# Margaret S. Rodriguez v. Donald E. Ritchey

> Court of Appeals for the Fifth Circuit · September 22, 1976 · 539 F.2d 394

URL: https://www.frixlaw.com/law-library/cases/9462955

## Case

- **Full name:** Margaret S. RODRIGUEZ, Plaintiff-Appellant, v. Donald E. RITCHEY Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** September 22, 1976
- **Citations:** 539 F.2d 394; 1976 U.S. App. LEXIS 7012
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tjoflat
- **Judges:** Coleman, Roney, Tjoflat
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9462955

## How later opinions describe it (automated extraction)

- finding that investigative agents who did not participate in the actual arrest could be held liable for Fourth Amendment violations and noting that “general principles of tort law provide a cause of action for unlawful arrest against a defendant who affirmatively instigated, e…

## Opinion text

TJOFLAT, Circuit Judge
(concurring in part and dissenting in part):
Purporting to rely on the Supreme Court’s decision in Bivens v. Six Unknown Named Agents, 1 the majority has today fashioned a federal common law cause of action against a federal officer who has neither violated the Constitution nor even committed a common law tort. They have held that a federal law enforcement officer who participates in a criminal investigation culminating in a federal grand jury indictment can be held answerable in money damages to one indicted and subsequently arrested. The officer is said to be subject to liability even though the indictment is lawfully returned and the capias, which brings about the arrest of the one who makes claim against him, is valid. All that the claimant must prove is that the indictment against him has been dismissed and that, but for the agent’s negligent investigation, the indictment would probably not have been returned in the first place.
The relevant facts of this case are simple. It is not contested that the indictment against Margaret Rodriguez was lawfully returned by a duly, convened federal grand jury and that she was arrested pursuant to a valid warrant. It subsequently appeared that the government had no case against her because a recorded telephone conversation which was thought to contain her voice and to implicate her in the gambling ring involved someone else. Without this evidence, the United States Attorney concluded that a case could not be made out against her; and, accordingly, his application to the district court for a dismissal of the charges against her was granted.
Numerous FBI agents were involved in the massive gambling investigation which lead to the indictment of fifty-seven persons under section 803 of the Organized *405 Crime Control Act of 1970. 2 Agent Ar-wine’s role was minor. Insofar as the record discloses, his participation was restricted to identifying the voice of “Margo” on the recorded telephone conversation. The argument is made that he was careless in the techniques he employed in his investigation, that proper diligence would have disclosed that Margaret Rodriguez was not “Margo”. It is urged that because of his inattentiveness to detail he relayed an erroneous conclusion to the case agent, James S. Kinne, who, in turn, incorporated it in his grand jury presentation. Thus, Ms. Rodriguez was included in the indictment.
The majority concludes that such conduct as Arwine’s is sufficient to render one liable in a Bivens-type cause of action. In my opinion, the majority’s rationale cannot be squared with Bivens at all. I suggest that under any reasonable construction given to the pleadings or the evidence in this case, a cause of action has not been stated under either Bivens or federal common law. Indeed, the claim against Agent Arwine is so clearly insubstantial and frivolous that it should be dismissed for lack of subject matter jurisdiction. 3
II
28 U.S.C. § 1331 (a) grants jurisdiction to the district courts when the action arises under the United States Constitution or federal laws. It has been established that an action brought under federal common law also finds its jurisdictional base in that section. 4 Since no violation of a federal statute has been alleged in this non-diversity action (nor could it have been successfully), 5
6 it is our task to examine whether the record before us could support any legitimate contention that Agent Arwine’s con-, duct violated the Constitution or federal common law. In my opinion it cannot.
