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PLATSKY v. STUDEMAN

August 16, 1993

HENRY PLATSKY, Plaintiff,
v.
WILLIAM STUDEMAN, Director, and GERALD YOUNG, Deputy Director, NATIONAL SECURITY AGENCY, Fort Meade, Maryland; ROBERT GATES, Director, CENTRAL INTELLIGENCE AGENCY, McLean, Virginia; WILLIAM SESSIONS, Director, and JOHN HICKS, Assistant Director in charge of Intelligence, FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; and LT. GENERAL JAMES CLAPPER, JR., Director, DEFENSE INTELLIGENCE AGENCY, UNITED STATES DEPARTMENT OF DEFENSE, Washington, D.C., Defendants.



The opinion of the court was delivered by: I. LEO GLASSER

 GLASSER, United States District Judge:

 FACTS

 Plaintiff pro se Henry Platsky originally filed the complaints in the above-captioned consolidated action against various federal agencies which, he alleged, engaged in conduct that interfered with his freedom of association in violation of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). Platsky sought both damages and equitable relief, the latter pursuant to the Administrative Procedure Act, 5 U.S.C. ยงยง 701 et seq. By Memorandum and Order dated February 26, 1991, this court granted the defendant agencies' motions to dismiss on the grounds of lack of standing, failure to state a claim, and lack of subject matter jurisdiction.

 On appeal, the Second Circuit found that this court erred in failing to allow plaintiff to replead his claims. More precisely, the court of appeals agreed that Platsky incorrectly named as defendants government agencies immune from civil liability under Bivens, but admonished this court for failing "to explain the correct form to the pro se plaintiff so that Platsky could have amended his pleadings" to name individuals rather than agencies as the defendants. 953 F.2d 26, 28 (2d Cir. 1991). With respect to this court's finding that plaintiff had failed to set forth sufficiently particular facts, the Second Circuit stated as follows:

 
The complaints contain somewhat generalized allegations that the defendants deprived Platsky of his right to associate with political organizations of his choice, and caused him to suffer "harassment in application for government services, on jobs, and in everyday life." However inartfully pleaded, these allegations suggest that the plaintiff had specific instances of injury in mind. When we questioned Platsky at oral argument, he recounted definite acts by which the defendants allegedly caused him harm. According to Platsky, on one occasion the defendants' agents approached his landlord and attempted to have him evicted from his home. Plaintiff also stated that the defendants specifically interfered with his admission to a particular political organization. If they were pleaded correctly, these allegations might state a legally cognizable claim.

 Id. at 28-29. After instructing plaintiff that "his complaint must set out, with particularity and specificity, the actual harms he suffered as a result of the defendants' clearly defined acts," the appeals court remanded the case to this court "with instructions to allow the plaintiff to replead." Id.

 Plaintiff filed an amended complaint on July 20, 1992 which names as defendants directors and subdirectors of the various agencies rather than the agencies themselves and sets forth in detail the conduct about which he complains. The following paragraph from that complaint, numbered 11(f), is exemplary of plaintiff's specific charges:

 
In 1978 plaintiff became involved with the cultural-artistic movement which became known to the world as "punk-rock" and was damaged by the disruptive activities of the agencies headed by the defendants in so doing. Shortly after becoming involved with this loose, counter-cultural movement, plaintiff placed ads in a local Chicago paper soliciting musicians to aid in forming a musical band. Plaintiff specifically described the band he intended to form as "political" and drew comparisons specifically to a band named The Clash, a band associated with Left politics rapidly becoming popular in Great Britain. Plaintiff was approached by a man named Ted Osuch who expressed interest in helping to form such a band. Mr. Osuch introduced plaintiff to a woman named Jill Pryzbocki who began to work with plaintiff in forming such a band. Later, after having brought Ms. Pryzbocki together with plaintiff, Mr. Osuch revealed to plaintiff that he was an informant for the Federal Bureau of Investigation. Ms. Pryzbocki introduced plaintiff to another friend, whose name plaintiff cannot remember, who later informed plaintiff of his association with the Central Intelligence Agency. Plaintiff charges that Ms. Pryzbocki worked alongside him in forming a band under the direction of operatives of these two agencies. A woman known to plaintiff as Missy also worked in cooperation with these agencies. Plaintiff further charges that the punk-rock movement in general suffered from the sort of disruptive activities proven to have been instigated by the agencies headed by the defendants within similar movements in the 1960's. In 1984, in NYC, plaintiff attended a meeting of "hard-core" punk-rockers who gathered to organize within the movement against United States policies in El Salvador, a young African-american woman told the entire gathering that she had been coerced into joining naval intelligence and was sent to this gathering, reluctantly, on their behalf in order to infiltrate the movement. Plaintiff believes that literally dozens of such agents of the defense intelligence agencies were secreted into the punk-rock scene, under the direction of the heads of Defense Intelligence, in order to disrupt and manipulate this movement. Plaintiff demands relief for these damages suffered.

 (Complaint P 11(f)). In accordance with the Second Circuit's directive, plaintiff employs identical specificity in alleging other harms caused by defendants. What is clear from these specific allegations -- and what became even clearer at oral argument on the government's motion to dismiss -- is that plaintiff's original claims against agencies of the United States did not contain a mere error in pleading; rather, his claims were and are in fact leveled against federal agencies and officers in their official capacities. The following excerpt from the transcript of oral argument is instructive:

 
THE COURT: Mr. Platsky, may I interrupt for a minute. I read your papers. They're very interesting, and you tell me you're relying upon them.
 
But so I can be clear in my own mind as to what your claim is, would you be good enough to tell me exactly what William Sessions, the director of the F.B.I., did to you?
 
MR. PLATSKY: What he did to me is that he directed -- he is responsible for the activities of the F.B.I., and this organization has maintained illegal surveillance, illegal files, illegal activities, and the activities are activities of informants and agents who come into organizations and don't simply engage in surveillance and counter intelligence, but actually manipulate these organizations. They move to actually control these organizations and --
 
THE COURT: You didn't point to anything that I recall seeing, and I just want to make sure I didn't miss something, Mr. Platsky, where you accuse Mr. Sessions as an individual of having done anything to you.
 
MR. PLATSKY: My understanding is he's the responsible Director of the Federal Bureau of Investigation, and any transgressions that directly harm me has to be held accountable in the Courts.
 
THE COURT: If I asked you the same question regarding John Hicks, who you described as the Assistant Director in charge of Intelligence for the ...

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