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SHADD v. UNITED STATES

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA


February 20, 1975

Harold George SHADD, pro se, Petitioner,
v.
UNITED STATES of America and Federal Bureau of Investigation, Respondents

Marsh, Chief Judge.

The opinion of the court was delivered by: MARSH

OPINION AND ORDER

MARSH, Chief Judge.

 The petitioner has filed two civil actions seeking to amend and correct the FBI files which list the petitioner's criminal record. Since both actions request substantially the same relief, they have been consolidated. The government replied to the petition to amend and correct by filing a motion to dismiss or, in the alternative, for summary judgment. It is that motion which is now before the court.

 Petitioner has requested this court to issue an order upon the Federal Bureau of Investigation, the Pennsylvania State Police, and the Federal Penitentiary in Lewisburg, Pennsylvania, to correct inaccuracies in the records relating to the petitioner. Additionally, petitioner has requested this court to order the parties to expunge from the records some matters which the petitioner asserts should not be listed at all. Petitioner claims that these alleged inaccuracies and improper entries have affected his standing with the parole board. The government argues that the petitioner has failed to state a claim upon which relief can be granted and submits as Exhibit #1 a true and certified copy of the FBI Identification Division record of Harold George Shadd (FBI number 5 115 009). Petitioner does not challenge the genuineness of the exhibit.

 Civil Action No. 74-976

 Petitioner claims, in Civil Action No. 74-976, that the FBI records improperly contain an entry relating to a criminal complaint (No. 72-185) brought in this federal court. The FBI entry with regard to this matter correctly reflects dismissal of the case, *fn1" but petitioner argues that the entry must, as a matter of law, be expunged.

 It is well established that a court may order the expungement of arrest records and that such an order is an appropriate remedy when the police action and arrest violated certain basic constitutional rights. Two decisions which are typical of the instances where courts have ordered expungement of arrest records are Hughes v. Rizzo, 282 F. Supp. 881, 885 (E.D.Pa.1968), where mass arrests were made for the sole purpose of harassing "hippies," and Sullivan v. Murphy, 156 U.S.App.D.C. 28, 478 F.2d 938, 968 (1973), where the lack of usual arrest procedures in the mass arrests made during May Day demonstrations rendered any judicial determination of probable cause impossible.

 The present case does not involve such a situation. Petitioner does not contend that his arrest on the firearms charge (No. 72-185) was without probable cause or that it was solely for harassment purposes, and there is no reason to believe such a contention could be justified. Petitioner's reliance on Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017 (D.C.Cir. 1974) is misplaced since that case dealt with a situation where there was an absence of probable cause for the arrest and where no criminal complaint had ever been filed. See 498 F.2d at 1019.

 The FBI record properly reflects the magistrate's dismissal and an order for expungement would be inappropriate. See United States v. Dooley, 364 F. Supp. 75, 78 (E.D.Pa.1973); United States v. Rosen, 343 F. Supp. 804, 806 (S.D.N.Y. 1972). For these reasons, the government's motion to dismiss will be granted as to this matter and an order will be entered dismissing the petition at Civil Action No. 74-976 as without merit.

 Civil Action No. 74-943

 In this action, petitioner has specified five matters which he alleges are incorrectly entered on the FBI record. He lists these matters as follows (See amended complaint, pp. 2 and 3): "C-1 No. 5 August Sessions, 1952, Court of Common Pleas, Mifflin County, Pennsylvania. Set-aside and vacated August 16th, 1974. C-2 No. 100, May Sessions, 1952, Court of Common Pleas, Mifflin County, Pennsylvania. Set-aside and vacated, August 16th, 1974. C-3 No. 253, October Term, 1972, Westmorland County, Pennsylvania. Set-aside, vacated and dismissed, April 4th, 1973. C-4 No. 72-185, (Federal) W.D. of Penna. R. M. Dismissed July 27th, 1972. C-5 No. 72-108, (Federal) W.D. of Pa. Verdict of Acquittal, No- vember, 1972."

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