Smallwood v. United States

• Citation: 358 F. Supp. 398
• Decision Date: 23 April 1973
• Docket Number: Civ. No. 72 C 635(A).
• Court: U.S. District Court — Eastern District of Missouri
• Parties: Donald P. SMALLWOOD, pro se, Plaintiff, v. UNITED STATES of America et al., Defendants.

358 F. Supp. 398

Donald P. SMALLWOOD, pro se, Plaintiff, v. UNITED STATES of America et al., Defendants.

Civ. No. 72 C 635(A).

United States District Court, E. D. Missouri, E. D.

April 23, 1973.

COPYRIGHT MATERIAL OMITTED

Donald Smallwood, pro se.

Paul Gonson, S. E. C., Harlington Wood, Jr., Asst. Atty. Gen., Michael M. Hunter, Civil Div., Dept. of Justice, Washington, D. C., for defendants.

OPINION AND ORDER

POOS, District Judge.

This matter came before the Court on the Complaint of the Plaintiff alleging that the Defendants have conspired to deprive him of "liberty and property" in violation of the constitutional protection afforded these civil rights. Plaintiff alleges jurisdiction under 28 U.S.C., Sections 1331, 1343, 1346 and 1361; 18 U. S.C., Section 3231; and 42 U.S.C., Sections 1983 and 1988. In terms of relief, Plaintiff seeks a complete investigation into all court actions in Civil Action No. 69-C-57(2), Criminal Action No. 69-Cr-82(1), and Bankruptcy No. 69-B-569; a permanent restraining order enjoining all defendants from getting rid of all or any records, writings and receipts in the above named actions; to stop all proceedings in the Bankruptcy Action No. 69-B-569; an order requiring the Receiver, Trustee, Attorney for the Trustee, and the Bankruptcy Referee to account for all monies received and spent in Bankruptcy Action No. 69-B-569 and Civil Action No. 69-C-57(2); the criminal prosecution of the defendants; monetary damages in the amount of Twenty-five Million Dollars ($25,000,000); release from prison, and an order enjoining defendants from conspiring against Plaintiff by engaging in acts violative of the many and diverse statutory provisions alleged in the Complaint.

Plaintiff is presently incarcerated at the United States Penitentiary, Terre Haute, Indiana, serving a 35-year sentence imposed following his 1969 conviction by a jury on multiple counts of securities fraud, mail fraud, and mailing an unregistered security. This conviction was affirmed by the Eighth Circuit Court of Appeals in United States v. Smallwood, 443 F.2d 535 (8 Cir. 1971), and certiorari was later denied by the Supreme Court, 404 U.S. 853, 92 S.Ct. 95, 30 L.Ed.2d 93 (1971). Plaintiff's motion pursuant to 28 U.S.C., Section 2255 to vacate judgment and sentence was duly considered and denied. Smallwood v. United States, U.S.D.C., E.D. Missouri, Civil Action No. 72-C-333(a), Memorandum and Order filed September 19, 1972. Plaintiff's allegations herein relate to the criminal proceeding, (originally numbered 69-Cr-82(1), a civil action 69-C-57(2) brought by the Securities and Exchange Commission against Plaintiff, the corporation of which Plaintiff was the primary executive officer (Diversified Brokers Company, Inc.), and two other individuals, wherein plaintiff consented to appointment of a receiver for the company and a bankruptcy action in the matter of Diversified Brokers Company, Inc. (69-B-569).

All defendants have moved to dismiss the Complaint and for Summary Judgment. The Security and Exchange Commission, Harry O. Moline and John F. Kern (hereinafter referred to as the "S. E.C. defendants"), move to dismiss on the grounds that they are immune from suit for acts performed in the exercise of their official responsibilities. The remaining defendants (hereinafter referred to solely as "defendants"), base their Motion to Dismiss on the grounds of judicial immunity. Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, these Motions shall be treated as a Motion for Summary Judgment.

I.

In one way or another each defendant was involved in the above mentioned court proceedings involving the Plaintiff. The following facts have been summarized from the court records in the several actions, and from the affidavits submitted.

On February 17, 1969, defendant Securities and Exchange Commission, by its attorneys, defendants John F. Kern and Harry O. Moline, Jr., filed a complaint against Diversified Brokers Company, Inc., and Plaintiff, charging violations of the Securities Act of 1933 (Civil Action No. 69-C-57(2). Ten days later, on February 27, 1969, Plaintiff and two associates consented in writing to a final judgment enjoining Diversified Brokers from violating the Securities Act, and appointing a Receiver to take charge of corporate property and assets. In the normal case assignment procedures of the District Court for the Eastern District of Missouri, this action was assigned to the docket of defendant Judge James H. Meredith. Inasmuch as Judge Meredith was absent from the District at the time the Complaint was filed, and also when the hearing on Motion for Preliminary Injunction was held, defendant Judge John K. Regan sat in his place during the initial receivership proceedings, signing the Final Judgment, whereby defendant Stuart Symington, Jr., was appointed Receiver and "ordered to enter into bond in the sum of $50,000 with surety to be approved by the Court."

