Simpson v. McVey
| Citation | 217 F. Supp. 575 |
| Decision Date | 30 April 1963 |
| Docket Number | Civ. No. 5961. |
| Parties | Clifford SIMPSON, Plaintiff, v. Hillard T. McVEY, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
Shoaff, Keegan & Baird, Ft. Wayne, Ind., Warren A. Smith, Columbus, Ohio, for plaintiff.
Joseph P. Kinneary, U. S. Atty., Robert A. Bell, Asst. U. S. Atty., Columbus, Ohio, for defendant.
A brief review of the facts preceding the trial of this matter on January 21, 1963, is as follows: On October 27, 1960, plaintiff filed a petition in the Court of Common Pleas, Franklin County, Ohio, to recover damages from defendant who allegedly "falsely, maliciously, and without reasonable or probable cause" caused the plaintiff to be arrested and incarcerated by the United States of America. On November 2, 1960, the defendant filed a petition for removal, after which plaintiff, on November 18, 1960, moved the Court to remand the action. Defendant filed his answer on November 30, 1960. On January 23, 1961, the Court entered an order which held the motion to remand in abeyance until the time of trial. On February 10, 1961, plaintiff filed a motion for a trial by jury. That motion was overruled by an order dated April 14, 1961. And on January 18, 1963, the defendant moved to dismiss the complaint for the reason that it does not state a cause of action.
On January 21, 1963, before the commencement of trial, the Court took the plaintiff's motion to remand under advisement; it is now overruled. See Conclusion of Law No. 1.
This matter has been tried to the Court without a jury. The Court having considered the pleadings, the evidence and the behavior of the witnesses on the stand, their manner of testifying and the reasonableness and the probability of their testimony, hereby makes the following Findings of Fact and Conclusions of Law.
1. On March 14, 1960, the defendant, Hillard T. McVey, was a Deputy United States Marshal, stationed at Columbus, in the office of the United States Marshal for the Southern District of Ohio.
2. On the aforesaid date, defendant received a summons and a copy of the complaint in Civil Action No. 5783, captioned United States of America v. Clifford Simpson, from the Clerk of the United States District Court, Southern District of Ohio, Eastern Division, to be served on Clifford Simpson.
3. Defendant proceeded to plaintiff's farm, parked his car on the highway in front of the farm, walked to the house and knocked on the door. A woman appeared from a barn and informed defendant that Clifford Simpson would be there in a moment.
4. Shortly thereafter, a tractor pulling a wagon came around a building. A farm hand, Alva Snyder, got off the wagon and went behind a building. The driver of the tractor, Clifford Simpson, then proceeded and brought the tractor to a stop approximately five feet from defendant.
5. Defendant asked the driver of the tractor whether he was Clifford Simpson; the response was "Maybe, who are you?"
6. Defendant identified himself as a Deputy United States Marshal. Clifford Simpson then alighted from the tractor and took a corn cutter from a place on the tractor. A corn cutter is a knife, approximately 20 inches in length, with a rounded blade.
7. Defendant then extended his arm to serve the papers upon plaintiff. Then plaintiff, while shouting curses against the wheat quota program of the United States Government, knocked the papers from defendant's hand with the corn knife. There was, however, no attempt by plaintiff to injure defendant and defendant was not at any time placed in fear of physical harm.
8. Defendant then showed plaintiff his Deputy United States Marshal badge and advised plaintiff that the summons and complaint concerned the wheat quota program.
9. Defendant was ordered off the premises by plaintiff, and he left.
10. Upon returning to his office in Columbus, defendant reported the incident to his immediate superior, Ralph Quellette, a Deputy United States Marshal in charge of the Columbus office, who reported the incident to the United States Attorney.
11. Defendant thereafter gave a written statement of the incident to Howard W. Amos, Special Agent, Federal Bureau of Investigation. Mr. Hugh K. Martin, the United States Attorney for the Southern District of Ohio, authorized the filing of a complaint charging plaintiff with violation of Title 18 U.S.C.A. § 111, opposing and impeding a United States Deputy Marshal in his duties of serving a summons.
12. Special Agent Howard W. Amos then exercised his own independent judgment and decided to sign the complaint and caused it to be filed before Robert W. Newlon, United States Commissioner. A warrant for the arrest of Clifford Simpson was issued on March 15, 1960, and he was on that day arrested at his home and taken, under detention of three agents of the Federal Bureau of Investigation, to the Federal Building in Columbus, Ohio. He was then questioned, finger-printed, photographed and incarcerated.
13. Shortly after his incarceration, plaintiff was taken before Robert W. Newlon, United States Commissioner, for a preliminary hearing. He was fully advised of his constitutional rights, waived his right to counsel and elected to proceed with the hearing. At the conclusion of the hearing, the United States Commissioner, exercising his own independent judgment, found probable cause that plaintiff had violated Title 18 U.S. C.A. § 111 and admitted plaintiff to $2,000.00 bond.
14. The matter was presented to the Grand Jury but they passed the case, i. e., they did not act upon it.
15. Subsequently, the United States Attorney moved that the complaint filed against plaintiff be dismissed and on April 28, 1960, the United States District Court signed an order to that effect.
16. Defendant was, at all times complained of by plaintiff, acting within the scope of his employment as a Deputy United States Marshal.
17. The act of the plaintiff in reaching for a corn cutter knife of the size indicated as admitted by plaintiff in the presence of the Deputy United States Marshal while lawfully serving or attempting to serve legal papers upon the plaintiff is an aggressive and improper act.
18. Plaintiff has failed to prove by a preponderance of the evidence the allegations contained in his petition.
1. The removal of this case from the Common Pleas Court of Franklin County to this Court pursuant to Title 28 U.S.C.A. § 1442(a) was proper and this Court has jurisdiction of the parties and the subject matter of this action. In Poss v. Lieberman, 299 F.2d 358, 359 (2nd Cir. 1962), cert. denied, 370 U.S. 944, 82 S.Ct. 1585, 8 L.Ed.2d 810 (1962) the Court stated:
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Green v. James, Civ. No. 70-3125.
...in evidence. The Circuit Court affirmed. Other cases which might have a bearing on the question of immunity include: Simpson v. McVey, 217 F.Supp. 575 (S.D. Ohio E.D., 1963)—(acts to be within scope of employment need not be prescribed by statute to show proper relation or connection); Simo......
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Morgan v. Willingham
...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 ......
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Herron v. Continental Airlines, Inc.
...See Klein v. Robinson, 328 F.Supp. 417, 420 (E.D.N.Y.1971), aff'd, 468 F.2d 619 (2d Cir.1972) (per curiam); Simpson v. McVey, 217 F.Supp. 575 (S.D.Ohio 1963). These cases all involved lawsuits against federal marshals engaged in serving process. Marshals do fall within the conventional mean......