by the agency and his superiors. Further, he argues that the actions of employees of a single entity, here the FBI, should not be considered to constitute a civil conspiracy. In the April R & R, Magistrate Judge Gershon recommended that these arguments be rejected and that Defendant Lott's motion for summary judgment on this issue be denied.
Damages may be recovered against persons who act in furtherance of a conspiracy to interfere with civil rights. Such a conspiracy is statutorily defined as consisting of "two or more persons" who "conspire . . . 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 laws." 42 U.S.C. § 1985(3). The conspiracy is actionable "if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy," and if another is injured or deprived of "any right or privilege of a citizen of the United States." Id. Damages are recoverable "against any one or more of the conspirators." Id.
To recover on a § 1985(3) claim, plaintiff has the burden of proving that defendant: (1) engaged in a conspiracy; (2) acted for the purpose of depriving one of equal protection or equal privileges and immunities; (3) acted in furtherance of the conspiracy; and (4) deprived the person of the exercise of any right or privilege of a citizen of the United States. See Griffin v. Breckenridge, 403 U.S. 88, 102-03, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971); New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1358 (2d Cir. 1989), cert. denied, 495 U.S. 947, 109 L. Ed. 2d 532, 110 S. Ct. 2206 (1990). Further, "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin, 403 U.S. at 102.
The Magistrate Judge found that Plaintiff presented sufficient evidence from which a jury could infer that Lott engaged in a conspiracy with other FBI agents to violate Plaintiff's constitutional rights. She further found sufficient evidence of Lott's purpose and intent, and of activities designed to "neutralize" the Black Panther Party and Plaintiff. The Magistrate Judge finally found that sufficient evidence was presented by Plaintiff to support a finding of class-based animus by Lott, and that this element was an issue of fact to be determined at trial.
Defendant argues that, as a matter of law, he cannot be liable for conspiring with other FBI agents because the FBI is a single entity involved in a single activity, and that he followed orders given from within that entity. This theory was enunciated in Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972), where the court reasoned that the requirement of "two or more persons" in 42 U.S.C. 1985(3) is not satisfied where the challenged conduct is a single act reflective of a decision by "executives of the same firm," even if two or more persons engaged in that conduct.
This rule has been applied in this circuit to various corporate/business entities. The primary case in the Second Circuit is Girard v. 94th St. and Fifth Ave. Corp., 530 F.2d 66, 70-71 (2d Cir.), cert. denied, 425 U.S. 974, 96 S. Ct. 2173, 48 L. Ed. 2d 798 (1976), which held that § 1985(3) does not apply to the implementation of a single policy by a single policy making body. That case involved a cooperative apartment corporation and its directors. This rule allows actors within a business entity to escape liability under § 1985(3).
The defense that a single corporation and its employees cannot conspire under § 1985 is not always accepted where continuing, separate instances of discrimination are alleged. In Yeadon v. New York City Transit Auth., 719 F. Supp. 204 (S.D.N.Y. 1989), plaintiffs alleged wrongful arrest by transit authority police officers pursuant to a conspiracy between the officers, their supervisors, and the transit authority. The court held that plaintiffs "adequately alleged a series of separate discriminatory acts by the corporate entity and its agents." Id. at 212. See also Rackin v. University of Pennsylvania, 386 F. Supp. 992 (E.D.Pa. 1974) (complaint alleged repeated, continuous discriminatory episodes); Stathos v. Bowden, 728 F.2d 15 (1st Cir. 1984) (same). In the instant case, Plaintiff adequately alleges distinct and individual acts of discrimination.
Further, the "single corporate entity" rule does not apply to federal agencies as it does to business entities. If federal agencies were viewed as business entities, § 1985(3) would be ineffective to deal with potential conspiracies within the government. § 1985(3) is broad in its language, and relates to conspiracies by "any person." Moriani v. Hunter, 462 F. Supp. 353, 356 (S.D.N.Y. 1978) (includes emphasis).
