by the Supreme Court, Burton has filed a complaint with this Court in an attempt to relitigate his claims against the Post Office Department. Burton has also joined as defendants all persons who refused to grant him the relief he desires or who defended the action on behalf of the United States.
The first six of the twenty-two numbered paragraphs of the complaint do not deal with contentions of Burton which are pertinent to the instant case. Instead, Burton refers to William Clyde Burton v. Nathan L. Egnal, C.A.:70-946, a previously filed action pending before this Court involving unrelated issues.
As part of his complaint in this action (at p. 2) Burton "insists that the District Court not assign Judge C. William Kraft, Jr." in Burton v. Egnal averring, inter alia, that defendant in that action has no standing in the District Court to defend the action. Clearly, allegations of this nature have no place in Burton's present complaint and further confuse the issues presented therein.
Paragraphs 7 through 13 of the complaint deal with the decision of the Court of Claims. Burton avers that the action filed in the Court of Claims " has never been decided under the provisions of (28 U.S.C. § 1491)"
and the official report found at 186 Ct. Cl. 172, 404 F.2d 365 is a "sham-report" which is not authorized under that section. Burton concludes, then, that a determination by the Court of Claims is still pending as the "sham-report" has no effect. Moreover, the "sham-report" filed by the Court of Claims is said to contain "irrefutable and permanently documented proof . . . that the above named defendants from the Court of Claims conspired with the United States and 'rigged' its dismissal of plaintiff's petition . . ., which act is contrary to plaintiff's equal rights under the law."
Paragraphs 14 through 17 of the complaint contain allegations that defendants from the Post Office Department violated departmental regulations by removing Burton from his position with the Post Office Department. Burton also avers that defendants from the Post Office Department, CSC, and Justice Department " conspired with each other (or someone)" to remove him from his job and refuse him promotion in violation of his rights.
The final portion of Burton's complaint charges that the Justices of the Supreme Court deprived him of his equal rights under the law to have the decision of the Court of Claims reviewed pursuant to 28 U.S.C. § 1255. Finally, Burton avers that the Justices of the Supreme Court conspired with defendant Griswold and unlawfully permitted Griswold to file a "worthless memorandum" rather than a "compulsory brief" in opposition to Burton's petition for a writ of certiorari.
Burton, proceeding pro se, has filed a lengthy and rambling complaint which contains little more than demands, charges, and conclusions. The complaint is not a short and plain statement of the case and flagrantly violates Fed. R. Civ. P. 8. On this ground alone the complaint may be dismissed. Koll v. Wayzata State Bank, 397 F.2d 124 (8 Cir. 1968), United States ex rel. Holland v. Maroney, 299 F. Supp. 262 (W. D. Pa. 1969).
Since filing his complaint, Burton has submitted numerous motions, requests, and demands to the Court. Although several of these have been in the form of letters and telegrams, and Burton has consistently failed to comply with Local Rule 36,
several of the motions require discussion at this time.
Burton has filed two motions to amend his complaint by joining branches of the Post Office Department as defendants. For reasons stated below, the complaint is dismissed. Consequently, there is no need to pass on these motions.
On December 14, 1970, Burton requested prompt reconsideration of his "Application for Writ of Preliminary Injunction" which was denied by Order of this Court on December 3, 1970. In his request, Burton states that the Court erroneously relied upon the decision of the Court of Claims in Burton v. United States, supra, since a decision is still pending and only a " sham report" has been filed. No additional facts or legal arguments were presented. The original refusal to issue the injunction was correct and, therefore, the request for reconsideration is Denied.
Burton has attempted to have default judgments entered pursuant to Fed. R. Civ. P. 55(a)
against defendants for failure to plead. Rule 55(e),
however, provides that default judgment shall not be entered against officers of the United States until plaintiff establishes his claim before the Court. "Clearly, mere failure on the part of the United States to answer is no ground for entry of judgment . . . . Having filed only his complaint, plaintiff's motion must be denied as premature." Fedor v. Ribicoff, 211 F. Supp. 520 (E.D. Pa. 1962). It is clear that Burton has read only that portion of Rule 55 which appears to suit his needs and has ignored the other subsections. The request of Burton for entry of default judgments against defendants, all of whom are government officers, is Denied.
Burton has also moved to strike defendants' motion to dismiss averring that it is untimely. Defendants, however, have been granted an enlargement of time pursuant to Fed. R. Civ. P. 6. It is within the discretion of the Court to grant such enlargement. Caraballo v. Lykes Bros. Steamship Co., 212 F. Supp. 216 (E.D. Pa. 1962). Consequently, the motion of defendants is not untimely and the motion to strike is Denied. Moreover, "it must be borne in mind that the issue of jurisdiction is always open and should be determined in limine by a trial court." Underwood v. Maloney, 256 F.2d 334, 340 (3 Cir. 1958).
