Waller v. Butkovich, Civ. A. No. C-80-605G.

CourtUnited States District Courts. 4th Circuit. Middle District of North Carolina
Citation584 F. Supp. 909
Docket NumberCiv. A. No. C-80-605G.
PartiesJames WALLER, et al., Plaintiffs, v. Bernard BUTKOVICH, et al., Defendants.
Decision Date17 April 1984










P. Lewis Pitts, Jr., Greensboro, N.C., Carolyn McAllaster, Durham, N.C., Dan Sheehan, Washington, D.C., Stewart Kwoh, New York City, Dennis Cunningham, Chicago, Ill., James McNamara, Columbus, Ohio, Susan Sturm, Amer. Civ. Liberties, New York City, for plaintiffs.

Virgil Griffin, David Wayne Matthews, Lawrence Gene Morgan, Coleman Blair

Pridmore, Lisford Carl Nappier, Sr., Jerry Paul Smith, Edward W. Dawson, Michael Eugene Clinton, Roy Clinton Toney, Roland Wayne Wood, Claude Matthew McBride, Jr., Rayford Milano Caudle, Jack Wilson Fowler, Jr., Harold Covington, Gorrell Pierce and Mark Sherer, pro se.

Kenneth W. McAllister, U.S. Atty., Greensboro, N.C., for Butkovich, Pelczar, Pence, Moses, Westra and Conroy.

Charles E. Nichols, Fred T. Hamlet, Kenneth Kyre, Jr., Jesse L. Warren, City Atty., Greensboro, N.C., for remaining defendants.


MERHIGE, District Judge.

The complaint filed herein arises out of a violent, conspiratorial attack that members of the Ku Klux Klan (Klan) and the American Nazi Party allegedly perpetrated against participants in an anti-Klan rally in Greensboro, North Carolina on November 3, 1979. The complaint charges various local, state, and federal government officials and agencies, as well as alleged members of the Klan and the Nazi Party, with complicity in the attack and in an ensuing cover-up of the alleged official involvement in the attack. There are sixteen plaintiffs and 87 named defendants.1

In its fourteen counts the complaint purports to state causes of action under federal civil rights statutes 42 U.S.C. ? 1981, ? 1983, ? 1985(3) and ? 1986, under the laws of North Carolina, and directly under the Constitution. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Jurisdiction over the federal claims is premised on 28 U.S.C. ? 1331 and ? 1343. Plaintiffs additionally pray the Court to exercise jurisdiction over the state law claims under the doctrine of pendent jurisdiction.

There are a number of outstanding motions now before the Court. The plaintiffs have filed two motions to amend. The first seeks to add an additional plaintiff; the second seeks to add additional material to certain parts of the complaint. The government officials and agencies named in the complaint have filed motions pursuant to Fed.R.Civ.P. 12(b)(1), (2), (5) and (6), seeking dismissal of some or all of the claims against them. Finally, a number of the defendants who are described in the complaint as Klan or Nazi Party members have filed pro se motions for appointment of counsel. The parties having voluminously briefed the relevant issues and the Court having entertained argument thereon, these matters are now ripe for disposition.


Plaintiffs have moved to add an additional plaintiff, Claire Butler, to the complaint. Her claims, however, are undoubtedly barred by the appropriate statute of limitations. An amendment may be denied if it would prove futile, as in this instance. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The motion will be denied.

Plaintiffs have additionally moved to amend the text of the complaint in a number of respects. They seek to "specify further" that one of the defendants, District Attorney Schlosser, is charged with participation in a conspiracy in advance of the attack as well as in the cover-up. They seek also to "specify further" their claims for injunctive relief. In the Court's opinion, those amendments go substantially beyond the second amended complaint filed almost two years ago. No just reason for the delay has been given, and the proposed amendments would substantially prejudice the defendants. See United States v. Hougham, 364 U.S. 310, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960); Fed.R.Civ.P. 15(a). Additionally, the proffered further specifications are insufficient to remedy the lack of specificity in the present complaint as discussed infra.

The remaining proposed changes are mooted by virtue of the Court's resolutions of the pending motions to dismiss. The motion to amend will be denied.


