Windsor v. A Federal Executive Agency

• Decision Date: 25 October 1983
• Docket Number: Civ. A. No. 3-83-0509.
• Citation: 614 F. Supp. 1255
• Parties: Richard WINDSOR, Plaintiff, v. A FEDERAL EXECUTIVE AGENCY, etc., et al., Defendants.
• Court: U.S. District Court — Middle District of Tennessee

614 F. Supp. 1255

Richard WINDSOR, Plaintiff, v. A FEDERAL EXECUTIVE AGENCY, etc., et al., Defendants.

Civ. A. No. 3-83-0509.

United States District Court, M.D. Tennessee, Nashville Division.

Opinion Filed October 25, 1983.

On Leave to File Amended Complaint December 1, 1983.

On Motion for Summary Judgment February 3, 1984.

On Motion to Alter or Amend Judgment February 17, 1984.

On Motion to Perpetuate Testimony March 13, 1984.

COPYRIGHT MATERIAL OMITTED

Richard L. Windsor, pro se.

Joe Brown, U.S. Atty., Nashville, Tenn., for defendants.

MEMORANDUM OPINION AND ORDER

NEESE, Senior District Judge.

The rules governing pleading in the federal courts require a complaint to contain "* * * a short and plain statement of the claim * * *" and the averments therein must be "* * * simple, concise, and direct." Rule 8(a)(2), (e)(1), F.R.Civ.P.; see United States v. School Dist. of Ferndale, 577 F.2d 1339, 1345 (6th Cir.1978). This is the only permissible pleading authorized for filing in a federal district court. Harrell v. Directors of Bur. of Narcotics, Etc., 70 F.R.D. 444, 4462 (D.C.Tenn.1975). The complaint herein is deficient.

Mr. Windsor's complaint consists of 11 pages with a 7½-page exhibit appended thereto. He proposes to amend such complaint so as to add thereto five more pages of allegations along with some 24 pages of exhibits.¹ Since exhibits to a pleading are considered a part thereof, Rule 10(c), F.R. Civ.P., the plaintiff offers a complaint containing a total of 47½ pages. This is excessive.

Stripped of its verbosity, Mr. Windsor's claim seems to be that the defendants wronged him, by submitting to the disciplinary arm of the Supreme Court of Tennessee a document containing false information about him and that, as a proximate result thereof, he was damaged and is entitled to be compensated therefor. In the opinion of the Court, it does not require nearly four-dozen pages to state such a relatively simple claim and to outline briefly the legal grounds for recovery.

In addition to its length (and, logically, as a result), the complaint is confusing and distracting; it contains numerous allegations which are irrelevant and otherwise improper. The detailed history of Mr. Windsor's difficulties with his former employer is well-documented, see Windsor v. The Tennessean, 719 F.2d 155 (6th Cir. 1983), and need not be rehashed herein; his earlier lawsuit is a part of the records of this Court and, to the extent such might become relevant herein, the Court can take judicial notice thereof. Rule 201(b), F.R. Evid.; Harrington v. Vandalia-Butler Bd. of Ed., 649 F.2d 434, 4417 (6th Cir.1981).

"* * * The purpose of a pleading is to state the ultimate facts constituting the claim or defense relied upon in short and plain terms without pleading the evidence in support of such facts * * *." Commissioner of Internal Revenue v. Licavoli, 252 F.2d 268, 2721 (6th Cir.1958). Thus, it is not required that a plaintiff plead evidentiary matters, Mathes v. Nugent, 411 F.Supp. 968, 9728 (N.D.Ill.1976); and "* * * it has long been basic to good pleading that evidentiary matters be deleted. * * *" Control Data Corp. v. International Business Mach. Corp., 421 F.2d 323, 326 (8th Cir.1970). Mr. Windsor's complaint is replete with evidentiary statements adding nothing but confusion.

Lastly, the complaint is overly-confusing because the plaintiff has not separated adequately his different claims for relief. Although Rule 10(b), F.R.Civ.P., may not require expressly the use of separate counts in the statement of different theories of recovery, such is often desirable: "* * * Pleadings will serve the purpose of sharpening and limiting the issues only if claims based on one theory of recovery are set forth separately from those based on another theory of recovery. * * *" O'Donnell v. Elgin, J. & E. Ry. Co., 338 U.S. 384, 392, 70 S.Ct. 200, 2055, 94 L.Ed. 187 (1949).

In this Circuit, a complaint seeking relief under more than a single statute must set out the different claims separately. Distributing Company v. Glenmore Distilleries, 267 F.2d 343, 3453 (6th Cir.1959). "* * * The objective of Rule 8, supra, was to make complaints simplier, rather than more expansive. * * *" Harrell v. Directors of Bur. of Narcotics, Etc., supra, 70 F.R.D. at 4452, citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 10310, 2 L.Ed.2d 80 (1957). Obviously, that objective has not been fulfilled herein, because the complaint does not comply with the requirements of Rule 8, supra. Accordingly, it hereby is

ORDERED that, not more than 20 days herefrom, the plaintiff amend his complaint herein so as to comply substantially with Rule 8(a)(2), (e)(1), supra.²

ON LEAVE TO FILE AMENDED COMPLAINT

Although the amended complaint tendered by the plaintiff does little to promote the concept of "notice-pleading", it is at a minimum some improvement. Accordingly, the motion of the plaintiff for leave to file such complaint hereby is

GRANTED. Rule 15(a), F.R.Civ.P.

