The opinion of the court was delivered by: STEWART
Plaintiff filed this civil action against several named and unnamed FBI agents and the United States seeking damages and declaratory relief for alleged violations of his rights under the First, Fourth, Fifth, Ninth, Thirteenth and Fourteenth Amendments to the Constitution, under 42 U.S.C. §§ 1983, 1985(3) and 1986 and under the common law of Alabama. Jurisdiction is founded upon 28 U.S.C. §§ 1331(a), 1343(3) and (4), and 1346(b). The defendants moved to dismiss the action arguing Inter alia that plaintiff failed to state a claim upon which relief can be granted, F.R.Civ.P. 12(b)(6). The Court assigned this case to United States Magistrate Sol Schreiber, who ordered discovery limited to the issues raised by the F.R.Civ.P. 12(b)(6) motion to dismiss. Thereafter, Magistrate Schreiber issued a Recommended Order ("Magistrate's Report") which is now before this Court. The defendants have also moved in this court to dismiss plaintiff's action on the ground that it is barred by the applicable statute of limitations.
Plaintiff, in his complaint, alleges that on May 14, 1961, he was assaulted by "vigilantes", some or all of whom were members of the Ku Klux Klan, while participating in a "Freedom Ride" to Birmingham, Alabama sponsored by the Congress for Racial Equality to challenge segregation in public facilities used in interstate travel (Complaint PP 3, 8, 14, 15). Plaintiff further alleges that several FBI agents, as the result of knowledge obtained by and through an informant, Gary Thomas Rowe, Jr. (and possibly through other informants) had prior knowledge of a conspiracy between the Birmingham Police Department and the vigilantes to allow the vigilantes fifteen minutes to attack physically the "Freedom Riders" upon their arrival in Birmingham (Complaint PP 9-11). Plaintiff alleges that these agents, having such prior knowledge, failed to inform anyone in the Justice Department (other than FBI personnel) or to inform state or local officials of either the conspiracy or the planned violence, and made no attempt to deter the conspirators, or to prevent or mitigate the violence (Complaint PP 12, 19, 20). The Birmingham police did not appear until "approximately fifteen minutes after the beating occurred" (Complaint P 16) and no members of the vigilante group were ever arrested (Complaint P 17).
I. THE MAGISTRATE'S RECOMMENDED ORDER
On the basis of the limited discovery allowed by Magistrate Schreiber, it was:
Recommended that an order be granted that plaintiff has stated a cause of action, grounded in common law tort, against the individual defendants and the United States. It is further recommended that plaintiff's claims based on the Civil Rights Act, 42 U.S.C. §§ 1983, 1985 and 1986, constitutional grounds and Respondeat superior, as well as those for declaratory relief and against (Clarence M. Kelley, Director of the FBI), be dismissed. (Magistrate's Report at 21-22.)
In a previous Order and Judgment this Court, pursuant to the Magistrate's Report and upon the consent of the parties, dismissed all the claims as to defendants Kelley and Webster (William H. Webster, Kelley's successor as Director of the FBI, was automatically substituted for Kelley under F.R.Civ.P. 25(d)(1) insofar as Kelley was sued in his official capacity) and dismissed all claims for declaratory relief.
A. Civil Rights Act Claims Against the Individual Defendants
Magistrate Schreiber recommended that the Civil Rights Act claims be dismissed because to state a cause of action under 42 U.S.C. §§ 1983, 1985(3) and 1986, a defendant must be acting under color of state law or acting jointly with state officials (Magistrate's Report at 8). The Magistrate found that since the individual defendants in this case were federal officials acting under color of federal, not state law, Id. at 8, and because plaintiff did not sufficiently allege joint action with state officials Id. at 7, plaintiff failed to state a claim upon which relief can be granted under §§ 1983, 1985(3) and 1986.
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.
