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HERTZKE v. RILEY

May 8, 1989

GEORGE HERTZKE, et al.
v.
JOHN RILEY, et al.



The opinion of the court was delivered by: DUBOIS

 JAN E. DuBOIS, UNITED STATES DISTRICT JUDGE

 Presently before me is the Motion of the defendants, John Riley, John Doherty, Donn Jerre Miller, Robert Lumsden, John Morgan and the United States Drug Enforcement Administration (hereinafter the "Federal Defendants"), to Dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted and the Motion of the defendant, Ralph Marinetti (hereinafter sometimes referred to as the "State Defendant"), for Summary Judgment pursuant to Fed. R. Civ. P. 56. Because the Court has been presented with evidence outside the pleadings which I have not excluded, the Federal Defendants' Motion to Dismiss shall be treated as a motion for summary judgment pursuant to Fed. R. Civ. P. 56. See Carter v. Stanton, 405 U.S. 669, 31 L. Ed. 2d 569, 92 S. Ct. 1232 (1972). This Court has jurisdiction pursuant to 28 U.S.C. §§ 1343 and 1346.

 In this suit plaintiffs allege that the actions of the defendants in obtaining the cooperation of plaintiff, Sharon Hertzke, in an investigation of illegal drug related activities and the placement of the three plaintiffs in the Federal Witness Protection Program ("FWPP") resulted in a deprivation of plaintiffs' constitutional right to liberty under the Due Process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. The defendants' Motions will be granted and judgment will be entered in favor of the defendants and against the plaintiffs on the ground that plaintiffs have failed to allege a constitutional violation.

 For the purposes of these Motions, "the evidence of the non-movant[s] [is] to be believed, and all justifiable inferences are to be drawn in [their] favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). With that directive in mind, the facts of this case may be summarized as follows:

 In late 1982, plaintiff Sharon Hertzke contacted the Whitehall Township police with information concerning illegal drug related activities. Ms. Hertzke learned of this information through her sister, who, at various times, resided with Ms. Hertzke, her husband and her son. There is no evidence that Ms. Hertzke had any criminal record or that she had engaged in any criminal enterprise.

 The Whitehall Township police referred the case to the Pennsylvania State Police Strike Force. In January of 1983, Trooper James McAndrew of the Strike Force interviewed Ms. Hertzke. In early February of 1983, Ms. Hertzke met with Trooper McAndrew's superior, defendant Corporal Ralph Marinetti. Corporal Marinetti asked Ms. Hertzke to become a confidential informant and to participate in the investigation by making a "chemical drop" - delivering a chemical used to manufacture an illegal drug. On February 4, 1983, Ms. Hertzke signed papers consenting to a body wiring. While Ms. Hertzke was in contact with the Strike Force, various officers spoke to her about meeting with people from the United States Drug Enforcement Agency ("DEA") and told her that people from the DEA would "take care of her."

 A few days prior to February 17, 1983, Ms. Hertzke met with Pennsylvania State Police Strike Force Officers McAndrew and Marchetti to discuss the FWPP. On February l7, 1983, Ms. Hertzke and her husband, plaintiff George Hertzke, met with defendants, John Doherty, an Assistant U.S. Attorney, and DEA Agents Donn Jerre Miller, Robert Lumsden, and John Morgan, and Officer Marinetti. Officers McAndrew and Marchetti were also in attendance. At this meeting Agents Lumsden and Morgan explained the FWPP to plaintiffs Sharon and George Hertzke. Agents Lumsden and Morgan also promised the plaintiffs that rather than entering the FWPP, the plaintiffs could be relocated anywhere they wanted and given a lump sum of money. The amount of money was never disclosed to the plaintiffs.

 Shortly before the arrests of the subjects of the investigation were made on April 18, 1983, Agent Lumsden informed Ms. Hertzke that no money was left for the lump sum option. In May of 1983, Ms. Hertzke again discussed the FWPP, and she and her family agreed to participate in the program. Thereafter, the plaintiffs were placed in a safe house in the Poconos for two months until they entered the program on June 29, 1983. The plaintiffs have remained in the FWPP since that time.

 Under Fed. R. Civ. P. 56(c), summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving part[ies] [are] entitled to judgment as a matter of law." Summary judgment is mandatory when "a party . . . fails to make a showing sufficient to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 Plaintiffs contend that the broken promise by the DEA agents - to give the Hertzkes a lump sum of money and relocate them anywhere - has placed their lives in danger and has forced them to participate in the FWPP which has deprived them of their constitutional right to liberty as stated in the Due Process clauses of the Fifth and Fourteenth Amendments to the United States Constitution. Plaintiffs seek to impose liability for deprivation of their constitutional rights and conspiracy to deprive them of their constitutional rights against the State Defendant under 42 U.S.C. §§ 1983 and 1985(3) and against the Federal Defendants under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971).

 To state a cause of action under 42 U.S.C. § 1983, the plaintiffs must allege that the defendants have violated some right "secured by the Constitution and laws." See Baker v. McCollan, 443 U.S. 137, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979). Similarly, the plaintiffs must allege the violation of a constitutional right to sustain a Bivens action. Rodriguez v. Ritchey, 556 F.2d 1185, 1190 (5th Cir. 1977), cert. denied, 434 U.S. 1047, 54 L. Ed. 2d 799, 98 S. Ct. 894 (1978); McNally v. Pulitzer Pub. Co., 532 F.2d 69, 76 (8th Cir.), cert. denied, 429 U.S. 855, 50 L. Ed. 2d 131, 97 S. Ct. 150 (1976). Thus, the threshold issue is whether the restraints imposed by the FWPP encroach on the liberty rights secured by the constitution. I find that they do not.

 It is uncontested that participation in the program is voluntary. Although participants in the program must abide by certain restrictive rules, once a prospective participant is accepted, the decision to enter the program is entirely left to that person's discretion. Moreover, once an ...


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