Petition — Turner v. Maryland

IN THE ;

Supreme Court of the Anit

October Term, 1984

JULIAN EMMETT TURNER, III,

Petitioner,

Vv.

STATE OF MARYLAND, PRINCE GEORGE’S COUNTY,

OFFICE OF STATE’S ATTORNEY, ARTHUR A.

MARSHALL, JR., ROGER MILLSTEAD, MARYLAND

STATE POLICE, COL. THOMAS SMITH,

VERNON HERRON, CHARLES HUTCHINS

and DOES I through X inclusive,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JULIAN EMMETT TURNER, III

2440 Vancouver Avenue

San Diego, California 92104

Telephone: (619) 281-1254

whe

QUESTIONS PRESENTED

Is non-residency a suspect classification prohibited by the Fourteenth

Amendment?

Is omission of the duty to provide equal protection of the laws

actionable under the Civil Rights Acts?

Is 42 U.S.C. § 13981 restricted to violations predicated upon a “‘racial

anamous’’?

Is a plea-in-abatement based upon judicial immunity available to pro-

secutors who have breached their duty to uphold the law?

Is judicial immunity a shield for violations of the Fourteenth Amend-

ment?

Does the Eleventh Amendment shield states from Civil Rights Acts

suits stemming from the Fourteenth Amendment?

-ii-

TOPICAL INDEX

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CONSTITUTIONAL AND STATUTORY PROVISIONS

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REASONS FOR GRANTING THE WRIT

I. NON-RESIDENCY IS A SUSPECT CLASSIFI-

CATION CREATING A PROTECTED CLASS

UNDER THE FOURTEENTH AMENDMENT ....

Il. THE FOURTEENTH AMENDMENT IMPOSES

UPON THE STATES THE DUTY TO PROVIDE

EQUAL PROTECTION OF THE LAWS

OMISSION OF WHICH IS ACTIONABLE

UNDER THE CIVIL RIGHTS ACTS.............

Ill. 42 U.S.C. 1981 HAS A DUAL BASIS OF

AUTHORITY UNDER BOTH THE THIRTEENTH

AND FOURTEENTH AMENDMENT AND

WHEN PROCEEDINGS ARE BROUGHT

AGAINST THE STATE THE FOURTEENTH

AMENDMENT PROVIDES AUTHORITY NOT

LIMITED BY THE REQUIREMENT OF A

RACIAL ANAMOUS OF THE

IV. A PLEA-IN-ABATEMENT PREDICATED UPON

THE EXTENSION OF JUDICIAL IMMUNITY

TO PROSECUTORS IS NOT AVAILABLE TO

PROSECUTORS WHO HAVE BREACHED

THEIR DUTY TO UPHOLD THE LAW ..........

Page

TOPICAL INDEX (Continued)

V. JUDICIAL IMMUNITY DOES NOT SHIELD

VIOLATICNS OF CIVIL RIGHTS ACTS UNDER

THE FOURTEENTH AMENDMENT ............

VI. STATES ARE PERSONS SUBJECT TO SUIT

UNDER THE CIVIL RIGHTS ACTS ENFORCING

THE FOURTEENTH AMENDMENT WHICH IS

NOT BARRED BY THE ELEVENTH

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CRUE Uioiccvccscccsunectcdsdtepecrdcduancedes

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Page

11

13

-iv-

TABLE OF AUTHORITIES

CASES

Cooper v. Molko, 512 F.Supp. 563

as SE CE ca ih vecesbevudesdncbcouude’s

Edelman v. Jordan, 415 U.S. 651 (1973) ......... 26 ceeeees

Ex parte Virginia, 100 U.S. 339 (1880) ..............0005.

Fitzpatrick v. Bitzer, 427 U.S. 445 (1975) ..........650005s

Hutto v. Finney, 437 U.S. 678 (1979)... 2.2... ee eee

Imbler v. Pachtman, 424 U.S. 409 (1976) ............60055

Memoria! Hospital v. Maricopa County,

ey EEN, 5 vines peanenedeeceankendsede

Monell v. New York City Dept. of Social Services,

in Sua saebes Chis scesteseediens

Quern v. Jordan, 440 U.S. 332 (1979) ....... ccc cece ee eees

Rizzo v. Goode, 423 U.S. 362 (1975) ............ceeeeeees

Runyon v. McCrary, 427 U.S. 160 (1976) .... 2... 6.6.60 ues

Shapiro v. Thompson, 394 U.S. 618 (1968)... .............

Smith v. Ross, 482 F.2d 33 (6th Cir. 1973)... . 2.2.6.6 .0005.

