Adams and Gibbons, Circuit Judges, and Whipple, District 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.*fn1 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:
"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.
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:
"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 ...