Williamson v. Waugh

• Decision Date: 20 March 1958
• Docket Number: Civ. A. No. 919.
• Citation: 160 F. Supp. 72
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Jean WILLIAMSON, Plaintiff, v. Emory WAUGH, Defendant.

160 F. Supp. 72

Jean WILLIAMSON, Plaintiff, v. Emory WAUGH, Defendant.

Civ. A. No. 919.

United States District Court S. D. West Virginia, at Huntington.

March 20, 1958.

R. A. Woodall, J. J. N. Quinlan, J. E. Nelson, Huntington, W. Va., for plaintiff.

Maxwell W. Flesher, Edward H. Greene, Claude M. Morgan, Huntington, W. Va., for defendant.

HARRY E. WATKINS, District Judge.

This is an action for damages under the Civil Rights Act, 42 U.S.C.A. § 1983. The acton was originally instituted against Emory Waugh and Alma Cyrus, but only Waugh has been served with process, the Marshal's return indicating that Alma Cyrus was not found in this District. Defendant Waugh has made motions for judgment and dismissal. Taking into consideration all the allegations of the complaint, and taking as true all material facts well pleaded, I find that this action must be dismissed for the following reasons: First, the complaint fails to state a cause of action cognizable by this Court under the Civil Rights Act, because no deprivation of Civil Rights is involved. Second, the acts complained of were done by defendant as a Justice of the Peace for Cabell County, West Virginia, as a part of his official judicial duties, for which he is immune from civil liability.

The complaint alleges that defendant issued a warrant for plaintiff's arrest on a charge of issuing a check in the amount of $10 with insufficient funds in the bank to pay same. The Court will take judicial knowledge that West Virginia Code, 61-3-39 makes the issuance of a check under the amount of $20 with knowledge that there are insufficient funds in the bank to cover it, a misdemeanor and further provides that justices of the peace shall have jurisdiction over such misdemeanors. Plaintiff asserts that Alma Cyrus, the operator of a retailing establishment, deposited in the regular course of business a check bearing the name of Jean Williamson, the plaintiff, as maker. The bank refused payment thereon, and attached the usual type of notation indicating the signature was not genuine. The check and attached notation were presented to the defendant by Alma Cyrus, who signed a blank form which, when properly filled out, is commonly called a bad check information or complaint. Defendant is charged with thereafter filling in the blanks of that signed form, making the paper a complaint against the purported maker of the check, Jean Williamson. Thereupon, defendant issued a warrant for plaintiff's arrest. Plaintiff asserts that the check was a forgery. In response to the warrant, plaintiff and her counsel went to defendant's office, where plaintiff gave bond for her appearance at a later date. Upon the return date of the bond, plaintiff again appeared before defendant with her counsel, but was informed that defendant was ill and that the warrant against her, along with those against other persons, had been transferred to another Justice of the Peace in the same county. The latter informed plaintiff that the warrant had been "paid off," so no further action was taken on the warrant.

Plaintiff, a school teacher in Cabell County, West Virginia, alleges that defendant's actions were done with malice and avarice, under color of state law, causing her expense and embarrassment, and have unlawfully subjected her to a deprivation of her Constitutional rights, privileges and immunities. The complaint does not allege any discrimination between persons or classes of persons, nor does it allege any violence. There is no diversity of citizenship alleged.

Title 42 U.S.C.A. § 1983 reads as follows:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

In response to a request of the Court, counsel for the plaintiff have set forth in their brief the precise "rights, privileges, or immunities" of which plaintiff claims to have been deprived. It is plaintiff's contention that:

"Jean Williamson was deprived of her liberty without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, in that the said warrant described in the petition in this cause was issued without probable cause, and arrest made and recognizance required, in that no complaint was made accusing her of the crime of uttering or issuing a `bad check' in violation of the laws of the State of West Virginia, but her name was purposely placed on the said warrant by the said Justice in order to insure to the complaining witness, the proprietor of a retail establishment, the collection of a debt due and owing the said proprietor of the said retail establishment, Alma Cyrus, which debt, of course, Jean Williamson would be likely to discharge herself rather than undergo further shame, disgrace, humiliation, and embarrassment."