Section 1983, by its own terms, applies to persons acting under color of State law. It does not generally extend to persons acting under color of federal law. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1346 (2d Cir. 1972). See also: Soldevila v. Secretary of Agriculture of the United States, 512 F.2d 427, 429 (1st Cir. 1975); Bethea v. Reid, 445 F.2d 1163, 1164 (3d Cir. 1971), Cert. denied, 404 U.S. 1061, 92 S. Ct. 747, 30 L. Ed. 2d 749 (1972); Norton v. McShane, 332 F.2d 855, 862 (5th Cir. 1964), Cert. denied, 380 U.S. 981, 85 S. Ct. 1345, 14 L. Ed. 2d 274 (1965); Smith v. United States Civil Service Commission, 520 F.2d 731, 733 (7th Cir. 1975); Williams v. Rogers, 449 F.2d 513, 517 (8th Cir. 1971), Cert. denied, 405 U.S. 926, 92 S. Ct. 976, 30 L. Ed. 2d 799 (1972). However, actions of federal officers may be the subject of a § 1983 suit if there is proof of a joint conspiracy with state officials, Kletschka v. Driver, 411 F.2d 436, 448 (2d Cir. 1969). Here it is claimed that the government was a joint participant in the conspiracy because defendants Jenkins, Kemp and defendants A through D had prior knowledge of the planned conduct of the vigilantes and the Birmingham police (Complaint PP 10, 11) but failed to report this to anyone in the Justice Department (other than FBI personnel) (Complaint P 12) or to state and local officials (Complaint P 19) and failed to deter the conspirators or take any other steps to prevent their actions (Complaint P 13). Plaintiff also claims that there was joint government participation in that Rowe participated in the conspiracy (Complaint P 23) and that the federal officers "approved the acts of Rowe and likewise participated in and furthered the aforesaid conspiracy" (Complaint P 24). Plaintiff contends that this is sufficient to sustain, on a motion to dismiss, a claim that the government was a joint conspirator for purposes of Kletschka. We disagree. The proper standard is that set out in Powell v. Workmen's Compensation Bd. of State of New York, 327 F.2d 131, 137 (2d Cir. 1964) and applied by Magistrate Schreiber:
(Plaintiff is) bound to do more than merely state vague and conclusionary allegations respecting the existence of a conspiracy. It was incumbent upon him to allege with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy. Hoffman v. Halden, supra, 268 F.2d (280) at 295. See Dunn v. Gazzola, 216 F.2d 709 (1 Cir. 1954); Ortega v. Ragen, 216 F.2d 561 (7 Cir. 1954), Cert. denied, 349 U.S. 940, 75 S. Ct. 786, 99 L. Ed. 1268 (1955); Yglesias v. Gulfstream Park Racing Ass'n, Inc., 201 F.2d 817 (5 Cir.), cert. denied, 345 U.S. 993, 73 S. Ct. 1132, 97 L. Ed. 1400 (1953); McGuire v. Todd, 198 F.2d 60 (5 Cir.), Cert. denied, 344 U.S. 835, 73 S. Ct. 44, 97 L. Ed. 650 (1952).
See Martin Hodas, East Coast Cinematics v. Lindsay, 431 F. Supp. 637, 643-44 (S.D.N.Y.1977). Plaintiff contends that several documents obtained during discovery "clearly establish the individual defendants' knowledge of the vigilante action." But knowledge by the FBI agents, even coupled with allegations of failure to take any action is insufficient to plead joint participation in a conspiracy. Plaintiff's reliance on Johnson v. Duffy, 588 F.2d 740 (9th Cir. 1978) is misplaced. Plaintiff refers us to the following language:
A person "subjects" another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made. (Sims v. Adams (5th Cir. 1976) 537 F.2d 829. Moreover, personal participation is not the only predicate for section 1983 liability. Anyone who "causes" any citizen to be subjected to a constitutional deprivation is also liable. The requisite casual connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury. (Cf. Beverly v. Morris (5th Cir. 1972) 470 F.2d 1356.)
