Joseph X. Bethea v. Joseph J. Reid, Agent, Federal Bureau of Investigation, Newark, New Jersey, Etal., 445 F.2d 1163, 3rd Cir. (1971)

445 F.
2d 1163
Joseph X. BETHEA, Appellant,

v.
Joseph J. REID, Agent, Federal Bureau of Investigation,
Newark, New Jersey, etal., Appellees.
No. 19323.
United States Court of Appeals, Third Circuit.

Submitted on Briefs March 17, 1971.
Decided July 27, 1971.
Joseph X. Bethea, pro se.

Marc L. Dembling, Asst. U.S. Atty., Newark, N.J. (Frederick B. Lacey,
U.S. Atty., Newark, N.J., on the brief), for appellees.
Before ADAMS and GIBBONS, Circuit Judges, and WHIPPLE, District
judge.
OPINION OF THE COURT
GIBBONS, Circuit Judge.
This is an appeal from an order dismissing the plaintiff's complaint, which

seeks damages for violations of fourth and fifth amendment rights allegedly
committed by federal officials.
In 1968 appellant was convicted on three counts of bank robbery under 18

U.S.C. 2113(a), (b) and (d) (1964). On March 4, 1970, he filed the complaint in
this action charging that three agents of the Federal Bureau of Investigation and
an Assistant United States Attorney had conspired to violate his civil and
constitutional rights by using perjured testimony to obtain his conviction and by
seizing certain property in violation of the fourth amendment. On August 4,
1970, the district court granted a motion by the defendants, the F.B.I. agents
and the Assistant United States Attorney, dismissing the complaint. The district
court set forth four grounds for its action, which we will discuss separately.
First, it rejected the plaintiff's contention that 42 U.S.C. 1983 and 1985 (1964)
give him a cause of action for damages in the circumstances alleged. These
were federal officers acting under color of federal law, and that ruling was
correct. See, e.g., Jobson v. Henne, 355 F.2d 129 (2nd Cir. 1966); Norton v.
McShane, 332 F.2d 855 (5th Cir. 1964), cert. denied, 380 U.S. 981, 85 S.Ct.
1345, 14 L.Ed.2d 274 (1965).
Next, the district court held that the fourth and fifth amendments do not
themselves provide any basis for the award of damages as a matter of federal
law. In reaching this conclusion chief reliance was placed upon the opinion of
Judge Lombard in the Second Circuit. Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 409 F.2d 718 (2nd Cir. 1969). The Bivens
case was reversed by the Supreme Court on June 21, 1971. It is now clear that a
damage action lies for violations by federal officers of rights guaranteed by the
fourth amendment.
'Having concluded that petitioner's complaint states a cause of action under the
Fourth Amendment, supra, pp. 2001-2004, we hold that petitioner is entitled to
recover money damages for any injuries he has suffered as a result of the
agents' violation of the Amendment.'
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (U.S. June 21, 1971).
Next, the district court held that even if a damage action could be implied from
the fourth and fifth amendments, plaintiff's complaint should be dismissed
because it is broad and conclusory, and fails to state adequate factual
allegations in support of its conclusions. We believe that this pro se complaint,
inartistic as are most such pro se pleadings, nevertheless does make factual
allegations sufficient to withstand a motion to dismiss. It alleges the
approximate time, place and manner of the unlawful searches, and it identifies
the parties and the approximate time of the alleged conspiracy to induce
perjury. Thus the complaint does set forth 'a short and plain statement of the
claim showing that the pleader is entitled to relief' within the requirements of
Rule 8(a)(2), Fed.R.Civ.P., and the defendants should have no trouble forming
a responsive pleading. 1 Cf. Gaito v. Ellenbogen, 425 F.2d 845 (3rd Cir. 1970).
Finally, the district court held that the complaint against the Assistant United
States Attorney must be dismissed because as such he is immune from suit.
This holding was not applied to the Agents of the Federal Bureau of
Investigation. The court did not specify whether that immunity arose because
the Assistant United States Attorney was a federal employee acting within the
perimeter of his official duties, or because he is a judicial officer. The
application of immunity of federal employees from suits for damages arising
out of violations of the fourth amendment was expressly reserved by the Court
in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
supra, 403 U.S. 388, 91 S.Ct. 1999. In his concurring opinion Justice Harlan
wrote:
9
'And the countervailing interests in efficient law enforcement of course argue