MEMORANDA OPINIONS AND ORDERS

ON MOTION FOR SUMMARY JUDGMENT

This is a civil action for damages brought by a former assistant United States attorney of this district, Richard L. Windsor, Esq., against the United States Department of Justice and certain unknown named agents of that agency. Mr. Windsor moved for a partial summary judgment (on the issue of liability), Rule 56(a), (c), F.R.Civ.P.; and the defendants moved for a dismissal inter alia for the failure of the plaintiff to state a claim upon which relief can be granted or, alternatively, for a summary judgment, Rules 12(b)(6), 56(b), F.R. Civ.P. The motion of the defendants has merit.

The thrust of Mr. Windsor's complaint¹ is that the defendants disseminated wrongfully false information concerning him to the Board of Professional Responsibility of the Supreme Court of Tennessee (the Board), which body serves as that Court's disciplinary-arm over the conduct of attorneys admitted to practice law in this state. See Rule 9, § 5, Rules of Supreme Court of Tennessee.² This is alleged to have occurred when the unknown defendants submitted to the Board a copy of an affidavit of Doug Thorensen, Esq. (the Thorensen-affidavit).³ According to Mr. Windsor, this was done to retaliate against him for his bringing of a civil action seeking to redress the circumstances surrounding his discharge from public employment.

In such affidavit, Mr. Thorensen recollects what transpired during a proffer of proof by the witness Mr. Robert Wilkerson which took place in May, 1980 at the office of the United States attorney in Nashville, Tennessee.⁴ Mr. Windsor claims that such affidavit represented falsely that during such proffer (or interview) Mr. Wilkerson did not mention the name "John Seigenthaler," whereas in fact, Mr. Wilkerson had mentioned the name of Mr. Seigenthaler.⁵

The plaintiff contends the defendants' dissemination of the Thoresen-affidavit to the Board gave rise to six separate claims for relief. First, he asserts (counts 1 & 2) against the defendant agency⁶ arising under the provisions of the Privacy Act, 5 U.S.C. § 552a.⁷ Next, Mr. Windsor seeks relief (counts 3, 4 & 6) from the individual defendants⁸ under the civil-rights conspiracy-statute, 42 U.S.C. § 1985(2), (3). And lastly, the plaintiff alleges a Bivens-type⁹ claim against the individual defendants¹⁰ which he claims arises directly under the Constitution, Fifth Amendment. See Davis v. Passman, 442 U.S. 228, 243-244, 99 S.Ct. 2264, 227622, 60 L.Ed.2d 846 (1979) (recognizing a Bivens -type cause of action for violations of the Constitution, Fifth Amendment).

I.

In count 1 of his complaint, Mr. Windsor claims that the dissemination of the false information contained in the Thoresen-affidavit to the Board violated the Privacy Act. See 5 U.S.C. § 552a(b).¹¹ The plaintiff alleges in count 2 that such affidavit was not maintained by the defendant-agency in accordance with the provisions of 28 C.F.R. § 16.56, thus violating 5 U.S.C. § 552a(g)(1).¹² The Department of Justice argues that the Thoresen-affidavit did not fall within the scope of the Privacy Act. This Court agrees:

The Privacy Act "* * * explicitly requires federal agencies to withhold records about an individual from most third parties unless the subject gives his permission. * * *" Chrysler v. Brown, 441 U.S. 281, 293, 99 S.Ct. 1705, 1713, n. 14, 60 L.Ed.2d 208 (1979). By its plain terms, however, the Act applies only to agency "records" which are contained in a "system of records", as those terms are defined in 5 U.S.C. § 552a(a)(4),¹³ (5).¹⁴ See Shapiro v. Drug Enforcement Administration, 721 F.2d 215, 217 (7th Cir.1983). The Act does not prohibit the dissemination of information which is acquired from sources other than a "record" maintained in a "system of records." Thomas v. United States Dept. of Energy, 719 F.2d 342, 345 (10th Cir. 1983); see Hanley v. United States Dept. of Justice, 623 F.2d 1138, 11391 (6th Cir. 1980).

In order to have constituted a "record" subject to the nondisclosure provisions of the Privacy Act, the Thoresen-affidavit must have been "about", or it must have "pertained to", Mr. Windsor. DePlanche v. Califano, 549 F.Supp. 685, 69612 (D.C. Mich.1982). That is to say, the information alleged to have been disclosed improperly must have "* * * reflected some quality or characteristic of the individual involved. * * *" Boyd v. Secretary of the Navy, 709 F.2d 684, 686 (11th Cir.1983), cert. den. sub nom. Boyd v. Lehman, ___ U.S. ___, 104 S.Ct. 709, 79 L.Ed.2d 173 (1984).

The pertinent legislative-history reflects that the Congress was "* * * preoccupied with information that is substantively, i.e., in and of itself, reflective of some quality or characteristic of an individual. * * *" American Federation of Gov't Emp. v. N.A.S.A., 482 F.Supp. 281, 2831 (D.C.Tex.1980). In the opinion of the Court, the information which Mr. Windsor claims was disclosed wrongfully when the defendants submitted a copy of...