The Court, like Magistrate Judge Gershon before it, declines to apply the rule in Girard to federal agents and agencies. A federal agent is a "person" capable of conspiring to violate civil rights notwithstanding that he or she is an actor within an agency. See Peck v. United States, 470 F. Supp. 1003, 1008-12 (S.D.N.Y. 1979) (conspiracy statute applies to federal officers); Moriani, 462 F. Supp. at 356 (same); Hobson v. Wilson, 237 U.S. App. D.C. 219, 737 F.2d 1, 19-20, 55 (D.C. Cir. 1984), cert. denied, 470 U.S. 1084, 105 S. Ct. 1843, 85 L. Ed. 2d 142 (1985) (same). The scope of § 1985(3) shall not be narrowed by allowing federal agents to escape liability under it. Agents are not as a matter of law incapable of conspiring under § 1985(3). Defendant's motion for summary judgment on this issue of a conspiracy between himself and other federal agents is denied.
The Magistrate Judge found no evidence of a § 1985(3) conspiracy between Defendant Lott and FBI informants and the media. Plaintiff has not objected to these findings by the Magistrate Judge. The R & R on this issue is adopted by this Court pursuant to Fed. R. Civ. P. 72. Summary judgment is granted in favor of Defendant Lott on the issue of a conspiracy between himself and FBI informants, and between himself and the media.
b. 42 U.S.C. § 1986.
If Defendant Lott was able to prevent the commission of a § 1985(3) conspiracy between himself and other FBI agents and failed to do so, he will face liability under § 1986. One who knows of and has the ability to aid in preventing a § 1985 conspiracy has a duty to do so. If that person declines to take steps preventing that conspiracy he or she shall be liable to the injured party for damages which could have been prevented. 42 U.S.C. § 1986.
Defendant contends that he was not a member of a conspiracy, and had no power to prevent one. Just as the existence of a conspiracy within the FBI between Lott and other agents is a finding of fact to be made at trial, the issue of whether Defendant participated in or could have prevented such a conspiracy, if one is found to exist, will be left for trial. The Magistrate Judge's R & R as to this issue is adopted, and Defendant's motion for summary judgment on this issue is denied.
c. Claims of Conspiracy Between Lott and Members of the NYCPD.
Finally, Defendant Lott seeks summary judgment on the issue of his alleged conspiring with members of the NYCPD in violation of 42 U.S.C. §§ 1983 and 1985(3). In the R & R, Magistrate Judge Gershon recommended that this part of Defendant's motion be granted because she found no sufficient evidence of a conspiracy between Lott and members of the NYCPD. This Court, however, does find evidence sufficient to create an inference of such a conspiracy, and will allow Plaintiff to proceed to trial on this issue.
There exists a genuine issue of material fact for resolution at trial. Plaintiff has provided evidence which allows the inference that agents of the FBI and members of the NYCPD acted in conjunction in carrying out activities, such as the FBI's "interview and arrest" program, in an effort to disrupt the Black Panther Party and Plaintiff in their exercise of lawful, constitutional activity. In correspondence dated April 15, 1969, to the Director of the FBI, the Special Agent in Charge of the New York Office of the FBI states that "arrests of BPP [Black Panther Party] members have been made by Bureau Agents and the NYCPD. These interviews and arrests have helped to disrupt and cripple the activities of the BPP in the [New York City] area." Plaintiff's Appendix in Opposition to Defendants' Lott and Higgins Motion to Dismiss and/or for Summary Judgment, p. 60. Further, stolen information from a Black Panther leader was given to the FBI by someone from the NYCPD, and this information was investigated by agents including Defendant Lott. Plaintiff's Appendix, pp. 21-23. While this evidence is not dispositive of the issue of whether a conspiracy existed between agents of the FBI, including Lott, and members of the NYCPD, it does support an inference of mutual activity between the groups. "Mutually supportive activity by parties in contact with one another over a long period suggests a common plan." Halberstam v. Welch, 227 U.S. App. D.C. 167, 705 F.2d 472, 481 (D.C. Cir. 1983).