United States Ex Rel. Birnham v. Dolan,

452 F.2d 1078 (3d Cir. 1971) ... 2.2... ee eee ee ee eee

-V-

TABLE OF AUTHORITIES (Continued)

CONSTITUTIONS

United States Constitution,

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i ios ven be nteseseu seesaeses

ne sk esenense

os os i ee nee bene hee

STATUTES

Page

2,4,5

i,2,9

No.

IN THE

Supreme Court of the United States

October Term, 1984

JULIAN EMMETT TURNER, III,

Petitioner,

v.

STATE OF MARYLAND, PRINCE GEORGE’S COUNTY,

OFFICE OF STATE’S ATTORNEY, ARTHUR A.

MARSHALL, JR., ROGER MILLSTEAD, MARYLAND

STATE POLICE, COL. THOM/.S SMITH,

VERNON HERRON, CHARLES HUTCHINS

and DOES I through X inclusive,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioner respectfully prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of Appeals for the

Fourth Circuit entered on January 16, 1984.

OPINIONS BELOW

On January 16, 1984 petitioner’s petition for rehearing was denied by

the United States Court of Appeais at the direction of Judge Sprouse for

a panel consisting of Judge Russel, Judge Widener, and Judge Sprouse.

oBe

Petitioner’s original appeal was denied by the United States Court of Ap-

peals on December 8, 1983 before the same panel with no published

opinion. The original Motion to Dismiss issued on August 24, 1983 by

the United States District Court for the District of Maryland at

Baltimore. Judge Alexander Harvey, II, issued a memorandum and

order identified by Civil No. H-83-1501. It was adopted by the Court of

Appeals per curiam. It is reprinted in Appendix A located at p. A-2 of

this petition.

JURISDICTION

The jurisdiction of the Supreme Court of the United States of America

is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves Article III, section 2, Article IV section 2, the Sixth

Amendment, the Eleventh Amendment, the Thirteenth Amendment and

the Fourteenth Amendment of the United States Constitution which are

set out at length in apperdix ‘‘B’’ at pp. B-1 through B-2 of this petition.

This case involves Act of Feb. 25, 1871, sec. 2, 16 Stat. 431, 42 U.S.C.

1981, 42 U.S.C. 1982, 42 U.S.C. 1983, 42 U.S.C. 1985, 42 U.S.C. 1986,

and 42 U.S.C. 1988, which is set out at length in appendix ‘‘B’’ at pp.

B-3 through B-6 of this petition.

STATEMENT OF THE CASE

In October of 1977, in the City of District Heights, Maryland, the peti-

tioner was stabbed with a knife by his father causing the petitioner

serious bodily harm. Petitioner lost his spleen. Petitioner’s kidney was

severed. Petitioner’s peritoneum was punctured and his intestinal track

was cut. Petitioner’s torso was permanently disfigured. Said act was a

violation of the laws of the State of Maryland including, but not limited

to attempted murder, assault with a deadly weapon, battery, and

mayhem.

The State of Maryland issued a warrant for the arrest of petitioner’s

father on the charge of attempted murder. In 1982, petitioner’s father

xe

was arrested on the Maryland warrant in the State of Georgia. Peti-

tioner’s father was arrested after he confessed his crime to a citizen of

Georgia. Said citizen informed Georgia officials of petitioner’s father’s

confession leading to the arrest.

The State of Georgia notified the State of Maryland of the arrest. The

State of Georgia stood ready, willing, and able to extradite petitioner’s

father to the State of Maryland. On March 2, 1982, the State of Georgia

was forced to release petitioner’s father because the extradition period

had passed without the State of Maryland requesting extradition.

The defendants knew that the charges against petitioner’s father were

true because of petitioner’s father’s confession, physical evidence in their

possession, their own investigative reports, inferences from the flight of

petitioenr’s father from justice, medical records, statements from peti-

tioner’s mother who still lived in Maryland, and finally from petitioner’s

statements. In particular, the defendants had obtained a written declara-

tion from petitioner made while in intensive care in case of petitioner’s

death. Defendants knowledge is evidenced by the continued issuance

until this day of the warrant for attempted murder and their use of a

plea-in-abatement which admits the truth of petitioner’s allegations.

During the period of extradition the petitioner was informed by

Officer Vernon Herron of the Maryland State Police, acting as an agent

of the Maryland State’s Attorney, of the capture of his father in Georgia.

Petitioner subsequently agreed to return to Maryland in order to testify.

Officer Herron agreed to keep petitioner appraised of the progress of the

case.

Officer Vernon Herron subsequently reported back to his superiors.

