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U.S. OF AMERICA EX REL. BRZOZOWSKI v. RANDALL

March 5, 1968

U.S. of America ex rel. John BRZOZOWSKI, Plaintiff,
v.
Charles RANDALL, Raymond McCaffrey, Thomas Lewis, Charles McIllwain, Captain, Ridley Township Police Dept., Defendants



The opinion of the court was delivered by: DAVIS

 Before the Court is a motion to dismiss under Federal Civil Rule 12(b), and a motion for a more definite statement in accordance with Rule 12(e), both filed on behalf of the defendants Charles Randall, Raymond McCaffrey and Charles McIllwain, all apparently members of the Ridley Township Police Department. In addition, a motion to dismiss, and alternatively for summary judgment under Rule 56, has been filed on behalf of the defendant Thomas Lewis, a special agent of the Federal Bureau of Investigation.

 BACKGROUND

 The plaintiff is presently serving a sentence of 2 1/2 to 5 years imprisonment, for armed robberies of a moving picture theatre, and a service station. On February 23, 1967, he instituted a complaint under the Civil Rights Acts, 42 U.S.C. § 1983 and § 1985, against the aforementioned defendants, alleging that he was kidnapped from New York and forced at gunpoint to return to Ridley Township to answer for the aforementioned crimes, of which he was subsequently convicted. In addition, he has alleged that the defendants committed an assault upon his person, and that they "conspired to deprive him of his civil rights." Included in the complaint is an allegation that the plaintiff was deprived both of counsel and of any access to his relatives from the time that he was apprehended in Brooklyn, until sometime after he signed a statement admitting the crimes as charged. In addition, the complaint alleges that "false advice" was given by the defendant Lewis, with regard to plaintiff's Constitutional rights, since he was a citizen of the Federal Republic of Germany.

 In his handwritten complaint and subsequent statements, the plaintiff has recited the incidents surrounding his apprehension, arrest and conviction as follows. On January 5, 1966, the plaintiff was attending a school for seamen, in Brooklyn, New York, in which he was duly enrolled. It is alleged that on this day, two men who identified themselves as Ridley Township Police officers apprehended the plaintiff in Brooklyn, after displaying an arrest warrant believed to have been issued on petition of the Ridley Township Police. He was then transported in an automobile to Ridley Township, via the New Jersey Turnpike. During the greater part of the journey, the plaintiff was restrained with handcuffs, "at the point of a gun", and was told that any attempt at escape would result in a "hole in the head". The plaintiff also alleges that he was "slapped around" by the detectives during the journey.

 After arriving at Ridley Township at 1:30 or 2:00 P.M., he was questioned for three or four hours; then after a "short break", the interrogation continued until 10:00 P.M. No counsel was furnished at any time during this first day, although counsel was demanded initially in Brooklyn, and subsequently during the interrogation in Ridley Township. He was told that an attorney and his family would be contacted after a statement prepared by the police was signed.

 During the same day, a "secret hearing" was conducted by a magistrate, allegedly in another township, although the plaintiff could not identify the precise location. The interrogation continued and on two separate occasions, the plaintiff was confronted with a man "covered with blood", and described as an example of "what happens to those who don't cooperate". The police continued questioning the plaintiff, and informed him that he "had no rights, and it [interrogation] could continue indefinitely". The plaintiff then signed the statement. Subsequent thereto, an attorney was contacted.

 The incident involving the F.B.I. agent arose when the plaintiff's parents called the F.B.I. office in Philadelphia on February 27, 1966, and requested an investigation of the circumstances surrounding the abduction of the plaintiff from Brooklyn. The following day, while interviewing the plaintiff in the Ridley Township jail, the defendant Lewis allegedly stated that "he [Lewis] was a personal friend of the [defendant] police officers, and didn't believe that they would do such things". Lewis then allegedly stated that since the plaintiff was a German citizen, he was only protected under the German Constitution and had no rights in this country.

 Subsequently, on March 3, 1966 the plaintiff received a two and one half to five year sentence for armed robbery. Two special agents of the F.B.I. later visited the plaintiff on May 5, 1966, at which time the plaintiff learned that the defendant Lewis has "falsified his report to his superiors, omitting a good deal of the information plaintiff has given him".

 On February 23, 1967, a complaint was filed in this Court, wherein the plaintiff seeks the following remedies:

 1. A court determination as to whether the attorney who represented him during the criminal proceedings should be named as a party defendant.

 2. $25,000 "necessary" and $25,000 punitive damages from each defendant.

 3. Removal of "this case" to this Court.

 With regard to the first "remedy", we have noted that appearance has been entered on behalf of the plaintiff by a member of the bar. The propriety of joining an additional party as defendant is more appropriately a matter for counsel to determine. Accordingly, this form of relief will be deleted from the complaint, upon the Court's own motion, in accordance with Federal Civil Rule 12(f).

 In No. 3, the desire that the "case" be removed to the District Court apparently refers to the criminal prosecution. Adherence to the requirement for first exhausting State remedies precludes this Court from considering this form of relief as well. 28 U.S.C. § 2254. This will also be deleted from the complaint under Rule 12(f). *fn1" Sole consideration will therefore be devoted to the sufficiency of the complaint in establishing a cause of action for which compensatory and punitive pecuniary damages may be awarded. (No. 2 in the plaintiff's prayer for relief).

 Jurisdiction properly lies under 28 U.S.C. § 1343, which essentially authorizes the district court to redress the deprivation of an individual's civil rights.

 In so deciding, the Court must consider as true and correct, all of the plaintiff's allegations of fact. 2A Moore's Federal Practice, P12.08: Henig v. Odorioso, 256 F. Supp. 276 (E.D.Pa., 1966) aff'd, 385 F.2d 491 (3rd Cir. 1967). In addition, all doubts which may arise in the allegations of fact contained in the pleadings, are to be resolved also in favor of the plaintiff. Supchak v. United States, 365 F.2d 844 (3rd ...


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