The opinion of the court was delivered by: WERKER
Plaintiff, James Lofland, has filed this pro se complaint for money damages alleging that his conviction for criminal fraud in a prior suit brought by the United States was the result of defendants' intentional, malicious, and wanton violation of plaintiff's constitutional and civil rights. Defendants now seek to dismiss the complaint pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted; defendants also move for summary judgment pursuant to rule 56 of the Federal Rules of Civil Procedure.
The complaint alleges that defendants violated plaintiff's rights under 42 U.S.C. § 1981 and § 1985 by (1) intentionally conducting an illegal search of plaintiff's property in Liberal, Kansas and removing papers and documents which were later used for the prosecution of plaintiff in a prior criminal action, (2) fabricating false evidence, (3) withholding evidence, (4) solicting perjured testimony, and (5) committing perjury by testifying to false testimony. Defendants in the instant action are the Assistant United States Attorney who prosecuted the aforementioned criminal action, Jed Rakoff; two special agents of the Federal Bureau of Investigation, Thomas Meyers and an unnamed agent; and three government witnesses, Bing Bennett, Esther Armstrong, and Lester McGhee. Plaintiff seeks two million dollars against each of the defendants except the Assistant United States Attorney, Rakoff, against whom plaintiff wishes the court to grant whatever relief the court deems appropriate.
Jurisdiction for the court to hear claims pursuant to 42 U.S.C. §§ 1981 and 1985 is alleged under 28 U.S.C. § 1343 (civil rights violations); jurisdiction for the court to hear constitutional claims is alleged under 28 U.S.C. § 1331 (federal question). However, as will be shown, this court will entertain jurisdiction only under 28 U.S.C. § 1331 (1970).
Application of section 1981 of title 42 is limited to instances of racial discrimination. Pyles v. Keane, 418 F. Supp. 269, 271 n.1 (S.D.N.Y.1976); Dunleavy v. Ternullo, 410 F. Supp. 1166, 1168 (S.D.N.Y.1976); Arnold v. Tiffany, 359 F. Supp. 1034, 1035 (C.D.Cal.1973), aff'd 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984, 94 S. Ct. 1578, 39 L. Ed. 2d 881 (1974). Plaintiff has not alleged that he has been discriminated against because of his race and therefore has not stated any claim for relief arising under section 1981.
As to section 1985, it is the law of this Circuit that section 1985 of title 42 does not permit relief against the actions of federal officers acting under color of federal law. Williams v. Halperin, 360 F. Supp. 554, 556 (S.D.N.Y.1973) (emphasis in original). See Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S. Ct. 803, 94 L. Ed. 1363 (1950); Boruski v. Stewart, 381 F. Supp. 529, 534 (S.D.N.Y.1974). See also Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir.), cert. denied, 404 U.S. 1061, 92 S. Ct. 747, 30 L. Ed. 2d 749 (1971). Thus, plaintiff has inappropriately alleged a claim for relief under section 1985 and I will not consider claims under this section.
Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972). In considering the dismissal of a pro se complaint, inartful pleadings are to be liberally construed. Id. See also Jackson v. Statler Foundation, 496 F.2d 623, 626 (2d Cir. 1974), cert. denied, 420 U.S. 927, 95 S. Ct. 1124, 43 L. Ed. 2d 397 (1975). Thus, I shall read plaintiff's complaint as alleging a Bivens cause of action. Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). The Court in Bivens held that monetary damages can be recovered for any injury suffered as a result of an illegal search and seizure by a federal agent. Thus, Bivens created federal actions against federal officials for alleged constitutional violations under the Fourth Amendment. Id. The Bivens rationale has been extended to encompass allegations of Fifth Amendment violations by federal agents which have been held to support an action for damages. United States ex rel. Moore v. Koelzer, 457 F.2d 892, 894 (3d Cir. 1972); Blassingame v. United States Attorney General, 387 F. Supp. 418 (S.D.N.Y.1974).
A liberal reading of plaintiff's complaint reveals that plaintiff would be wise to allege Fourth and Fifth Amendment violations. Specifically, I will treat this complaint as alleging Fourth Amendment illegal search and seizure and Fifth Amendment due process violations.The plaintiff alleges that defendants illegally entered and searched his property in Liberal, Kansas - a possible Fourth Amendment claim. The complaint also includes allegations that defendants conspired to fabricate false evidence, withheld evidence, and solicited and offered perjured testimony - allegations which, if proven, indicate Fifth Amendment due process violations. Thus, this court bases its jurisdiction on 28 U.S.C. § 1331(a) since all of plaintiff's claims involve matters arising under the Constitution of the United States.
Having established the ground for jurisdiction, I will now turn to the substantive issues of plaintiff's complaint.
A state prosecutor acting within the scope of his duties in initiating a prosecution and in presenting the state's case is absolutely immune from civil damages liability under § 1983. Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). This same immunity applies to federal prosecutors who are sued on actions founded directly on the Constitution. Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976). In Imbler, the Court did not extend its holding to confer absolute immunity upon a prosecutor's role as an administrator or investigative officer, Imbler v. Pachtman, 424 U.S. at 430-31, 96 S. Ct. 984, 47 L. Ed. 2d 128, noting that it would not consider a prosecutor's immunity relating to his investigative or administrative functions since the prosecutor's actions in Imbler were "intimately associated with the judicial phase of the criminal process." Id. at 430, 96 S. Ct. at 995.
Plaintiff has charged defendant Rakoff, the Assistant United States Attorney, with suborning perjury, withholding evidence, introducing illegally obtained evidence at trial, and participating in an illegal search and seizure of plaintiff's alleged property. All but the last charge are activities which are "intimately associated with the judicial phase" of the plaintiff's trial. Thus, under Imbler, defendant Rakoff is absolutely immune from civil damage liability for his activities which were within the scope of the initiation and presentation of the prior criminal suit and plaintiff has failed to state a claim upon which relief may be granted as to these ...