A. Constitutional Tort
In Bivens v. Six Unknown Named Agents 6 it was alleged that agents of the Federal Bureau of Narcotics entered Bivens’ apartment, arrested him, and then thoroughly searched his dwelling, all without a warrant or probable cause. The Supreme Court decreed that when an individual can demonstrate an injury resulting from the violation of his fourth amendment rights by federal officers, he may recover damages. 7 The damage action was premised on the unconstitutional conduct of the officers. 8
Bivens is inapplicable for a very simple reason. In the instant case there has been no unconstitutional seizure. Ms. Rodriguez was properly arrested pursuant to a grand jury indictment and a valid capias. This is totally unlike the Bivens situation where *406 federal agents were alleged to have acted without probable cause or a warrant and with unreasonable force in making their arrest. Nothihg of the sort is alleged here. Just because a person validly arrested is later discovered to be innocent does not make her arrest “unlawful” for Fourth Amendment purposes. To the contrary, an arrest carried out pursuant to a validly issued warrant is conclusively presumed to be proper. 9
The majority opinion does not try to har- ■ monize Bivens and this case. Instead, it’ relies upon the general tort law of false arrest to hold that Agent Arwine has “caused” the arrest of Ms. Rodriguez. Apparently, this is seen as synonymous with participating in a fourth amendment seizure. Leaving aside the fact that this'arrest was not false, but lawful, general tort law still fails the majority. The case law nowhere imposes liability on persons engaged merely in investigatory work. 10 Indeed, it is the general rule that one who only gives information is not liable for a false arrest, even if the information is given maliciously and without probable cause. 11
*407 A prior decision of this court, Perry v. Jones, 12 is instructive on this point. In that case a state police officer involved in an investigation recorded statements of witnesses who identified Perry as an armed robber. When such information later turned out to be false, Perry, who had been incarcerated under an arrest warrant relying on the witnesses’ statements for probable cause, sued several officials for false arrest. Judge Coleman, for a unanimous panel, dismissed the complaint against the investigating officer. The court pointed out that he had performed in the line of duty and that he had not filed the complaint personally. This had been done by another officer with the clearance of the District Attorney’s Office. 13
The facts here demonstrate that Agent Arwine, even under_general tort law, 14 neither actually nor constructively participated in the arrest of Ms. Rodriguez. Moreover, the majority seems to work under the perhaps erroneous conclusion that it was solely Agent Arwine’s evidence that was presented to the grand jury concerning Ms. Rodriguez. 15 If other evidence were presented, it could very possibly have been an intervening or superseding cause, relieving him of tort liability.
Since Agent Arwine has committed no constitutional violation, a Bivens-type action is unavailable against him. 16 What *408 Ms. Rodriguez’s complaint boils down to, then, is that she demands recovery from an investigator who could reasonably foresee that she might be validly indicted if he performed his work negligently. Since there is no federal statute granting such relief, and no constitutional tort can be implied, we must examine whether she has stated a claim under federal common law.
B. Federal Common Law
In Wheeldin v. Wheeler 17 an investigator for the House Un-American Activities Committee was alleged to have filled in, without authority and with malicious intent, a subpoena requiring the petitioner to appear before the Committee. This caused him great disgrace and the loss of his job. Nevertheless, the Supreme Court denied relief. After searching for a fourth amendment violation but seizing upon none, it turned to the question of whether a cause of action arose under section 1331 via federal common law. The majority refused to fashion a federal tort of abuse of process, elucidating that “it is perhaps needless to state that we are not in the free-wheeling days antedating Erie R. Co. v. Tompkins, 304 U.S. 64 , 58 S.Ct. 817 , 82 L.Ed. 1188 . The instances where we have created federal common law are few and restricted.” 18 The case at hand is controlled by Wheeldin. There a flagrant abuse of federal process did not dictate the creation of a federal common law remedy. Here the essentials of a common law action for malicious prosecution or abuse of process have not even been alleged. 19 As a result, the conclusion seems inescapable that no cause of action has been stated under federal common law. 20
Ill
A few additional observations should be made about the consequences that may well flow from the rationale the majority has adopted today. It should be anticipated that on remand Agent Arwine, taking his cue from the majority opinion, may seek to discover the entire grand jury proceedings that led to the fifty-seven defendant indictment, to explore the FBI files in the case, and to interrogate the prosecutor, all in an *409 effort to demonstrate that his conduct was not the proximate cause of the indictment and subsequent arrest of Ms. Rodriguez. To the extent that the district court seeks to preserve the secrecy grand jury proceedings demand under the law it may well impede Arwine’s right to present a defense and, perhaps, preclude him that right altogether. The majority opinion, therefore, puts in direct conflict the legitimate discovery needs of Agent Arwine and the strong public policy of keeping grand jury proceedings private.
