Smith v. Saxbe

• Decision Date: 23 June 1977
• Docket Number: No. 75-2043,75-2043
• Citation: 562 F.2d 729,183 U.S. App. D.C. 210
• Parties: Calvin F. SMITH on behalf of himself and all others similarly situated, Appellant, v. William B. SAXBE, American Embassy in New Delhi, c/o Department of State, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 729

562 F.2d 729

183 U.S.App.D.C. 210

Calvin F. SMITH on behalf of himself and all others similarly situated, Appellant, v. William B. SAXBE, American Embassy in New Delhi, c/o Department of State, et al.

No. 75-2043.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 29, 1976.

Decided June 23, 1977.

Lawrence H. Mirel, Washington, D. C., for appellant. David T. Austern, Washington, D. C., was on the brief, for appellant.

Judith Hetherton, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and William D. Pease, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge LEVENTHAL.

LEVENTHAL, Circuit Judge:

This case comes before us on appeal from an order of the District Court granting summary judgment against plaintiff Calvin Smith, who instituted this action for damages and declaratory relief, alleging violations of his constitutional rights. We agree with the District Court that there existed no genuine issue of material fact and that defendants were entitled to their judgment as a matter of law.

I. BACKGROUND

In 1973, plaintiff was convicted of several criminal offenses in the United States District Court ¹ and committed to Lorton Reformatory, a District of Columbia Department of Corrections facility. Beginning in late 1973, the Department of Corrections permitted him to leave Lorton and visit the District of Columbia for short periods under its furlough program ² in the belief that he would honor the trust placed in him. ³ His furloughs came to an abrupt halt on September 25, 1974.

On that date, plaintiff was arrested for escape ⁴ by five agents of the Federal Bureau of Investigation at Union Station as he passed through a gate reserved for passengers with tickets and approached a train bound for New York notwithstanding the condition of his furlough that restricted him to the District of Columbia. The agents discovered a shotgun and four shells in a suitbag he carried. After taking him to their field office for booking, they returned him to custody. Shortly thereafter, he was transferred to the federal penitentiary in Lewisburg, Pennsylvania. ⁵ No prosecution was brought against him on the escape charge.

On February 27, 1975, plaintiff, by his counsel, filed this action ⁶ against William Saxbe, the former Attorney General, Clarence M. Kelley, the Director of the Federal Bureau of Investigation, certain unknown agents of the Federal Bureau of Investigation who participated in plaintiff's arrest, and Edward Fitzgerald, an employee of the Public Defender Service and an FBI informant, according to the complaint. ⁷ Plaintiff maintained that the defendants violated his fourth amendment rights by arresting him without probable cause, and by failing to present or arraign him before a magistrate after his arrest. ⁸ The defendants also allegedly violated Smith's due process rights by not according him administrative hearings before his furlough terminated and before he was transferred from Lorton Reformatory to Lewisburg Penitentiary. Relying upon the fact that the Attorney General had curtailed the Washington, D. C. furlough program six days after his arrest, ⁹ plaintiff also alleged that the defendants had conspired together to frame him on an escape charge in order to marshal public opinion against the furlough program. According to his complaint, defendant Fitzgerald lured plaintiff to Union Station on the pretext of giving him copies of certain legal documents. At the station, Fitzgerald allegedly informed Smith that he, Fitzgerald, had to catch a train and that his companion was missing. Fitzgerald then handed Smith a suitbox and a railroad ticket and asked him to help him search for his missing companion. Plaintiff claimed that he was arrested while searching for Fitzgerald's companion and that the agents knew that he did not intend to board the train because the defendants had fabricated the incriminating situation.