These superiors included one Roger Millstead, Assistant District

Attorney for the State of Maryland. Petitioner alleged that these defend-

ants discussed the case and agreed amongst themselves not to pursue the

extradition of petitioner’s father because the victim no longer lived in the

State of Maryland. The petitioner was not informed of this decision or

any further developments by the State of Maryland or its agents.

On June 15, 1982, Officer Charles Hutchins of the Maryland State

Police informed the administrator of petitioner’s grandmother’s estate

located in Richmond, Virginia, that petitioner’s father had been releacsd

on March 2, 1982 and that his whereabouts were unknown. Officer

Hutchins informed said administrator that petitioner’s father had been

wll

released because the victim no longer lived in the State of Maryland.

Officer Hutchins informed said administrator that the warrant of at-

tempted murder for petitioner’s father remained outstanding and that if

petitioner’s father returned to the State of Maryland, he would be pro-

secuted. The administrator used this information to attempt to deter the

petitioner from returning to the Commonwealth of Virginia and

demanding an accounting of the esiate.

REASONS FOR GRANTING THE WRIT

I

NON-RESIDENCY IS A SUSPECT CLASSIFICATION

CREATING A PROTECTED CLASS UNDER

THE FOURTEENTH AMENDMENT

The Constitution, while preserving sovereignty of states over criminal

acts committed within state boundaries, establishes the class of non-

residents by requiring states to provide equal protection of the laws for

non-residents. This principle is embedded in Article IV, section 2 of the

Constitution stating the following:

**The citizens of each state shall be entitled to all

privileges and immunities of the several states.’’

The Fourteenth Amendment incorporates Article IV section 2 by

reference stating that ‘‘[NJo State shall make or enforce any law which

shall abridge the privileges or immunities of the citizens of the United

States, ...””

The Supreme Court has twice acknowledged non-residency as a

suspect classification entitling those within that class to a redress of

grievances under the Civil Rights Acts and the Fourteenth Amendment in

the leading cases of Shapiro v. Thompson, 394 U.S. 618 (1968) and

Memorial Hospital v. Maricopa County, 415 U.S. 250 (1973). Petitioner

submits that the lower court erred by ruling that petitioner's allegations

of discrimination based upon non-residency was not a class-based in-

vidiously discriminatory anamous within the purview of the Fourteenth

Amendment.

~42"S

«Qa

Il

THE FOURTEENTH AMENDMENT IMPOSES UPON

THE STATES THE DUTY TO PROVIDE

EQUAL PROTECTION OF THE LAWS OMISSION

OF WHICH IS ACTIONABLE UNDER THE

CIVIL RIGHTS ACTS

The first section of the Fourteenth Amendment imposes upon the

states the duty to provide equal protection of the laws by declaring that,

**(N]o State shall, . . . deny to any person within its jurisdiction the equal

protection of the laws.’’ The use of the word ‘‘slall’’ indicates that

equal protection of the laws is a mandatory duty.

Article IV, section 2 of the Constitution, the ‘“‘privileges and im-

munities’’ clause cited in the Fourteenth Amendment, contains an ex-

tradition clause for its enforcement. The extradition clause states:

**A Person charged in any State with Treason, Felony or

other Crime, who shall flee from Justice, and be found in

another State, shall on Demand of the executive Authori-

ty of the State from which he fled, be delivered up, to be

removed to the state having Jurisdiction of the Crime.’’

The Fourteenth Amendment incorporates Article IV, section 2, the

**privileges and immunities’’ clause, by reference stating that ‘‘[N]Jo State

shall . . . abridge the privileges and immunities of citizens of the United

States, ...’’. Presumably the enforcement provision of extradition con-

tained in Article IV, section 2 is also incorporated by reference.

The Civil Rights Acts define the scope of the Fourteenth Amendment

duties imposed upon the states. 42 U.S.C. 1981 imposes u,»on the states

the duty to protect the right of a person to give evidence. 42 U.S.C. 1982

imposes the duty of requiring the states to protect the right to inherit. 42

U.S.C. 1983 prohibits states from usages and customs impeding the

equal protection of laws. 42 U.S.C. 1985 prohibits states from obstruc-

ting justice or combining into a conspiracy to prevent equal protection of

the laws. 42 U.S.C. 1986 requires states to use due diligence to prevent

negligent deprivation of the equal protection of the laws. 42 U.S.C. 1988

provides for costs and attorney's fee in a Civil Rights Act suit.

ts

By failing to extradite, the State of Maryland prevented petitioner

from giving evidence. The State of Maryland has interfered with the ac-

counting of petitioner’s grandmother’s estate. The State of Maryland

has adopted the custom and usage of refusing to extradite criminals bas-

ed upon the non-residency of the victim. The State of Maryland and its

agents have conspired together to obstruct justice by refusing to extradite

an attempted murderer. The State of Maryland has failed to be diligent

in providing equal protection of the laws.

