Totaro v. Lyons, Civ. A. No. M-79-2017.

• Decision Date: 19 September 1980
• Docket Number: Civ. A. No. M-79-2017.
• Citation: 498 F. Supp. 621
• Parties: Salvatore Ignatius TOTARO v. James N. LYONS, Vice President, Bank of Maryland; Russell T. Baker, Jr., United States Attorney; Donald L. Scott, Special Agent (FBI); George Cronin, Special Agent (FBI); Joseph M. McElhenny, Special Agent (FBI); Federal Bureau of Investigation.
• Court: U.S. District Court — District of Maryland

498 F. Supp. 621

Salvatore Ignatius TOTARO v. James N. LYONS, Vice President, Bank of Maryland; Russell T. Baker, Jr., United States Attorney; Donald L. Scott, Special Agent (FBI); George Cronin, Special Agent (FBI); Joseph M. McElhenny, Special Agent (FBI); Federal Bureau of Investigation.

Civ. A. No. M-79-2017.

United States District Court, D. Maryland.

September 19, 1980.

COPYRIGHT MATERIAL OMITTED

Salvatore Ignatius Totaro, pro se.

Robert H. Rosenbaum, of Riverdale, Md., for defendant James N. Lyons.

Michael J. Travieso, Asst. U. S. Atty. of Baltimore, Md., for defendants Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., Scott, Cronin, McElhenny, and Federal Bureau of Investigation.

MEMORANDUM AND ORDER

JAMES R. MILLER, Jr., District Judge.

Plaintiff who has been convicted of extortionate extensions of credit, collection of credit by extortionate means, and bank robbery, and who is presently an inmate at the United States Penitentiary at Leavenworth, Kansas, filed this action in forma pauperis. He is seeking the return of property and cash allegedly seized from his person and residence pursuant to a valid search for the fruits of the crimes for which plaintiff was convicted. His complaint requests declaratory relief, the return of seized property valued at approximately $2,000¹, and cash amounting to $2,397 as well as punitive and compensatory damages of $7,500 attorneys fees, and costs of litigation.

Plaintiff alleges jurisdiction under 28 U.S.C. §§ 2201 and 2202 (declaratory relief); under 28 U.S.C. § 1331 (deprivation of constitutional rights); under 28 U.S.C. § 1361 (mandamus to compel an officer of the United States Government to perform a duty); and under 28 U.S.C. § 1343 (redress for deprivation of constitutional rights for any act done in furtherance of a conspiracy as mentioned in 42 U.S.C. § 1985). The defendants are the United States Attorney for Maryland, one former special agent for the Federal Bureau of Investigation, two special agents of the FBI, and the Vice President of the Bank of Maryland, Hillcrest Heights, Maryland.² "Defendant" FBI³ and defendant Lyons seek to dismiss plaintiff's complaint on various grounds alleging lack of jurisdiction, failure to state a cause of action, immunity from suit, lack of a showing of conspiracy on the part of defendants, and a statute of limitations bar.

I. Statement of Facts

Plaintiff Totaro was arrested on February 27, 1975, by agents of the Federal Bureau of Investigation upon a complaint charging him with making extortionate extensions of credit in violation of 18 U.S.C. § 892 and collection of extensions of credit by extortionate means in violation of 18 U.S.C. § 894. On March 4, 1975, Totaro was indicted on the credit charges. On the same day he was separately indicted for violation of 18 U.S.C. § 2113, bank robbery. Plaintiff was tried, found guilty and sentenced in both cases. Two twenty dollar bills from a white envelope taken from plaintiff's person during a search had serial numbers corresponding with two of the "bait bills" taken during the bank robbery and were introduced into evidence at the bank robbery trial. In the instant case, it is unclear whether plaintiff includes those bills in his recovery claim.⁴ Plaintiff, as defendant in the criminal cases, filed timely motions to suppress the evidence seized in the search of his person and residence. Both motions were denied. Those motions did not request the return of any property seized.

Plaintiff is presently serving five year concurrent sentences for the extortionate credit crimes and is under a twenty year consecutive sentence for conviction of bank robbery. Plaintiff appealed the convictions in both cases. The convictions were affirmed on appeal on September 7, 1977, (credit), and on February 7, 1977 (bank robbery). The Supreme Court denied certiorari in the bank robbery case on May 6, 1977.

Plaintiff next filed a pro se "Motion for the Return of Illegally Seized Funds" pursuant to Rule 41(e) of the Fed.R.Crim.P. and a "Motion for Summary or Default Judgment" on his claim for return of the funds. The government filed a response seeking dismissal of the motions for lack of subject matter jurisdiction. The court, United States v. Totaro, 468 F.Supp. 1045 (D.Md.1979), held that jurisdiction existed over a post conviction motion for the return of seized property as being ancillary to its jurisdiction over the criminal case. The parties were directed to submit affidavits on the subject of the total amount of money seized from Totaro and the ownership or right to possession of such money.