A jury de termination of whether there is a conspiracy between Lott and members of the NYCPD is warranted. Plaintiff must prove a single agreement - the nature and scope of which was known to each conspirator sought to be held liable - to achieve certain unconstitutional or illegal objectives; however, each alleged conspirator need not know the identity of other conspirators or expressly agree with them. See Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979), rev'd in part on other grounds, 446 U.S. 754, 100 S. Ct. 1987, 64 L. Ed. 2d 670 (1980). "There is a possibility that the jury can 'infer from the circumstances [that the alleged conspirators] had a meeting of the minds and thus reached an understanding' to achieve the" requisite objectives of a conspiracy. Id. at 621 (citing Adickes, 398 U.S. at 158-59). While the Court leaves open the issue of whether Defendant conspired to violate Plaintiff's constitutional rights, the available evidence supports an inference that the NYCPD engaged in activity complementary to the efforts of the FBI, and that the activity went beyond the mere exchange of intelligence information. Cf. Hobson, 737 F.2d at 53. There is a triable issue of fact, and summary judgment as to this issue is denied.
Defendant has moved for summary judgment and has the burden of proving the lack of a dispute of material fact. EEOC v. Home Ins. Co., 672 F.2d 252, 256 (2d Cir. 1982) (citing American Int'l Group, Inc. v. London Am. Int'l Corp., 664 F.2d 348, 350 (2d Cir. 1981)). Defendant responded to Plaintiff's pleadings, and Plaintiff countered with allegations of specific acts by Defendant Lott and the FBI which infer the existence of a conspiracy. Defendant Lott has not foreclosed the possibility of a conspiracy. Defendant has "failed to show conclusively that a fact alleged by [Plaintiff] was 'not susceptible' of an interpretation that might give rise to an inference of conspiracy." Adickes v. S. H. Kress & Co., 398 U.S. 144, 160, 26 L. Ed. 2d 142, 90 S. Ct. 1598 n. 22 (1970) (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). All doubts are resolved against the moving party, and all favorable inferences in favor of the party against whom summary judgment is sought. Adickes, 398 U.S. at 158-59. Defendant has not shown that summary judgment in his favor is warranted.
4. Common Law Tort Claims.
Magistrate Judge Gershon determined that Defendant Lott acted within the scope of his employment, and that the remedy for certain of his alleged tortious activities lies exclusively in the Federal Tort Claims Act. 28 U.S.C. § 2679(b)(1). The Magistrate Judge recommends that this Court find Defendant Lott, a federal official, absolutely immune to state common law tort claims. Plaintiff has not objected to this recommendation, and the R & R is adopted by the Court pursuant to Fed. R. Civ. P. 72 as to this issue.
B. John Higgins.
Magistrate Judge Gershon recommends that the complaint against Defendant Higgins be dismissed for lack of personal jurisdiction. The Magistrate Judge found that Plaintiff failed to allege sufficient ties between Higgins and New York to subject him to the jurisdiction of this Court. Plaintiff has not objected to this recommendation, and the R & R is adopted by the Court pursuant to Fed. R. Civ. P. 72 as to this issue.
For the reasons stated above, the Report and Recommendation of October 11, 1991 is adopted in part and modified in part. Plaintiff's motions for sanctions and attorneys' fees are granted in part with modification. The motion of defendants Federal Bureau of Investigation, Attorney General of the United States, Director of the FBI, and "Richard Roe", representative of unnamed federal defendants, for summary judgment is denied.
Also for the reasons stated above, the Report and Recommendation of April 15, 1992 is adopted in part and declined in part. Defendant Lott's motion for summary judgment is granted to the extent of dismissing all common law tort claims, and otherwise denied. Defendant Higgins' motion for summary judgment is granted.
It is SO ORDERED.
Dated: New York, New York
January 29, 1993
Mary Johnson Lowe
United States District Judge