflicting violence upon his person to coerce his confession to the crime of uxoricide and other offenses; forcing him to submit to "lie-detector" tests; and other related matters alleged to be violations of his constitutional rights.

Jurisdiction is invoked because of diversity of citizenship and the amount involved and because the action is one arising under the Constitution and laws of the United States to redress deprivation of the rights to life, liberty, and property and to immunity from compulsory self-incrimination granted by the due process clause of the Fourteenth Amendment. Plaintiff seeks to restrain defendants from again taking him into custody without a lawful warrant; further questioning him except with his consent after opportunity to confer with counsel; from threatening or intimidating plaintiff or any other person with respect to any charges brought or to be brought against him; and further, to suppress any inculpatory verbal or written statements secured from plaintiff under the conditions above related and also similar statements secured from other persons by similar means.

A motion to dismiss has been filed by defendants contending substantially that this Court is without jurisdiction to grant the relief sought; that plaintiff has failed to state a case upon which relief can be granted; that no facts showing violation of the Civil Rights Act are alleged; that plaintiff has an adequate remedy at law; and that a Federal Court of equity should not interfere with the State in the administration of its criminal laws. A second "Motion to Dismiss" alleges that an indictment for sodomy has been returned against plaintiff by a Grand Jury of Fulton County, based upon verbal and written statements given by him which will be offered in evidence at his trial; and that if his constitutional rights have been infringed in the procurement of same, he can object to their introduction in evidence at the time of trial, thereby enjoying adequate protection under the law.

Jurisdiction.

Under the allegations of the complaint relating to diversity of citizenship, violation of civil rights and denial of due process of law in violation of the Fourteenth Amendment, this Court clearly has jurisdiction.

The Supreme Court said, in Chambers v. Florida, 309 U.S. 227, at page 240, 60 S.Ct. 472, at page 477, 84 L.Ed 716, after severely condemning and holding unlawful the use of "The rack, the thumbscrew, the wheel, solitary confinement, protracted questioning and cross questioning, and other ingenious forms of entrapment of the helpless," that, "We are not impressed by the argument that law enforcement methods such as those under review are necessary to uphold our laws. The Constitution proscribes such lawless means irrespective of the end. And this argument flouts the basic principle that all people must stand on an equality before the bar of justice in every American court."

In Brown v. State of Mississippi, 297 U. S. 278, 286, 56 S.Ct. 461, 465, 80 L.Ed. 682, the Supreme Court expressly held that the use of confessions obtained by such methods is "a clear denial of due process."

The decisions of the Supreme Court further hold that the action of a duly qualified officer, acting within the scope of his authority, constitutes state action, even though the particular acts complained of may not be authorized. Ex parte Commonwealth of Virginia, 100 U.S. 339, 25 L. Ed. 676; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. Such acts of responsible officers constituting state action are therefore within the prohibitions of the Fourteenth Amendment and the officers themselves are personally responsible to an injured party for such acts.

The settled construction of the Amendment is that it presupposes the possibility of an abuse by a state officer and deals with such contingency. "That is to say, the theory of the Amendment is that where an officer or other representative of a state, in the exercise of the authority with which he is clothed, misuses the power possessed to do a wrong forbidden by the Amendment, inquiry concerning whether the state has authorized the wrong is irrelevant, and the Federal judicial power is competent to afford redress for the wrong by dealing with the officer and the result of his exertion of power." Emphasis supplied. Home Telephone Co. v. Los Angeles, 227 U.S. 278, 287, 33 S.Ct. 312, 315, 57 L.Ed. 510.

Furthermore, the acts alleged come within the express prohibitions of the Civil Rights Statute the enforcement of which falls within the jurisdiction of the Federal Courts. Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.

Motions to Dismiss.

A motion to dismiss, as a matter of law, admits all well-pleaded facts alleged in the complaint. Mitchell v. Wright, 5 Cir., 154 F.2d 924, 925; Simmons v. Peavy-Welsh Lumber Co., 5 Cir., 113 F.2d 812, certiorari denied 311 U.S. 685, 61 S.Ct. 63, 85 L.Ed. 442. So considered, it can not be seriously contended that deprivation by defendants of plaintiff's civil rights and denial to him of due process of law are not sufficiently alleged in the complaint. Due process of law requires that "state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions and not infrequently are designated as `law of the land.'" Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104, 71 L.Ed. 270. "The words `due process of law' as used in the Fourteenth Amendment are intended to secure the individual from the arbitrary exercise of powers of government unrestrained by the established principles of private right and distributive justice." Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97.

No question of compulsory self-incrimination, under a procedural statute, in an orderly trial in a State court, such as that presented in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288, is here involved. Complaint is made, here, of arbitrary action by defendants under color of law in depriving him of liberty without due process of law by the exercise of personal restraint over him and confinement without a warrant, and resort to unlawful means in an effort to coerce a confession from plaintiff. While reasonable questioning of a suspect while in the custody of police officers is not prohibited either as a matter of common law or due process (Lyons v. Oklahoma, 322 U.S. 596, 601, 64 S. Ct. 1208, 88 L.Ed. 1481), "the due process clause forbids compulsion to testify by fear of hurt, torture or exhaustion" (Adamson v. California, 67 S.Ct. 1672, 1677), and "so-called third degree methods have no place in our civilization." Perrygo v. United States, 55 App.D.C. 80, 2 F.2d 181, 184. Strikingly similar violations of civil rights were considered and discussed by this Court in United States v. Sutherland, 37 F.Supp. 344, and the Supreme Court has spoken too often and too emphatically upon this subject for it to be now held that denials of due process do not appear from plaintiff's petition. See Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682; Chambers v. Florida, 309 U. S. 227, 60 S.Ct. 472, 84 L.Ed. 716; White v. Texas, 310 U.S. 530, 60 S.Ct. 1032, 84 L. Ed. 1342; Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166; Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Id., 327 U.S. 274, 66 S.Ct. 544, 90 L.Ed. 667; Malinski v. New York, 324 U.S. 401, 65 S.Ct. 181, 89 L.Ed. 1029; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406; Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676; Home Telephone Co. v. Los Angeles, 227 U.S. 278, 33 S.Ct. 312, 57 L.Ed. 510; Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.

The second "Motion to Dismiss" may be considered either as a motion to dismiss under Rules of Civil Procedure, rule 12(b), 28 U.S.C.A. following section 723c, or a Motion for Summary Judgment under Rule 56. Considered as a motion to dismiss, it can not be sustained because matters outside the scope of the pleadings are presented. "* * * A motion to dismiss for failure to state a claim on which relief may be granted is to be heard on the face of the complaint and amendments." Kohler v. Jacobs, 5 Cir., 138 F.2d 440, 441. Accord, Emmons v. Smitt, 6 Cir., 149 F.2d 869; Cohen v. United States, 8 Cir., 129 F.2d 733; Polk Co. v. Glover, 305 U.S. 5, 9, 59 S.Ct. 15, 83 L.Ed. 6, construing Equity Rule 29, 28 U.S.C.A. § 723 Appendix. Moreover, the fact that plaintiff may not be entitled to all of the relief sought does not warrant dismissal of the entire suit. "* * * under existing rules of pleading a complainant is not to be turned away unless on the facts pleaded he is entitled to no relief." Ware v. Travelers Ins. Co., 9 Cir., 150 F.2d 463, 465.

If the pleading be considered as a motion for summary judgment, it can not be sustained because directed solely to the effort of plaintiff to suppress evidence and not the entire controversy. Biggins v....