Acts of omission as well as commission are actionable under the Four-

teenth Amendment and the Civil Rights Acts. In Rizzo v. Goode, 423

U.S. 362 (1975) at 384-85 the court stated:

**It is abundantly clear that one reason the legislation was

passed was to afford a federal right in federal courts

because by reason of prejudice, passion, NEGLECT, in-

tolerance or otherwise, state laws might not be enforced

and the claims of citizens to the enjoyment of rights,

privileges, and immunities guaranteed by the Fourteenth

Amendment might be denied by state agencies.’’

Most recently courts have upheld actions for omissions to act in

Cooper v. Molko, 512 F.Supp. 563 (D.C., N.D.Cal. i981) and Smith v.

Ross, 482 F.2d 33 (6th Cir. 1973).

In the instant case, the lower court denied a right of action for

‘abstract violation of a constitutional right’’ citing United States Ex.

Rel. Birnham v. Dolan, 452 F.2d 1078 (3d Cir. 1971). This case was in-

appropriately applied. In Birnham, id., the word ‘‘abstract’’ was used to

describe a violation of constitutional right preemptively cured. In that

case, the denial of an attorney at a line-up was cured by exclusion of the

identification at trial leading to acquital. Leaving a victim at risk by

allowing an attempted murderer at bay is hardly an abstract violation of

constitutional law. Indeed, the actions of the State of Maryland have not

only placed an attempted murderer at large, but may have in turn

violated the criminal’s Sixth Amendment right to a speedy trial barring

subsequent conviction.

S -

il

42 U.S.C, 1981 HAS A DUAL BASIS OF AUTHORITY

UNDER BOTH THE THIRTEENTH AND FOURTEENTH

AMENDMENT AND WHEN PROCEEDINGS ARE

BROUGHT AGAINST THE STATE THE FOURTEENTH

AMENDMENT PROVIDES AUTHORITY NOT LIMITED

BY THE REQUIREMENT OF A RACIAL ANAMOUS

OF THE THIRTEENTH AMENDMENT

42 U.S.C. 1981 has « dual basis of authority under both the Thirteenth

and Fourteenth Amendment. When proceeding against States, the

statute is powered by the Fuu.teenth Amendment, not the Thirteenth

Amendment.

The lower court cited Runyon v. McCrary, 427 U.S. 160 (1976) as

authority for limiting 42 U.S.C. 1981 actions to instances involving a

racial anamous. Runyon, id., was misapplied to the present case. In Ru-

nyon, id., the courts allowed an action against private schools under the

theory that segregation was a ‘‘badge of slavcry’’ outlawed by the Thir-

teenth Amendment. The instant action is against the State for violating

equal protection of the laws requirement of the Fourteenth Amendment.

IV

A PLEA-IN-ABATEMENT PREDICATED UPON

THE EXTENSION OF JUDICIAL IMMUNITY

TO PROSECUTORS IS NOT AVAILABLE TO

PROSECUTORS WHO HAVE BREACHED THEIR

DUTY TO UPHOLD THE LAW

Prosecutors are under a duty to uphold the law. Jmbler v. Pachtman,

424 U.S. 409 (1976), cited by the lower court, was concerned only with

the chilling effect of suits for malicious prosecution and defamation

might have upon a prosecutor’s discretion in carrying out the duty to

uphold the law. It did not grant immunity for breach of the very duty it

was to protect.

In Imbiler, id., the prosecution tried and convicted a member of a gang

for several crimes including one which occurred before Imbler had joined

the gang. The prosecutor discovered this error in the course of justice

only after conviction and promptly moved to correct it. Afterwards,

Imbler complained that his right to a fair trial had been violated because

the prosecution had relied upon a witness who had lied about his

economic and social standing in the community. However, these were

collateral matters not subject to impeachment. Consequently, in that

case the prosecutions reliance upon the witness was justified.

The prosecutors for the State of Maryland however, are being sued for

breach of the very duty the immunity granted in /mbier, id., sought to

protect. They breached their duty by failing to extradite an attempted

murderer. The shield of judicial immunity does not extend to acts which

are in themselves a breach of the law (non-feasance of office) and the

Constitution.

Vv

JUDICIAL IMMUNITY DOES NOT SHIELD

VIOLATIONS OF CIVIL RIGHTS ACTS UNDER

THE FOURTEENTH AMENDMENT

There is no judicial immunity for acts violating the Civil Rights Acts

and the Fourteenth Amendment. Indeed, even judges may be held ac-

countable for violating the Civil Rights Acts. Ex parte Virginia, 100 U.S.

