Ware v. Barr

• Decision Date: 14 April 1995
• Docket Number: No. 93-1172-CIV-T-17,93-1173-CIV-T-17.,93-1172-CIV-T-17
• Citation: Ware v. Barr, 883 F.Supp. 654 (M.D. Fla. 1995)
• Parties: Frank Andre WARE, Plaintiff, v. William P. BARR, et al., Defendants. Frank Andre WARE, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Florida

883 F. Supp. 654

Frank Andre WARE, Plaintiff, v. William P. BARR, et al., Defendants.

Frank Andre WARE, Plaintiff, v. UNITED STATES of America, Defendant.

Nos. 93-1172-CIV-T-17, 93-1173-CIV-T-17.

United States District Court, M.D. Florida, Tampa Division.

April 14, 1995.

Mina Jane Morgan, Mitcham, Weed, Barbas, Allen & Morgan, Tampa, FL, John S. McAvoy, Law Office of John S. McAvoy, Clearwater, FL, Anthony P. Gauthier, Thomas Patrick Howard, Law, Weathers & Richardson, Grand Rapids, MI, for plaintiff in No. 93-1172-CIV-T-17.

Frank Andre Ware, Kalamazoo, MI, pro se.

Whitney L. Schmidt, U.S. Attorney's Office, M.D.Fla., Tampa, FL, Ruth Ann Ernst, U.S. Attorney's Office, Grand Rapids, MI, for defendants.

Ellen S. Carmody, Anthony P. Gauthier, Thomas Patrick Howard, Law, Weathers & Richardson, Grand Rapids, MI, for plaintiff in No. 93-1173-CIV-T-17.

ORDER

KOVACHEVICH, District Judge.

This cause is before the Court on Defendant F.B.I. Special Agent Clifford Hedges' Motion to Dismiss or, in the alternative, Motion for Summary Judgment (Docket No. 143) and Memorandum of Law in Support of said motion (Docket No. 144), filed on February 6, 1995, in these consolidated cases. Plaintiff filed his brief in opposition to Defendant's motion (Docket No. 148) on March 24, 1995. The motions and memoranda address counts II and III of Plaintiff's Amended Complaint. The Court, having considered the motions, memoranda and record, holds that Count II must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). As to Count III, the Court has referred to material outside the pleadings submitted by both parties in order to resolve the issues raised and considers Defendant's motion as to this count to be for summary judgment. Fed.R.Civ.P. 12(b)(6).

FACTS

In April, 1989, Plaintiff, Frank Andre Ware, and George Pedrolini were arrested by the Pasco County Sheriff's Office for possession of approximately four (4) kilograms of cocaine and several weapons. The arrest followed an extensive investigation by the Federal Bureau of Investigation (the "FBI"), under the direction of Special Agent Cliff Hedges. Soon after the arrest, the grand jury sitting in the United States District Court for the Middle District of Florida returned an indictment, charging Plaintiff and Pedrolini with conspiracy to possess with the intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846, and with possession with intent to distribute the cocaine, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.

A detention hearing was held before United States Magistrate Paul Game, Jr., and by order dated May 18, 1989, Magistrate Game found that there was probable cause to believe that Plaintiff had committed an offense, for which a maximum term of imprisonment of ten years or more was prescribed, and further and expressly, finding that Plaintiff had "no employment or other substantial ties with this or any other community; that Ware was in the possession of a weapon at the time of arrest; that there was a serious threat that Ware would flee; and that Ware's release would cause a danger to the community."

Shortly thereafter, Pedrolini entered into a plea agreement and testified against Ware in a criminal trial in this division in August, 1989. Subsequently, Ware was convicted by a jury on all counts of the indictment. From the time of his arrest through his conviction, Plaintiff continuously maintained his innocence.

While serving his sentence in Milan, Michigan, Plaintiff sent a Freedom of Information Act ("FOIA") request to the FBI. The FBI responded with documents indicating that on June 6, 1989, Special Agent Hedges had made a request that the FBI Latent Fingerprint Division, in Washington, D.C., conduct a fingerprint analysis of the money seized in the investigation of Ware and Pedrolini. The information provided by the FBI also indicated that on July 7, 1989, the Latent Fingerprint Division sent a report that acknowledged finding sixty-eight (68) fingerprints and two (2) palm prints on the bills and that none of these prints belonged to Plaintiff.

On February 26, 1992, United States District Judge William Castagna entered an order vacating Plaintiff's judgment and conviction. The basis for the order was that the fingerprint report prepared by the FBI Identification Unit had not been provided to Plaintiff before trial. The court found this to be a violation of the mandate of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). United States v. Ware, Case No. 89-92-Cr-T-15, See, Order Vacating Judgment and Sentence, February 26, 1992. Following the order vacating the judgment and conviction, a new jury trial was held in May, 1992, and Plaintiff was acquitted.

The current claims before this Court include a claim of conspiracy between Assistant United States Attorney Dennis Moore, the prosecutor in the first criminal trial, and Defendant Clifford Hedges, to deprive Plaintiff of his constitutional rights, in violation of 42 U.S.C. § 1985(3), and a claim for constitutional rights violations based upon the United States Supreme Court decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

DISCUSSION

I. Rule 12(b)(6) Standard

A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the pleadings. In deciding a 12(b)(6) motion, the court must determine whether Plaintiff's complaint sets forth sufficient allegations to establish a claim for relief. The court must accept all allegations in the complaint at "face value" and construe them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

The complaint must set forth enough information to outline the elements of a claim. Conclusory allegations are not acceptable where no facts are alleged to support the conclusion. The court cannot dismiss Plaintiff's complaint unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

II. The Claim Under 42 U.S.C. § 1985(3)

Title 42 U.S.C. § 1985(3) provides a remedy for conspiracy to deprive, either directly or indirectly, any person or class of persons, of the equal protection of the laws. The United States Supreme Court has narrowed this broad language and requires a plaintiff, in order to state a claim, to allege that the defendants entered into a conspiracy motivated "by some racial or perhaps otherwise class-based invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

Plaintiff makes the § 1985(3) claim in Count II of Plaintiff's Amended Complaint. Review of this claim for relief reveals that it is devoid of any allegation whatsoever of racially discriminatory animus. This failure in the pleading requires dismissal pursuant to Rule 12(b)(6).

However, even if this allegation were to appear in the complaint, summary judgment would be appropriate. Upon review of the plaintiff's deposition testimony, it appears that the only factual basis for this claim is that Plaintiff is black and the alleged co-conspirators are white. Because of this fact, Plaintiff apparently expects a jury to infer a racially discriminatory animus. In short, this type of argument, without more, would not be sufficient to survive summary judgment on this claim. See Herrmann v. Moore, 576 F.2d 453, 457 (2d Cir.1978).

III. Summary Judgment Standard

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

The plain language of Rule 56(c) mandates the entry of summary judgment after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no `genuine issue of material fact', since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of the case with respect to which that party has the burden of proof.

Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. That burden can be discharged by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 323 and 325, 106 S.Ct. at 2552 and 2554.

Issues of fact are "`genuine' only if a reasonable jury, considering the evidence presented could find for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). Material facts are those which will affect the outcome of the trial under governing law. Id. at 248, 106 S.Ct. at 2510. In determining whether a material fact exists, the court must consider all evidence in the light most favorable to the nonmoving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983).

IV. Bivens Action

This claim is based upon the alleged deprivation of Plaintiff's constitutional due process rights, due to the failure of the Defendant to provide the fingerprint reports to the defense. The result of the motion for summary judgment on this claim turns on the issue of qualified immunity,...