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J. D. PFLAUMER, INC. v. UNITED STATES DOJ

May 18, 1978

J. D. PFLAUMER, INC., and PFLAUMER REALTY CO., INC.
v.
UNITED STATES DEPARTMENT OF JUSTICE, et al.



The opinion of the court was delivered by: VANARTSDALEN

 VanARTSDALEN, J.

 On January 20, 1977, the plaintiff, Pflaumer Realty Co., Inc. (Pflaumer), was served with a grand jury subpoena requiring the production of certain of its books and records. Rather than requiring the formal production of these documents, Donald F. Manno, the Assistant United States Attorney in charge of the grand jury investigation, agreed to permit the records to remain in Pflaumer's custody at its registered office at 1342 N. Howard Street, Philadelphia, Pennsylvania, upon the condition that the federal agents conducting the investigation be permitted to review the subpoenaed documents whenever necessary. *fn1"

 On February 25, 1977, the plaintiff, J. D. Pflaumer, Inc. (Pflaumer), *fn2" whose principal place of business is also located in the same premises occupied by Pflaumer Realty, Inc., was served with a grand jury subpoena requiring the production of certain of its books and records. Again, Manno agreed to allow the records to remain in Pflaumer's custody upon the condition that the agents be permitted to review them, when necessary, at Pflaumer's offices. *fn3"

 On various occasions between January and May of 1977, agents of the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco and Firearms (ATF) visited the plaintiffs' business premises and were permitted to review the subpoenaed documents in accordance with the agreement outlined above.

 On May 13, 1977, in the course of reviewing some of these documents, ATF Inspector Richard L. Bushman (Bushman) telephoned Manno and advised him of his belief that certain of the documents had been altered. *fn4" Based on this information, Manno directed Bushman and a number of other agents to seize the subpoenaed documents. In accordance with that directive, Bushman and seven other agents, four of whom are, as yet, unidentified, entered the plaintiffs' business premises and demanded the production of the subpoenaed documents, all of which were turned over by the plaintiffs' employees. After supplying the plaintiffs with an itemized receipt for the documents, the agents left the premises and transported the documents to the offices of the Philadelphia Strike Force. *fn5"

 At no time prior to seizing these documents did the defendants secure a warrant and although it is not entirely clear from the present record whether the plaintiffs, through their agents or employees, consented to this seizure, *fn6" it is apparent that counsel for the plaintiffs advised the defendants by telephone during the course of the search that they were in violation of the plaintiffs' fourth amendment rights.

 The defendants have now filed a motion to dismiss the complaint for failure to state a cause of action and/or in the alternative a motion for summary judgment in favor of the individual and government agency defendants.

 I. Motion to Dismiss the Complaint for Failure to State a Cause of Action.

 The plaintiffs filed this action seeking both injunctive relief and monetary damages for the violation of their fourth amendment rights resulting from the defendants' alleged warrantless seizure of their books and records. Count I of the complaint asserts a cause of action under § 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Count II alleges that the defendants "[conspired] for the purpose of depriving plaintiffs of the privileges secured to them by the Constitution of the United States," and asserts a cause of action under § 2 of the Civil Rights Act of 1871, 42 U.S.C. § 1985. Count III alleges that the defendants "[had] knowledge of the wrongs conspired to be done . . . and, having power to have prevented the commissions of the wrongs . . . permitted the illegal search and seizure to occur" and asserts a cause of action under § 6 of the Civil Rights Act of 1871, 42 U.S.C. § 1986. The final count in the complaint asserts a cause of action directly under the fourth amendment relying upon the Supreme Court's decision in Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971). Plaintiffs rely upon the general federal question jurisdiction 28 U.S.C. § 1331(a) *fn7" and the jurisdictional counterpart of the Civil Rights Act of 1871, 28 U.S.C. § 1343(3).

 1. Section 1983

 Section 1 of the Civil Rights Act codified as 42 U.S.C. § 1983 provides:

 
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 It is clear from the express language of this statute that it provides an aggrieved individual with a cause of action to redress a civil rights violation caused by actions taken under the color of state law. In this case, the defendants are all federal officials whose actions were taken pursuant to their federal authority. Section 1983 is an improper basis upon which to assert a cause of action for an alleged civil rights violation perpetrated under the color of federal law. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975); Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971), cert. denied, 404 U.S. 1061, 30 L. Ed. 2d 749, 92 S. Ct. 747 (1972).

 Accordingly, plaintiffs claim under this section of the Civil Rights Act will be dismissed.

 2. Section 1985

 The plaintiffs have failed to delineate upon which of the three subsections of § 1985 they place their reliance. It is apparent, however, from a reading of the statute that only subsection(3) is arguably relevant. *fn8" That section provides, in pertinent part:

 
If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

 In Bethea v. Reid, supra at 1164, the Court of Appeals for the Third Circuit affirmed without extensive elaboration the district court's dismissal of a complaint against federal officials for the alleged use of perjured testimony in a criminal trial against the plaintiff and for violations of his fourth amendment rights, on the grounds that 42 U.S.C. §§ 1983 and 1985 do not provide a cause of action against federal officials acting under color of federal law. The more recent decision by the Court of Appeals in Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976), suggests, however, that 42 U.S.C. § 1985 reaches even federal action. See Jennings v. Shuman, 567 F.2d 1213, 1221, n. 12 (3d Cir. 1977). *fn9" This latter decision is in keeping with the Supreme Court's holding in Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1970), that § 1985 is not limited by the state action requirement of § 1983 and reaches even conspiracies among private individuals which violate this section.

 
Griffin, supra, also held, however, that [the] language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class based, invidiously discriminatory animus behind the conspirators' actions. The conspiracy, in other words, must ...

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