Under the authorities which will be presently discussed, I hold that these facts and allegations do not give rise to a cause of action under the Civil Rights Act. Plaintiff complains of being arrested on a charge involving a check which was forged. The charges were dismissed before a trial could be had, so that plaintiff was only required to give a recognizance, or bond; but even if she had been required to stand trial, no action would lie under the Civil Rights Act on those facts alone. As stated in Dunn v. Gazzola, 1 Cir., 216 F.2d 709, 711:

"Assuming that the plaintiff was not guilty of the offense charged, her subjection to the necessity of having to stand trial on an unfounded charge did not alone constitute a deprivation of any right, etc., secured by the Constitution of the United States."

The complaint goes further here, alleging more than an honest mistake by the defendant, but charging that his acts were done with malice and avarice, willfully and purposefully depriving plaintiff of her constitutional rights. However, her bare conclusionary allegations, unsupported in the facts alleged, will not protect the complaint from a motion to dismiss; only material facts and not the unsupported conclusions of the pleader are considered in the light most favorable to the plaintiff. Dunn v. Gazzola, supra; Agnew v. City of Compton, 9 Cir., 239 F.2d 226; McGuire v. Todd, 5 Cir., 198 F.2d 60, 63, certiorari denied 344 U.S. 835, 73 S.Ct. 44, 97 L.Ed. 649; Ortega v. Ragen, 7 Cir., 216 F.2d 561, certiorari denied 349 U.S. 940, 75 S.Ct. 786, 99 L.Ed. 1268. As stated in Yglesias v. Gulfstream Park Racing Ass'n, 5 Cir., 201 F.2d 817, 818, certiorari denied 345 U.S. 993, 73 S.Ct. 1132, 97 L.Ed. 1400:

"What we have in the substantive counts now before us is essentially a charge of false imprisonment, and perhaps malicious prosecution, to which has been added the factually unsupported allegation that plaintiff was thereby deprived of the right to due process, and other rights secured by the Fourteenth Amendment. It may be that the complaint alleges facts sufficient to support an action for false arrest or malicious prosecution. But to show that defendant deprived plaintiff of rights and immunities secured by the Fourteenth Amendment, or caused it to be done, or conspired to that end, plaintiff relies upon bare generalities and conclusions, unsupported by factual allegations. If this is sufficient, then every state court case of false imprisonment may be brought within federal jurisdiction by the mere unsupported assertion that as a consequence of such false imprisonment the plaintiff was deprived of due process, or of other rights secured by the Fourteenth Amendment. The decisions are to the contrary. It has frequently been held, and the rule is recognized in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939, 13 A.L.R.2d 383, that where the alleged claim under the Constitution or federal statutes clearly appears to be colorable, or made solely for the purpose of creating federal jurisdiction over what would otherwise be an action to vindicate a right arising only under state law, and no substantial facts establishing federal jurisdiction are alleged, mere conclusions asserting the violation of a constitutional right are insufficient. Lyons v. Weltmer, 4 Cir., 174 F.2d 473; Taylor v. Smith, 7 Cir., 167 F.2d 797, 12 A.L.R.2d 1; note 14 A.L.R. 2d Text page 1100, et seq., McGuire v. Todd, 5 Cir., 198 F.2d 60, and the many cases cited in Note 5 to that opinion, particularly Givens v. Moll, 5 Cir., 177 F.2d 765; Bottone v. Lindsley, 10 Cir., 170 F.2d 705; Moffett v. Commerce Trust Co., 8 Cir., 187 F.2d 242. See also McCartney v. State of West Virginia, 4 Cir., 156 F.2d. 739, * * *."

In the light of the above decisions from various federal courts, as well as decisions from district courts too numerous to mention, it is clear that the facts alleged in the complaint here do not support plaintiff's conclusions that she has been deprived of her civil rights. Indeed, as stated in Agnew v. City of Compton, 9 Cir., 239 F.2d 226, 231, the facts alleged belie such a conclusion.

"The purpose of the arrest was to enforce a valid ordinance here a state statute. The means employed were reasonable. No violence or unusual indignity resulted. There were no overtones of discrimination. Due process was accorded in the prompt

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