On June 30, 1975, defendants Kelley, Saxbe, and the agents ("federal defendants") moved for summary judgment. ¹⁰ In support of their motion, they submitted affidavits of the seven agents who had participated in the arrest. These interlocking affidavits contradicted plaintiff's allegation of a trumped-up arrest. Each affidavit provided detailed accounts of the events leading up to plaintiff's arrest, demonstrating that the arrest was made in the course of regular law enforcement activities. According to these seven affidavits, the arrest occurred because the agents received a tip as to Smith's criminal plans from an informant who was personally acquainted with Smith. ¹¹

On August 29, 1975, plaintiff responded to the federal defendants' June 30th motion by submitting a "Statement of Material Facts As to Which a Genuine Issue Exists", and a memorandum of points and authorities. Plaintiff did not file any affidavits in opposition to the government's motion. By order dated September 12, 1975, the District Court granted the federal defendants' motion for summary judgment and dismissed the complaint against Edward Fitzgerald for lack of prosecution. Plaintiff appealed from the grant of summary judgment. ¹²

II. ARREST

Plaintiff's first challenge to the ruling below is based upon his contention that summary judgment was improper because factual issues relating to the existence of probable cause for the arrest and of conspiracy were raised by his complaint. We find this contention unavailing in light of his failure to adduce evidentiary support for his theory of the facts when confronted with the defendants' motion and supporting affidavits.

Under Rule 56(e) of the Federal Rules of Civil Procedure, a party opposing a motion for summary judgment cannot rest on the allegations in his complaint, but must come forward with evidentiary affidavits; otherwise, the undisputed statements contained in the movant's affidavits are taken as true. Fitzke v. Shappell, 468 F.2d 1072, 1077 (6th Cir. 1972). The movant's opponent can stave off summary judgment by filing an affidavit under Rule 56(f) explaining why "he cannot . . . present by affidavit facts essential to justify his opposition."

In the instant case, plaintiff failed to create an issue of fact as to the arrest. Notwithstanding his allegations that the defendants conspired to falsely create the impression that he was escaping and that the agents lacked probable cause to arrest him, the District Court properly rejected these claims.

Plaintiff's allegations would have warranted a trial if they had been substantiated, but they were not. They were contradicted by the seven agents' sworn affidavits, which were uncontroverted by evidentiary affidavits. The agents' affidavits established probable cause to arrest based on information reliably obtained by a reliable informant. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), United States v. Carter, 162 U.S.App.D.C. 132, 498 F.2d 83 (1974). The affidavits established (a) that the informant was reliable: he had accurately informed the agents that Smith would attempt to recover a briefcase containing a gun at Union Station only one month previous to the arrest, and (b) that he had acquired his information in a reliable manner: he told the agents he had acquired his detailed information first hand from Smith who attempted to enlist the informant as an accomplice in his plan to go to New York.

Even without relying upon the informant, the agents knew, according to their affidavits, that Smith's furlough restricted him to the District of Columbia, and they did not arrest him until he passed through the gate reserved for boarding passengers and approached the train. That provided probable cause to believe that Smith was committing the felony of escape in their presence. See Ford v. United States, 122 U.S.App.D.C. 259, 352 F.2d 927 (1965).

The affidavits also established that defendants Saxbe and Kelley had no involvement with the arrest; ¹³ each agent attested to the fact that he had no knowledge of any misconduct on the part of any federal official and no contact with defendants Saxbe or Kelley or their representatives. ¹⁴

Plaintiff sought to rely upon his bare complaint to create an issue of fact. That course is impermissible under Fed.R.Civ.P. 56(e). See First National Bank v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); Williams v. Howard University, 174 U.S.App.D.C. 85, 87, 528 F.2d 658, 660 (1976). Summary judgment was properly awarded to defendants for failure of Smith to raise a genuine issue of material fact as to the arrest.

III. HEARINGS

Plaintiff's remaining attacks on the judgment challenge only the legal conclusions of the district court. The material facts relating to the remaining issues are not in dispute. ¹⁵ Plaintiff first urges that the defendants violated his due process rights by failing to accord him an administrative hearing on the termination of his furlough.

Smith's interest in continuing his ongoing furlough on September 25th and his expectation of receiving future furloughs is not a "liberty" interest entitled to procedural safeguards under the due process clause of the Fifth Amendment. We are guided by two recent Supreme Court decisions, Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976). They make clear that even substantial adverse changes in confinement do not automatically implicate due process safeguards. Unless the government has treated the benefit as one defeasible only on the occurrence of specified events, withdrawal of the benefit falls outside constitutional protection. Where withdrawal of the benefit is within the discretion of the authorities, no protected liberty interest in the benefit arises. Applying this analysis in ...