Wilson v. Winstead, CIV-2-78-25.
| Decision Date | 22 November 1978 |
| Docket Number | No. CIV-2-78-25.,CIV-2-78-25. |
| Citation | 470 F. Supp. 263 |
| Parties | Clarence WILSON, Plaintiff, v. Heiskell H. WINSTEAD et al., Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
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Joseph J. Levitt, Jr., Knoxville, Tenn., for plaintiff.
Charles R. Terry, Morristown, Tenn., N. R. Coleman, Jr., and Gene P. Gaby, Milligan, Coleman, Fletcher, Gaby & Kilday, Greeneville, Tenn., and John F. Dugger, Bacon, Dugger & Jessee, Morristown, Tenn., for defendants.
A United States magistrate of this district recommended on April 28, 1978 that the respective motions of the defendants herein for a dismissal of this action for the plaintiff's failure to state a claim against them upon which relief can be granted, Rule 12(b)(6), Federal Rules of Civil Procedure, be granted as to the plaintiff's claim under 42 U.S.C. § 1985(3), but that the same be denied as to his claim under 42 U.S.C. § 1983. 28 U.S.C. § 636(b)(1)(B). A copy of such recommendation was mailed to counsel for each party by the clerk on the same date, and each defendant served and filed timely written objections to a portion of such recommendation. Idem. No objections were served and filed by the plaintiff.
The plaintiff failed to state a claim herein upon which relief can be granted under 42 U.S.C. § 1985(3). This statutory provision "* * * covers private conspiracies; but it was not `intended to apply to all tortious, conspiratorial interference with the rights of others.' * * *" Ohio Inns v. Nye, C.A. 6th (1976), 542 F.2d 673, 6782 (appendix), certiorari denied (1977), 430 U.S. 946, 97 S.Ct. 1583, 51 L.Ed.2d 794, quoting from Griffin v. Breckenridge (1971), 403 U.S. 88, 101, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338. "* * * For the conspiratorial conduct to be actionable under this section `there must be some racial, or perhaps otherwise class based, invidiously discriminatory animus behind the conspirators' action.' * * *" Ibid., 542 F.2d at 6783. An action brought under the provisions of 42 U.S.C. § 1985(3) must be founded on a class based invidious discrimination, Smith v. Martin, C.A. 6th (1976), 542 F.2d 688, 6903, and there is no claim stated thereunder "* * * unless it is alleged that the conspiracy invidiously discriminated against a person * * * because he was a member of a class, * * *" Ohio Inns, Inc. v. Nye, supra, 542 F.2d at 6794. See also Timson v. Wright, C.A. 6th (1976), 532 F.2d 552, 5532.
There being no allegation herein that any defendant discriminated against the plaintiff Mr. Wilson because he was a member of a class, the magistrate correctly recommended that this aspect of the plaintiff's claim be dismissed. The recommendation in this regard hereby is ACCEPTED, 28 U.S.C. § 636(b)(1), and the plaintiff's claim herein under the provisions of 42 U.S.C. § 1985(3) hereby is DISMISSED for his failure to state a claim upon which relief can be granted.
The defendants contend that they are entitled to a dismissal also of the plaintiff's claim brought under the provisions of 42 U.S.C. § 1983. In considering such motion, the Court must treat all well-pleaded allegations of the complaint as true, Miree v. DeKalb County (1977), 433 U.S. 25, 27 n.2, 97 S.Ct. 2490, 2492 n.2, 53 L.Ed.2d 557, 581 n.22b, and must construe them liberally in favor of the plaintiff, Ott v. Midland-Ross Corporation, C.A. 6th (1975), 523 F.2d 1367, 13694. Furthermore, as stated by Mr. Chief Justice Burger:
Scheuer v. Rhodes (1974), 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90, 963-5. Thus, a complaint should not be dismissed for its failure to state a claim upon which relief can be granted unless it appears beyond doubt that the plaintiff can prove no set of facts which would entitle him to relief. Ibid., 416 U.S. at 236, 94 S.Ct. at 1686, 40 L.Ed.2d at 963-5. In this circuit, dismissals of complaints brought under the civil rights statutes are scrutinized with particular care. Westlake v. Lucas, C.A. 6th (1976), 537 F.2d 857, 8581.