But the threat presented to the integrity of the grand jury process by today’s holding goes beyond the immediate case. Any time an indictment is dismissed, the investigating officers will be open to the claim that the indictment was the product of negligent investigation. Once a sufficient allegation is made, should it not be anticipated that discovery will involve the grand jury proceedings in every case? In addition, there are undoubtedly those who will present a claim simply to find out what business the grand jury is about. The devastating potential of this decision in the field of law enforcement is obvious and requires no further discussion.
In sum, I would remand the claim against Agent Arwine with instructions to dismiss for want of subject matter jurisdiction. As for the other agents, I concur in the result reached by the majority; the judgment of the district court as to them should be affirmed.
. 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971).
. 18 U.S.C. § 1955 (1970).
. See note 8 infra. It is, of course, incumbent upon the federal courts to dismiss an action when it appears that they have no jurisdiction. Capron v. Van Noorden, 6 U.S. (2 ¿ranch) 125, 2 L.Ed. 229 (1804); Skidmore v. Syntex Laboratories, Inc., 529 F.2d 1244 , 1248 n. 3 (5th Cir. 1976).
. Illinois v. Milwaukee, 406 U.S. 91 , 92 S.Ct. 1385 , 31 L.Ed.2d 712 (1972). See generally Nolan v. Meyer, 520 F.2d 1276, 1278 (2d Cir.), cert. denied, 423 U.S. 1034 , 96 S.Ct. 567 , 46 L.Ed.2d 408 (1975).
. See District of Columbia v. Carter, 409 U.S. 418, 424-25 , 93 S.Ct. 602 , 34 L.Ed.2d 613 (1973) (section 1983 does not apply to actions of the federal government).
. See note 1, supra.
. 403 U.S. at 397 , 91 S.Ct. 1999 .
. Id. at 389, 396-97 , 91 S.Ct. 1999 . The Court specifically distinguished cases where a constitutional violation was not alleged: “Nor are we asked in this case to impose liability upon a congressional employee for actions contrary to no constitutional prohibition, but merely said to be in excess of the authority delegated to him by the Congress. Wheeldin v. Wheeler, 373 U.S. 647 , 83 S.Ct. 1441 , 10 L.Ed.2d 605 (1963).” 403 U.S. at 396-97 , 91 S.Ct. at 2005 .
The majority seeks comfort from Bell v. Hood, 327 U.S. 678 , 66 S.Ct. 773 , 90 L.Ed. 939 (1947). It affords none. In Bell the complaint alleged that damages were suffered as a result of unconstitutional searches and seizures by FBI agents. The district judge dismissed the suit for lack of subject matter jurisdiction because it did not “arise under the Constitution of laws of the United States” as required by 28 U.S.C. § 41 (1), now codified at 28 U.S.C. § 1331 (a) (1970). The Supreme Court in Bell *406 declined to determine whether such allegations stated a cause of action, a question answered in the affirmative by Bivens some twenty-five years later. It made clear, however, that when a complaint “is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court . . . must entertain the suit.” 327 U.S. at 681-82 , 66 S.Ct. at 776 . Dismissal for failure to state a claim for relief is a dismissal on the merits, not for want of jurisdiction. Id. at 682 , 66 S.Ct. 773 .
The majority in Bell noted two exceptions to this rule. It noted that “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous” a dismissal for want of jurisdiction is in order. Id. at 682-83 , 66 S.Ct. at 776 . The case before us clearly falls within these exceptions. Ms. Rodriguez freely admits that the only search or seizure which she challenges, her arrest, was made pursuant to a valid arrest warrant. Furthermore, Agent Ar-wine was not even present at the arrest. No legitimate constitutional violation has been alleged nor can one be inferred from the record. Without the "presence of such an allegation there obviously can be no claim which arises under the Constitution as is required by section 1331. Ms. Rodriguez’s claims are “wholly insubstantial and frivolous” and hence fail to provide jurisdiction. (See note 9 infra and accompanying text for further discussion.)