Id. at 743. However, this defines the phrase "subjects, or causes to be subjected" in § 1983 and is applicable only if there is state action. It does not define the "joint conspiracy" requirement of Kletschka, which must be satisfied when plaintiff seeks to include federal officers under § 1983. Plaintiff concedes that as to his second basis for alleging conspiracy, "there is no record of the individual defendants sanctioning Rowe for his participation in that prior act; there is evidence that they rewarded him for his role in the conspiracy that led to Peck's injury. (Defendants' documents p. 37 record a bonus payment to Rowe.)" Plaintiff's Memorandum of Law at 20. This evidence, ambiguous as it is, is hardly sufficient to save plaintiff's vague and conclusionary allegations. Inasmuch as plaintiff has failed to sufficiently allege a joint conspiracy so as to state a cause of action against the individual federal defendants under 42 U.S.C. § 1983, that claim is dismissed.
Plaintiff has also asserted claims under 42 U.S.C. §§ 1985(3) and 1986. Section 1985(3) provides:
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the law . . . (then) if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; . . .
The law in this circuit until 1971 was that these sections did not permit relief against the actions of federal officers acting under color of federal law. In 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), plaintiff sued Francis Biddle, the U.S. Attorney General, and other federal officials to recover for his false arrest as an enemy alien. The Second Circuit, in an opinion written by Judge Learned Hand, held that plaintiff did not state a cause of action under the Civil Rights Acts. The court held that plaintiff failed to state a claim under Section 47(3) (42 U.S.C. § 1985(3)) because to construe the statutory language in the manner suggested by plaintiff so as to create "a claim against any two persons who conspire to injure another for spite or other improper motives," Id. at 581, would be to read the statutory language out of context, and that furthermore, "it is apparent that they (the words) could not have had such a scope without destroying their validity constitutionally." Id. Plaintiff was also held to have failed to state a cause of action under section 48 (42 U.S.C. § 1986) because "section 48 does not go beyond what is forbidden by § 47." It is not clear from the opinion whether the court objected to plaintiff's attempt to create a cause of action "against any two persons" including federal officers, or to plaintiff's attempt to have the statute construed as reaching any conspiracy to injure another for spite or improper motive, thereby interpreting § 1985(3) as a general tort law. Later cases have construed Gregoire as standing for the former proposition.
The continued vitality of Gregoire v. Biddle, supra as construed is in substantial doubt in light of the Supreme Court opinion in Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). In that case the court held, contrary to its previous holdings, that Section 1985(3) reached private conspiracies. The Court looked to the text of § 1985(3), its companion provisions and its legislative history. Looking first to the text, the Court stated that "(o)n their face, the words of the statute ("two or more persons') fully encompass the conduct of private persons." Moreover, the omission of any reference to "state action" in defining the constitutional deprivations covered, was:
(A)n important indication of congressional intent to speak in § 1985(3) of all deprivations of "equal protection of the laws" and "equal privileges and immunities under the laws," whatever their source.
Id. at 97, 91 S. Ct. at 1796. The Court stated that its general approach to the construction of the civil rights statutes was to " "accord (them) a sweep as broad as their language.' " Id. Finally, the Court relied on the construction it gave to similar language in the criminal counterparts of this statute, which the Court held extended to private action. The Court further found that to read § 1985(3) consistently with its companion provisions it would have to be read to reach private conspiracies. If a state action requirement were read into § 1985(3), that section would merely be duplicative of the other sections. Finally, the Court referred to legislative history which indicated that § 1985(3) was intended to reach private conspiracies.
The Supreme Court further found that as construed § 1985(3), contrary to dicta in previous holdings, was constitutional. The Court held that at least as applied in Griffin, § 1985(3) was based not on the Fourteenth Amendment, which requires state action, but rather on Section 2 of the Thirteenth Amendment:
We can only conclude that Congress was wholly within its powers under § 2 of the Thirteenth Amendment in creating a statutory cause of action for Negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at ...