Pursuant to the February 27th judgment, defendant Symington took possession of the corporate offices and their contents, and also obtained numerous files and records from the offices of defendants Harold L. Satz and Theodore D. Ponfil, then attorneys for Diversified Brokers. On March 19, 1969 the Receiver (defendant Symington) was served with subpoenas to appear before the Grand Jury and to take with him "any and all records referring or relating to Diversified Brokers Company, Inc."

Thereafter, the Grand Jury handed down a multiple count indictment pursuant to which plaintiff was convicted with two associates in Criminal Action No. 69-Cr-82(1) in a jury trial presided over by defendant Senior Judge Roy W. Harper. In addition, Senior Judge Harper held several hearings ancillary to the criminal trial, including imposition of the sentence which plaintiff is currently serving. The Assistant United States Attorney responsible for trying the criminal action was defendant Jim J. Shoemake, defendant Daniel Bartlett, Jr., appointed United States Attorney on May 6, 1969, after commencement of the receivership action, and also following return of the indictment against plaintiff, assumed general responsibility for these cases in his capacity as United States Attorney, and also participated in trying the criminal action. Under defendant Bartlett's supervision, the office of the United States Attorney also represented the Government before the Eighth Circuit Court of Appeals upon plaintiff's appeal thereto from the jury conviction and sentence imposition in 69-Cr-82(1).

On March 28, 1969, a creditors' petition in bankruptcy was filed against Diversified Brokers Company, Inc., (Cause No. 69-B-569), and on April 22, 1969 said Corporation, of which plaintiff was President, was adjudicated a bankrupt by the United States District Court for the Eastern District of Missouri.

Defendant Robert E. Brauer, Referee in Bankruptcy, was assigned to conduct the proceedings in accordance with the bankruptcy laws of the United States. At the first meeting of creditors on June 6, 1969, defendant John A. Nooney was nominated and elected Trustee of the Bankrupt. On June 19, 1969 defendant Nooney's bond as Trustee was filed and approved, defendant Nooney thereafter being the duly qualified Trustee. The Receivership estate was terminated and closed by court order of June 25, 1970, with all assets, property and claims of Diversified Brokers being turned over to defendant Nooney as Trustee in Bankruptcy, and defendant Symington was thereupon discharged as Receiver having fully performed all duties required of him as Receiver of Diversified Brokers. On June 26, 1969, on petition of the Trustee, the Trustee was authorized to and did appoint defendant Symington as attorney for the Trustee, in which capacity alone did defendant Symington thereafter serve the estate of the bankrupt Diversified Brokers. On occasion, during his absence from St. Louis, defendant Symington has authorized two of his associates in legal practice, defendants Thomas J. Guilfoil and Sanford S. Neuman, to act as his agents in matters relating to his official responsibilities as Court-appointed Receiver, and thereafter as appointed Attorney for the Trustee in Bankruptcy.

II.

Defendants Judge Roy W. Harper, Judge James H. Meredith and Judge John K. Regan are sued in their official capacity as Judges of the United States District Court for the Eastern District of Missouri. The conduct of the Judges complained of by plaintiff herein is confined by plaintiff's allegations to their official conduct with respect to the actions in which they had judicial responsibility.

The principle is well established that judicial officers are immune from suits for money damages for acts performed in the discharge of their official duties. Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1971); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Schwartz v. Weinstein, 459 F.2d 882 (8th Cir. 1972); Jacobson v. Shaefer, 441 F.2d 127 (7th Cir. 1971); Wilhelm v. Turner, 431 F.2d 177 (8th Cir. 1970), cert. denied, 401 U.S. 947, 91 S.Ct. 919, 28 L. Ed.2d 230 (1971); O'Bryan v. Chandler, 352 F.2d 987 (10th Cir. 1965), cert. denied, 384 U.S. 926, 86 S.Ct. 1444, 16 L. Ed.2d 530 (1966); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964); Meredith v. Van Oosterhout, 286 F.2d 216 (8th Cir. 1960), cert. denied, 365 U.S. 835, 81 S. Ct. 749, 5 L.Ed.2d 745 (1961).

One of the first major cases dealing with judicial immunity from suit is Bradley v. Fisher, 13 Wall. 335, 80 U.S. 335, 20 L.Ed. 646 (1871). In that case the plaintiff, an attorney, had sued to recover damages from the defendant, a Justice of the Supreme Court of the District of Columbia, who had ordered plaintiff's name stricken from the roll of attorneys as a result of certain remarks the plaintiff had made to him during a murder trial. The Court held that the Judge was immune from suit as long as he had jurisdiction of the subject matter, no matter...