The majority also places reliance on Weir v. Muller, 527 F.2d 872 (5th Cir. 1976). It is misplaced. In Weir the plaintiff validly alleged in his complaint that federal officials in the course of a tax evasion investigation and subsequent prosecution had violated his Fifth Amendment right to due process of law. The district court erroneously dismissed the claim for lack of subject matter jurisdiction and the panel reversed on the authority of Bell . The panel did not, of course, express any Opinion as to the merits of his claims. But cf. Paul v. Davis, 424 U.S. 693 , 96 S.Ct. 1155 , 47 L.Ed2d 405 (1976). The complaint of Ms. Rodriguez, on the other hand, alleges only an “unlawful arrest” without probable cause. The uncontroverted facts, however, do not support the legal conclusion of Ms. Rodriguez that her arrest • was “unlawful.” See note 9 infra and accompanying text. Consequently, no constitutional deprivation has been successfully alleged as it was in Weir .
. United States v. Cravero, 536 F.2d 637, 647-48 (5th Cir. 1976): “The arrest warrants represent judicial sanction of the deprivations of the suspects’ liberties. Possession of the warrants was a completely self-validating justification for the arrests . . .”
. As the majority concedes, Perry v. Jones, 506 F.2d 778 (5th Cir. 1975); Brubaker v. King, 505 F.2d 534 (7th Cir. 1974) and Tritsis v. Backer, 501 F.2d 1021 (7th Cir. 1974), all section 1983 civil rights cases, never discuss this point. Although it is true that Agent Backer was involved only in investigation, the court dismissed the case as to him solely on account of his good faith defense. In Strutt v. Upham, 440 F.2d 1236 (9th Cir. 1971), the policeman, although he acted as investigator, was also the one who filed the complaint and was thus the instigator of the arrest.
. Carr v. National Discount Corp., 172 F.2d 899, 902 (6th Cir.), cert. denied, 338 U.S. 817 , 70 S.Ct. 59 , 94 L.Ed. 495 (1949); see also Charles Stores Co. v. O’Quinn, 178 F.2d 372, 374 (4th Cir. 1949); Stueber v. Admiral Corp., 171 F.2d 777 (7th Cir.), cert. denied, 336 U.S. 961 , 69 S.Ct. 891 , 93 L.Ed. 1113 (1949); Chesapeake & Potomac Tel. Co. v. Lewis, 69 U.S. App.D.C. 191, 99 F.2d 424 (1938).
Palmentere v. Campbell, 344 F.2d 234 (8th Cir. 1965), and Burlington Transp. Co. v. Josephson, 153 F.2d 372 (8th Cir. 1946), cited by *407 the majority, are not to the contrary. Those cases held that if the defendant did not participate in the false arrest, the plaintiff must show that he affirmatively instigated, directed, or encouraged the wrongful action. This rule clearly contemplates activity more closely tied to the actual arrest than that of Arwine, as the facts of those cases demonstrate. In Palmentere the court dismissed false arrest and imprisonment actions against grand jurors who had no responsibility for actually arresting persons. In Josephson , even though the defendant had initiated the arrest with his complaint, he was not guilty of false arrest because the police had failed to procure a warrant. See also Manaro v. Rosenberg, 231 F.2d 305 (7th Cir.), cert. denied, 351 U.S. 970 , 76 S.Ct. 1039 , 100 L.Ed. 1489 (1956), where an instigating party had no liability since he had no control of the actions of the arresting officers.
. 506 F.2d 778 (5th Cir. 1975).
. Id. at 780 .
. By using the term “general tort law,” I do not advocate its appropriateness in a case of this kind — a non-diversity action where the issue is what constitutes a fourth amendment seizure. I simply meet the majority on its own grounds.