for a protective zone with respect to many types of Fourth Amendment
violations. Cf. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434
(1959) (opinion of Harlan, J.). But, while I express no view on the immunity
defense offered in the instant case, I deem it proper to venture the thought that
at the very least such a remedy would be available for the most flagrant and
patently unjustified sorts of police conduct.' 403 U.S. at 411, 91 S.Ct. at 2012.
10
This dictum does not, of course, apply to judicial immunity, since in Bivens the
Court was dealing only with enforcement agents and not with an assistant
prosecutor. There is authority supporting the immunity of United States
Attorneys. Norton v. McShane, supra; United States v. Faneca, 332 F.2d 872
(5th Cir. 1964); Yaselli v. Goff, 12 F.2d 396 (2nd Cir. 1926), aff'd per curiam,
275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395 (1927). In Barr v. Matteo, 360 U.S.
564, 569, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), the Supreme Court expressly
approved Yaselli v. Goff, supra, pointing out that the duties of the defendant, a
Special Assistant to the Attorney General, were related to the judicial process.
This circuit held, in Bauers v. Heisel, 361 F.2d 581 (3rd Cir. 1965), that a State
prosecuting attorney was immune from suit under the Civil Rights Act, 42
U.S.C. 1983 (1964). Writing for the Court en banc Judge Staley said:
11
'In deciding the question of whether a prosecuting attorney is liable for acts
done in his official capacity, we must decide whether his duties are sufficiently
judicial to cloak him with the same immunity afforded judges or are so closely
related to those duties of law enforcement officials as to amerce him with
potential civil liability for his imprudent actions. * * * Analogy could support
either conclusion, but we believe that both reason and precedent require that a
prosecuting attorney should be granted the same immunity as is afforded
members of the judiciary. The reasons are clear: his primary responsibility is
essentially judicial-- the prosecution of the guilty and the protection of the
innocent, Griffin v. United States, 295 F. 437, 439-440 (C.A.3, 1924); his
office is vested with a vast quantum of discretion which is necessary for the
vindication of the public interest. In this respect, it is imperative that he enjoy
the same freedom and independence of action as that which is accorded
members of the bench.' 361 F.2d at 589-590.

12
Bauers v. Heisel would seem to compel the result that an Assistant United
States Attorney is clothed with judicial immunity, unless there is some reason
to distinguish between the liability of State prosecutors under the Civil Rights
Act and the liability of federal prosecutors under the federal common law
created by the Bivens decision. We perceive no reason for such a distinction.
Thus the district court correctly dismissed the complaint against the Assistant
United States Attorney on the ground of immunity from suit.
13
We express no opinion at this time as to whether the duties of the remaining

defendants are such as to require that they too be granted either judicial or
executive immunity. That decision should await a fuller development of the
facts.
14
The district court did not address itself to the sufficiency of the claim of
jurisdictional amount. Plaintiff alleges total unlawful seizures in the amount of
$4,200, but claims that the amount in controversy exceeds $10,000. It cannot
be concluded from the face of the complaint that the allegation of jurisdictional
amount is insufficient, but further proceedings may develop that the
jurisdictional amount specified in 28 U.S.C. 1331(a) (1964) is lacking. See
Hague v. C.I.O., 307 U.S. 496, 508, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Nor
do we express any opinion at this time as to whether the defendants would be
entitled to the benefit of collateral estoppel with respect to issues which were or
might have been litigated in the criminal case in which the plaintiff was
convicted. Here, too, a fuller record is required.
15
The order of the district court will be affirmed insofar as it dismissed the
complaint against the defendant, Koelzer, Assistant United States Attorney, and
reversed and remanded for further proceedings not inconsistent with this
opinion as to the remaining defendants.
No answer was filed. The United States Attorney moved on behalf of the
defendants to dismiss the complaint and in the alternative for summary
judgment. The district court noted that affidavits by the defendants undermined
the allegations of the complaint, but did not enter summary judgment for the
defendants under Rule 56, Fed.R.Civ.P. We express no opinion as to the
appropriateness of a summary disposition

Joseph X. Bethea v. Joseph J. Reid, Agent, Federal Bureau of Investigation, Newark, New Jersey, Etal., 445 F.2d 1163, 3rd Cir. (1971)

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445 F.

Joseph X. BETHEA, Appellant,

United States Court of Appeals, Third Circuit.

Joseph X. Bethea, pro se.

This is an appeal from an order dismissing the plaintiff's complaint, which

In 1968 appellant was convicted on three counts of bank robbery under 18

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403

'And the countervailing interests in efficient law enforcement of course argue

members of the bench.' 361 F.2d at 589-590.

We express no opinion at this time as to whether the duties of the remaining

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