On June 13, 1979, the court denied Totaro's motion on the merits, United States v. Totaro, 472 F.Supp. 726 (D.Md.1979), holding that the fact that the government was no longer in control or possession of the seized money was a defense to the motion for return of said funds. 472 F.Supp. at 729.

In the instant case, plaintiff asserts that at the time of his original arrest he had on his person cash in an amount in excess of $1,000, as well as a sealed envelope containing a sum of money which he later learned to be in the amount of $400. Upon a search of plaintiff, these monies were taken by the FBI agents. Plaintiff further asserts that $980.00 in cash and approximately $2,000 worth of personal property items were seized during the search of his residence. After stating that on August 8, 1978, Mr. Lyons, Vice President of the Bank of Maryland, "did accept from FBI agents the sum of $1437.00," plaintiff concludes the facts as related "disclose a concerted effort by defendants and their agents to deprive plaintiff of constitutionally secured rights." Complaint at 3.

Plaintiff argues, as his first cause of action, violation of his 5th Amendment due process rights, i. e., "taking from plaintiff property in the form of United States currency without due process of law." Plaintiff's complaint at 3. Secondly, plaintiff asserts that he was deprived of his personal property in violation of the Fifth Amendment "without due process of law in a conspiracy in violation of 42 U.S.C. § 1985(3)." Finally, plaintiff states that he has no adequate remedy at law and urges the court to grant him equitable and declaratory relief.

The affidavits submitted by plaintiff include statements by defendants Scott, Cronin, McElhenny and Lyons. These affidavits state that at the time of plaintiff's arrest, $59.00 in loose currency and $300.00 in a white envelope were seized from plaintiff Totaro and $980.00 cash was seized during the search of his residence. The affidavit of former FBI agent Scott asserts that after the appeals from the robbery conviction were concluded, and after obtaining authorization from an Assistant United States Attorney, Scott turned over to Lyons, the vice president of the bank which had been robbed, all of the funds seized from Totaro, from his co-defendant,⁵ and from the searched residence. Scott's affidavit states that the total amount he turned over to the bank was $1437.00.

The government's motion to dismiss asserts that the court lacks jurisdiction over the FBI as an entity,⁶ that the complaint fails to state a claim upon which relief can be granted, that the court lacks jurisdiction over the subject matter, and that the complaint is barred by the statute of limitations applicable to the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680.

In his motion to dismiss, Lyons states that the complaint fails to state a cause of action under 42 U.S.C. § 1985(3) since plaintiff did not allege class based discriminatory animus on the part of defendants, or any conspiracy to deprive plaintiff of equal protection rights. Lyons asserts that plaintiff's suit is barred by the statute of limitations on torts. Further the defendant argues that "if plaintiff was injured at all he was injured when the property was taken and retained by the defendants other than defendant Lyons." Defendant Lyons states that plaintiff's "injury was complete" before Agent Scott turned over the funds to Lyons. Lyons asserts that the Bank's acceptance does not "impute knowledge to Lyons or the Bank of Maryland" nor "does it suffice to make Lyons a member of the conspiracy."

II. Jurisdiction

Plaintiff's allegation of jurisdiction under 28 U.S.C. § 2201 and 28 U.S.C. § 2202 has no basis as those sections do not themselves create jurisdiction but merely add an additional remedy where the district court has jurisdiction to entertain a suit. Delavigne v. Delavigne, 530 F.2d 598 (4th Cir. 1976).

Section 1361 of Title 28 U.S.C. cannot be a jurisdictional basis for this case since the defendant United States Attorney and FBI agents are no longer in possession of the money taken from plaintiff's person and residence. See, United States v. Totaro, 472 F.Supp. at 729.

Under 28 U.S.C. § 1343, jurisdiction is not created unless the complaint at a minimum seeks recovery under one of the substantive statutes to which the jurisdictional statute relates. Nouse v. Nouse, 450 F.Supp. 97 (D.Md.1978). Although the plaintiff alleges a conspiracy under 42 U.S.C. § 1985(3), the scope of § 1985(3) actions was defined in Griffin v. Breckingridge, 403 U.S. 88, 102-3, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971):

"To come within the legislation a complaint must allege that the defendants did (1) "conspire ...," (2) "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." It must then assert that one or more of the conspirators (3) did or caused to be done, "any act or furtherance of the object of the conspiracy," whereby another was (4a) "injured in his person or property," or (4b) "deprived of having and exercising any right or privilege of a citizen of the United States."

Since plaintiff has not alleged, nor is there present in the facts, any equal protection violation, § 1985(3) is not a basis on which plaintiff can...