The defendants herein are the duly elected attorney general for the 20th judicial circuit of Tennessee and two of his assistants attorney general. Each claims that he is entitled to a dismissal of the plaintiff's remaining claim herein because, as a state prosecutor, he is absolutely immune from any liability for money damages.
In support of this contention the defendants rely upon the decision of the Supreme Court in Imbler v. Pachtman (1976), 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128. Therein, it was held "* * * only that in initiating a prosecution and in presenting the State's case, the prosecutor is immune from a civil suit for damages under 42 U.S.C. § 1983. * * *" Ibid., 424 U.S. at 431, 96 S.Ct. at 995, 47 L.Ed.2d at 144. Writing for the Court, Mr. Justice Powell noted that Mr. Pachtman's activities had been "* * * intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force. * * *" Ibid., 424 U.S. at 430, 96 S.Ct. at 995, 47 L.Ed.2d at 143. "* * * The rationale for this absolute immunity is that prosecuting attorneys perform a quasi-judicial function. * * *" Walker v. Cahalan, C.A. 6th (1976), 542 F.2d 681, 684, certiorari denied (1977), 430 U.S. 966, 97 S.Ct. 1647, 52 L.Ed.2d 357. However, a prosecuting attorney may also perform functions not quasi-judicial in nature although within the scope of his authority. Ibid., 542 F.2d at 685. As to the conduct within the scope of the prosecutor's general powers, he is not absolutely immune but must rely on the good faith defense. Ibid., 542 F.2d at 6857.
The complaint herein alleges some conduct by the defendants to which it is "* * * difficult to ascribe any judicial or quasi-judicial significance. * * *" Idem. Factual issues are presented as to the defendants' absolute immunity, and the plaintiff is entitled to offer proof thereon. Idem. Accordingly, the recommendation of the magistrate as to the plaintiff's claim under 42 U.S.C. § 1983 hereby is ACCEPTED, 28 U.S.C. § 636(b)(1), and as to this claim the motion of the defendants hereby is DENIED.
Mr. Wilson contends that, as to him, any such testimony by the plaintiff would constitute hearsay, Rule 801(c), Federal Rules of Evidence, and thus not be admissible. Rule 802, Federal Rules of Evidence. Any out-of-court statement of the defendant Mr. Weems would not be hearsay if it were offered against Mr. Weems, since such would be his own statement. Rule 801(d)(2)(A), Federal Rules of Evidence. Furthermore, to the extent that any statement of Mr. Weems is offered against Mr. Wilson, such would not be hearsay if Mr. Weems had been authorized by Mr. Wilson to make such statement, Rule 801(d)(2)(C), supra, or, if such statement was made by Mr. Weems as a coconspirator of Mr. Wilson during the course and in furtherance of a conspiracy, Rule 801(d)(2)(E), supra.2
Whether either of these conditions is met is a preliminary question on the admissibility of evidence to be determined by the Court under Rule 104(a), Federal Rules of Evidence, involving factfinding responsibilities. United States v. Enright, C.A. 6th (1978), 579 F.2d 980. Such a determination cannot be made at this time.
Mr. Wilson will have ample opportunity at trial to object to the admissibility of such testimony and, to the extent a hearing is held on such preliminary matter, such shall be conducted if the interest of justice so requires out of the hearing of the jury. Rule 104(c), Federal Rules of Evidence. In the event the disputed testimony is admitted as against Mr. Weems, but not as against Mr. Wilson, the Court, upon request, will restrict that evidence to its proper scope and instruct the jury accordingly. Rule 105, Federal Rules of Evidence.
This is an action for damages for deprivation of the plaintiff's civil rights. The defendant Mr. Winstead is the elected district attorney general of a circuit of Tennessee, and his codefendants Messrs. Weems and John K. Wilson are his appointed assistants. The plaintiff Mr. Clarence Wilson (no relation of the defendant Mr. John K. Wilson) testified that Mr. Weems approached him on February 28, 1977 and demanded weekly "* * * protection * * *" payments for the plaintiff's operation of his nightclub; that he (the plaintiff Mr. Wilson) declined to make such payments; and that Mr. Weems forewarned him that, in that event, he should "* * * expect what * * *" he "* * * would get * * *" from such prosecuting attorneys.
The defendant Mr. Weems properly made no objection to these statements of the plaintiff Mr. Wilson as against himself. They constituted obviously statements by Mr. Weems as a party against himself. However, Messrs. Winstead and John K. Wilson objected to such statements, made outside their respective...
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