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January 29, 1993

DHORUBA BIN WAHAD formerly known as Richard Dhoruba Moore, Plaintiff,

The opinion of the court was delivered by: MARY JOHNSON LOWE



 Before the Court are objections to two Reports and Recommendations from a Magistrate Judge, pursuant to Fed. R. Civ. P. 72, by Plaintiff Dhoruba Bin Wahad ("Plaintiff") and by Defendants. Plaintiff moved for sanctions and attorneys' fees and expenses pursuant to Fed. R. Civ. P. 37(b). Defendants Federal Bureau of Investigation ("FBI"), Attorney General of the United States, Director of the FBI, and "Richard Roe", representative of unnamed federal defendants, moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(1) or summary judgment pursuant to Fed. R. Civ. P. 56. These motions were referred to Magistrate Judge Nina Gershon on April 22, 1988. The Magistrate Judge filed a Report and Recommendation on October 11, 1991 (the "October R & R") in which she advises that Plaintiff's motions be granted and that Defendants' motion be denied. Defendants have filed objections to the R & R pursuant to Fed. R. Civ. P. 72. For the reasons set forth below, this Court adopts the October R & R with modification as to the appropriate sanction.

 Also, in a Report and Recommendation filed April 15, 1992 (the "April R & R"), Magistrate Judge Gershon addressed the motions of defendants James Lott and John Higgins, former FBI agents, to dismiss pursuant to Fed. R. Civ. P. 12 or for summary judgment pursuant to Fed. R. Civ. P. 56. In the R & R, the Magistrate Judge recommends that Defendant Lott's motion for summary judgment be granted to the extent of dismissing all common law tort and 42 U.S.C. § 1983 claims, and denied in all other respects. The Magistrate Judge recommends that Defendant Higgins' motion for summary judgment based on lack of personal jurisdiction should be granted. The parties have filed cross-objections to the R & R. For the reasons set forth below, this Court adopts in part the April R & R.


 The background of this case has been stated in prior opinions of this Court, and it will now be repeated only in summary. This action was filed on December 10, 1975. Plaintiff's complaint alleged illegal surveillance and initiation of false criminal charges by past and present federal and local officials, both named and unnamed. Plaintiff claims that these actions, directed against him and the Black Panther Party, violated his constitutional rights and rights granted to him under federal statutes. Plaintiff amended his complaint on September 10, 1976, alleging that he was the target of the FBI counter-intelligence COINTELPRO program, and subjected to illegal electronic and physical surveillance by the FBI.

 Plaintiff is a former leader of the New York chapter of the Black Panther Party. He was a member of the chapter from 1968 to 1971. In 1973, he was convicted in New York State for the 1971 attempted murder of two New York City police officers, and sentenced to 25 years in prison. In 1990, after serving 19 years in prison, he was released from custody.

 Here, Plaintiff claims that the alleged acts of Defendants were committed, even during the time of his incarceration, in an effort to neutralize him as a political spokesperson. Plaintiff seeks declaratory and injunctive relief, as well as monetary damages, for the harm alleged to have been done. Specifically, Plaintiff seeks to enjoin Defendants from illegally opening his mail and monitoring his conversations. He also seeks to prevent Defendants from using and disseminating materials gathered through illegal mail covers, burglaries, and electronic surveillance. Finally, he seeks the return of materials alleged to have been illegally obtained from his possession.


 I. Report and Recommendation of October 11, 1991.

 A. Sanctions.

 Plaintiff seeks sanctions against the FBI pursuant to Fed. R. Civ. P. 37 for failure to comply with the discovery orders issued by the Court. The issue before the Court is whether these orders have been violated, and, if so, whether sanctions are appropriate.

 Defendants failed to comply with this Court's order. On November 14, 1990, Plaintiff moved for issue-determinative sanctions pursuant to Fed. R. Civ. P. 37(b). FBI Director William Sessions filed an affidavit in opposition to this motion on December 13, 1990. This affidavit contained suggested alternatives to the disclosure of the informant's name, such as an in-camera deposition, written interrogatories, or a deposition by telephone. These alternatives were not suggested until after the orders of the Magistrate Judge and the District Court were issued, and not until after Plaintiff moved for sanctions. The suggestion of alternatives does not change non-compliance with court orders regarding discovery.

 Issue-related sanctions, granted pursuant to Fed. R. Civ. P. 37(b), are a remedy for failure to comply with an order to permit discovery. The purpose of sanctions is to improve the ability of the party refused discovery to prosecute the action without the information requested, and to improve that party's ability to identify damages suffered. See In re Attorney General, 596 F.2d 58, 67 (2d Cir.), cert. denied, 444 U.S. 903, 100 S. Ct. 217, 62 L. Ed. 2d 141 (1979). This Court stated in the August 20, 1990 Order that Plaintiff may be able to support his claim of an ongoing pattern of misconduct once the identity of the informant is revealed. August 20, 1990 Order at 20. An appropriate sanction in this case will enable Plaintiff to proceed with his action without the information sought by discovery.

 Parties must not be permitted to better their position because they have failed to comply with discovery orders. Sanctions ensure that this does not occur. While sanctions are severe measures, they are appropriate particularly in cases such as this where it is the government that disobeys court orders; the government is charged with the enforcement of law and should set examples for others to follow. National Lawyers Guild v. Attorney General, 94 F.R.D. 600, 615 (S.D.N.Y. 1982) (citing Perry v. Golub, 74 F.R.D. 360, 366 (N.D.Ala. 1976), and United States v. Sumitomo Marine & Fire Ins. Co., 617 F.2d 1365, 1370 (9th Cir. 1980)). "The parties . . . must be prepared to adhere to the orders of the court whose assistance they seek, whether or not they agree with those orders." National Lawyers Guild, 94 F.R.D. at 616.

 The Court considers two factors which limit its discretion in imposing sanctions. The United States Supreme Court, in Insurance Corp. v. Compagnie Des Bauxites, 456 U.S. 694, 72 L. Ed. 2d 492, 102 S. Ct. 2099 (1982), delineated these factors. Sanctions "must be 'just,'" and "must be specifically related to the particular 'claim' which was at issue in the order to provide discovery." Id. at 707. The imposition of sanctions in this case would be "just" because Defendants willfully failed to comply with two orders - one by the Magistrate Judge and one by this Court. Sanctions would need to be fashioned so that they relate to the Plaintiff's "claim" that the FBI requested an informant to provide them with the address book.

 In 1984, Plaintiff's address book was taken from his cell without his knowledge or consent by an informant acting at the request of the FBI.

 This sanction is not a finding of unlawfulness by the FBI or other federal Defendants, nor is it reflective of a direct investigation of the Plaintiff. Any inferences of misconduct can be rebutted by Defendants. The recommendation of the Magistrate Judge that ...

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