. Although from the record one might be tempted to conclude that the evidence obtained by Agent Arwine was the only evidence linking Ms. Rodriguez to the gambling operation, this is nowhere stated to be the case. (It cannot be legitimately inferred that just because the government dismissed its case because one piece of evidence was proven to be false that that piece of evidence was its only one.) Indeed, section 1955 does not reach simple bettors. The statute only reaches a person who “conducts, finances, manages, supervises, directs, or owns” an illegal gambling business. 18 U.S.C. § 1955 (a) (1970). A simple phone call from a person known to be so involved would not normally suffice to draw the receiver of the call under the section’s' ambit.
. Even if it is assumed arguendo that a constitutional tort has been perpetrated, it is still apparent that Agent Arwine has not forfeited his immunity in this case. It is not at all clear to me what the majority sees as the relationship between immunity and negligence in this situation. If they are holding that mere negligence waives an officer’s immunity, I must disagree. See Bryan v. Jones, 530 F.2d 1210 (5th Cir. 1976) (en banc). The case law, including Bivens v. Six Unknown Named Agents, 456 F.2d 1339 (2d Cir. 1972), and Wood v. Strickland, 420 U.S. 308 , 95 S.Ct. 992 , 43 L.Ed.2d 214 (1975), rejects a simple negligence test. To lose his immunity, an officer must have acted at least intentionally, if not maliciously. This, of course, can be proved by the acts themselves if they are so flagrant that intent can be readily inferred. See Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir. 1970) (gross and culpable negligence supplies intent). But no such intent can be demonstrated from the facts of this case. My Brothers freely admit that Agent Arwine did not act maliciously. This proves that Ms. Rodriguez was simply the unfortunate victim of a series of coincidences, none of which can be blamed on him.
But still the majority finds fault. They suggest Agent Arwine should have had the detective check his records further, despite his identification of Margaret Rodriguez as a beautician. They claim Agent Arwine should have been put on notice due to the fact that she had never been arrested by local authorities, although why someone involved in a gambling operation should invariably have a previous criminal record they do not say. And they find it odd that Agent Arwine phoned the listed *408 number of the beauty parlor, even though unlisted phones are commonly used in illegal gambling activities, and his call would undoubtedly have provided a tip-off had he phoned a number over which unlawful activity was carried on.
I cannot subscribe to this exercise in nitpicking. Agent Arwine made his identification and verified it in a totally reasonable manner. The facts which the majority isolates, when viewed in the totality of the circumstances, would not lead reasonable men to differ over whether Agent Arwine had acted with reasonable good faith toward Ms. Rodriguez. See Brubaker v. King, supra; Tritsis v. Backer, supra.
. 373 U.S. 647 , 83 S.Ct. 1441 , 10 L.Ed.2d 605 (1963).
. 373 U.S. at 651 , 83 S.Ct. at 1445 . Examples where the invitation to create federal common law has been refused include Nolan v. Meyer, supra, and Blaney v. Florida Nat’l Bank, 357 F.2d 27 (5th Cir. 1966).
. The majority admits that Agent Arwine has shown no malice. Relevant to this point is the First Circuit case of Madison v. Manter, 441 F.2d 537 (1st Cir. 1971). In Madison a state police officer was sued under section 1983 for negligence in seeking a search warrant on insufficient evidence. The court found that, as a matter of general law, police officers charged with improper prosecution must be shown to have been malicious. Pointing out that innocent individuals are protected by the review of a neutral magistrate, the court declined “to place upon policemen acting in good faith the risk of personal liability if that official makes a negligent mistake.” Id. at 539 .
. The most similar previous case found was Sopp v. Gehrlein, 232 F.Supp. 881 (facts), 236 F.Supp. 823 (W.D.Pa.1964). There federal agents assisted in the investigation of a sodomy case. Due to unusual circumstances, an innocent person was indicted for the crime. After charges were dropped against her, she sued all involved in the investigation including the federal agents. The court simply cited Wheeldin and stated, “That case is authority for the conclusion that on the face of the complaint no federal cause of action can be made out against [the federal agents].” Id. at 825.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9462955. Public record. Not legal advice.