Defendants have moved to dismiss Burton's complaint averring, inter alia, that this Court lacks jurisdiction over the subject matter, the complaint is frivolous, and the complaint fails to state a claim upon which relief can be granted.
Burton is attempting to bring this civil rights action under 42 U.S.C. § 1981
and states that this Court has jurisdiction pursuant to 28 U.S.C. § 1343(4).
The Supreme Court, in holding that the allegations of a complaint were insufficient to establish jurisdiction under the anti-trust laws, has said, in Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106, 77 L. Ed. 1062, 53 S. Ct. 549 (1934):
"Whether an objection that a bill or a complaint fails to state a case under a federal statute raises a question of jurisdiction or of merits is to be determined by the application of a well settled rule. If the bill or complaint sets forth a substantial claim, a case is presented within the Federal jurisdiction, however the court, upon consideration, may decide as to the legal sufficiency of the facts alleged to support the claim. But jurisdiction, as distinguished from merits, is wanting where the claim set forth in the pleading is plainly unsubstantial. (Cites omitted.) And the federal question averred may be plainly unsubstantial either because obviously without merit, or 'because its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.' Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288, 54 L. Ed. 482, 30 S. Ct. 326 (1910) . . .."
See also United Mine Workers of America v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Springfield Television Inc. v. City of Springfield, Mo., 428 F.2d 1375 (8 Cir. 1970); Port Authority Bondholders Protective Committee v. Port of New York Authority, 387 F.2d 259 (2 Cir. 1967).
Although none of the above-cited cases concerned jurisdiction based upon § 1343, the reasoning is applicable. For the Court to assume jurisdiction pursuant to § 1343(4), the plaintiff must assert a claim "under any Act of Congress providing for the protection of civil rights". Where, however, the claim asserted under the Civil Rights Acts is "plainly unsubstantial . . . because obviously without merit", jurisdiction over the subject matter is lacking. Indeed, Judge Masterson of this Court dismissed the complaint in Myers v. Jamie Music Publishing Co., C.A.:43822 (E.D. Pa. March 18, 1971), for lack of jurisdiction over the subject matter when jurisdiction was allegedly based upon § 1343, saying: "These jurisdictional allegations are insufficient to confer jurisdiction on this Court because . . . Plaintiff's allegations of a conspiracy to deprive him of his civil rights are totally unsupported by the facts alleged in his complaint."
In Hamilton v. Pelagatti,-F. Supp.-(E.D. Pa. February 25, 1971), I reiterated the policy of the courts to afford liberal construction of a plaintiff's complaint so that the action will not fail entirely merely because plaintiff misconceives the nature of the proceeding or mislabels his petition. In accord with this policy, Burton's complaint has been construed in a manner most favorable to him.
Nonetheless, Burton's complaint has been found to be totally devoid of merit. Allegations of denial of equal treatment of law and references to 42 U.S.C. § 1981, unsupported by facts which could possibly provide a basis for relief under the Civil Rights Acts, are insufficient to confer jurisdiction upon this Court pursuant to 28 U.S.C. § 1343. The complaint must be dismissed because this Court lacks jurisdiction over the subject matter.
Burton's complaint must also be dismissed for failure to state a claim upon which relief can be granted. In addition to failure to allege facts which, if proved, would entitle Burton to relief, all of the defendants are immune from suit under the Civil Rights Acts. 42 U.S.C. § 1981 et seq.
Judicial officers are immune from suit under the Civil Rights Acts for acts undertaken in the performance of their duties. Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967); see also Bauers v. Heisel, 361 F.2d 581 (3 Cir. 1966) and cases cited therein. Clearly, the Justices and clerks of the Supreme Court, the Judges and clerks of the Court of Claims, members of the Civil Service Commission, and employees of the Justice Department who defended the action on behalf of the United States are immune from suit.
Burton has also joined as defendants officials and employees of the Post Office Department. Federal employees enjoy a more general form of immunity from personal liability from all actions taken within the outer perimeters of their official duties. Barr v. Matteo, 360 U.S. 564, 3 L. Ed. 2d 1434, 79 S. Ct. 1335 (1959); Keiser v. Hartman, 339 F.2d 597 (3 Cir. 1964), cert. den. 381 U.S. 934, 85 S. Ct. 1764, 14 L. Ed. 2d 699. This immunity also applies when jurisdiction is claimed under the Civil Rights Acts. See Gregoire v. Biddle, 177 F.2d 579 (2 Cir. 1949), cert. den. 339 U.S. 949, 94 L. Ed. 1363, 70 S. Ct. 803. In Rosenman v. Levbarg, 435 F.2d 1286 (3 Cir. 1970), the Third Circuit said (at 1287):
"We recognize the long-standing salutory rule that 'the appointment to an official position in the Government, even if it be simply a clerical position, is not a mere ministerial act, but one involving the exercise of judgment,' and 'therefore it is one of those acts over which the courts have no general supervisory powers.' "