The government officials and agencies charged ("the moving defendants") have moved for dismissal on numerous grounds, which can be briefly summarized here. The agencies and the officials in their official capacities seek dismissal under Fed.R. Civ.P. 12(b)(1), contending that absolute sovereign immunity deprives the Court of jurisdiction over the action as against them. Defendant Schlosser, a District Attorney for the State of North Carolina, seeks dismissal on the ground of prosecutorial immunity. The federal employees sued in their individual capacities move for dismissal under Fed.R.Civ.P. 12(b)(2) and (5) for lack of personal jurisdiction and insufficiency of service of process.

All the moving defendants seek to have the entire complaint dismissed for failure to comply with the Fed.R.Civ.P. 8(a) requirement of a "short and plain" statement of the claim and for failure to comply with the Magistrate's order of February 26, 1982, which directed the plaintiffs to comply with Rule 8(a). Barring that, they seek dismissal under Fed.R.Civ.P. 12(b)(6) of the ? 1985(3) conspiracy claim, on the ground that even if the allegations are taken to be true, they do not satisfy the requisite "discriminatory animus" element of a ? 1985(3) cause of action. The federal officials move under Rule 12(b)(6) for dismissal of the ? 1985(3) and ? 1986 counts against them on the grounds that claims pursuant to those provisions are not actionable against federal officials. The defendants charged with complicity in the alleged cover-up move under Rule 12(b)(6) for dismissal of the ? 1983, ? 1985(3), and Bivens actions against them on the ground that even if there were a cover-up, the complaint does not state any actionable injury resulting from it.

The local and federal law enforcement officials move under Rule 12(b)(6) to dismiss the ? 1983, Bivens, ? 1986 counts against them insofar as those counts charge them with failing to provide the plaintiffs police protection, to which, they argue, the plaintiffs had no actionable right. All of the moving defendants seek dismissal of the ? 1981 count, under Rule 12(b)(6) for failure to state a claim under that statute. A number of the officials charged contend that they are included in the complaint solely because they occupied supervisory positions over their defendants; because, they argue, the doctrine of respondeat superior is not applicable to the causes of action asserted, they are entitled to dismissal under Rule 12(b)(6). The City of Greensboro seeks dismissal of the claims against it for failure to comply with a city ordinance requiring prompt notice to the city of claims against it.

All of the defendants urge the Court to decline to exercise pendent jurisdiction over the state law claims.

Before the Court proceeds to address these contentions, some further description of the parties to the case and of the allegations in the complaint is in order, as it may prove to be a useful preface to the discussions that follow. It should be noted that in this description as well as in the discussions that follow, excepting only the discussions of the service of process and jurisdictional contentions, the Court will accept the allegations of the complaint as true, as the law requires it to do. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nothing herein should be taken as indicating any view on the validity of the allegations of the complaint. Any comments that might be interpreted as such should be understood rather as simply the consequence of the Court's adherence to the legally prescribed standard of review at this stage in the pleadings.

The complaint names 87 defendants. They can be grouped in various ways, but probably the most convenient groupings for the sake of these motions are those used in the complaint. In adopting those groupings for convenience reasons, the Court stresses that it does not pass any judgment on the accuracy of the labels used. In particular, in referring to certain defendants as "the Klan defendants" or "the Nazi defendants," the Court means only to signify those defendants who are alleged to be Klan or Nazi Party members.

The defendants are summarized in the following chart.

                Private Defendants
                Klan Defendants:                                  13 Named Individuals
                Nazi Defendants:                                   7 Named Individuals
                Informant Defendants:                             Dawson, Butkovich
                Local Defendants
                Greensboro Police Defendants:                     34 Named Officers, including Swing
                                                                  (Chief of Police)
                Greensboro City Officials:                        Melvin (Mayor), Osborne (City Manager)
                                                                  Lovelace (Director of Public
                City of Greensboro:                               )
                                                                  ) "Agency Defendants"
                Greensboro Police Department:                     )
                State Defendants
                State Bureau of Investigation (SBI) Defendants:   Starling (Director), Ray (Agent)
                Hunt (Governor)
                Schlosser (District Attorney)
                Mitchell (Director of State Department
                  of Crime Control and Public Safety)
                State of North Carolina                           )
                                                                  ) "Agency Defendants"

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