339 (1880). Modernly, the Supreme Court has upheld Ex parte Virginia,

id., in Fitzpatrick v. Bitzer, 427 U.S. 445 (1975).

VI

STATES ARE PERSONS SUBJECT TO SUIT UNDER

THE CIVIL RIGHTS ACTS ENFORCING THE

FOURTEENTH AMENDMENT WHICH IS NOT

BARRED BY THE ELEVENTH AMENDMENT

The instant suit was invited by Mr. Justice Brennan in Hutto v. Fin-

ney, 437 U.S. 678 (1979) at p. 703 as follows:

**Given our holding in Monell, the essential premise of

our Edelman holding -- that no statute involved in

Edelman authorized suit against ‘a class of defendants

which literally includes States,’ 415 U.S., at 672 -- would

-9-

clearly appear to be no longer true. Moreover, given Fitz-

patrick’s holding that Congress has plenary power to

make States liable in damages when it acts pursuant to § 5

of the Fourteenth Amendment, it is surely at least an

open question whether § 1983 properly construed does

not make the States liable for relief of all kinds, not-

withstanding the Eleventh Amendment. Whether this is

in fact so, must of course await consideration in an ap-

propriate case.”’

The lower court relied upon obiter dictum in Quern v. Jordan, 440

U.S. 332 (1979) as standing for the proposition that states were not per-

sons subject to suit under the Civil Rights Acts enforcing the Fourteenth

Amendment and as such were immune from suits for damages under the

Eleventh Amendment. However, Quern, id concerned only the ques-

tion of whether expenses incurred in complying with a prospective in-

junction ordering notices to be sent out were merely incidental to the

court order and not damages per se. This was consistent with the ruling

in Edelman v. Jordan, 415 U.S. 651 (1974) which existed prior to Fitz-

patrick, supra, and Monell v. New York City Dept. of Social Services,

436 U.S. 658 (1978). The obiter dicta addressed issues not in controver-

sy; thus it was beyond the power of the courts under Article III, section 2

which limits the court’s power to ‘‘cases’’ and ‘‘controversies.’’ Mr.

Justice Brennan’s concurring opinion questions portions of Mr. Justice

Rehnquist’s opinion as follows:

“*It is deeply disturbing, however that the Court should

engage in today’s gratuitous departure from the

customary judicial practice and reach out to decide an

issue unnecessary to its holding. The Court today cor-

rectly rules that the explanatory notice approved by the

Courts of Appeal below is ‘properly viewed as ancillary to

. . . prospective relief.’ This is sufficient to sustain the

Court’s holding that such notice is not barred by the

Eleventh Amendment. But the Court goes on to con-

clude in what is patently dicta, that a State is not a ‘per-

son’ for purposes of 42 U.S.C. 1981, Rev. Stat. 1979.”’

Quern v. Jordan, 440 U.S. at 350.

The Eleventh Amendment was passed in 1798 and prevented the con-

struction of federal power from extending suits existing at the time to

allow actions by citizens against states. It did not bar suits based upon

-10-

subsequently enacted constitutional amendments. The court in Fifz-

patrick v. Bitzer, supra, acknowledged the power of the federal govern-

ment to inact legislation allowing suits by individual citizens against

states under the Fourteenth Amendment.

In Monell, supra, the court determined that the Civil Rights Acts use

of the word ‘‘person’’ applied to states. Here the prior misconstruction

of these statutes as not applying to states was corrected by the discovery

of the Dictionary Act. The Dictionary Act, Act of Feb. 25, 1871, sec. 2,

16 Stat. 431 stated that, ‘‘in all acts hereafter passed . . . the word ‘per-

son’ may extend and be applied to bodies politic and corporate. ...’’ As

since the Dictionary Act and the Civil Rights Acts were passed under the

auspices of the Fourteenth Amendment which applies only to state ac-

tion, the only logical conclusion is that ‘per.ons’ under the Civil Rights

Act referred to the ‘‘persons’’ through which the state exists and exerts

its authority.

The petitioner asserts that the Civil Rights Acts are sufficiently specific

as to allow suits against the state by citizens. The history of allowing

equitable relief against the states bears this out. Petitioner has conse-

quently sued for both monetary damages and for equitable relief in the

form of a writ of mandamus ordering the State of Maryland to bring

charges against the States Attor iey for non-feasance of office.

The true distinction between the Edelman - Quern and tne Fitzpatrick -

Monell lines of cases lics in the nature of the programs administered by

the states in those cases. In Edelman and Quern the states were ad-

ministering welfare programs which in large part are really federal

revenue sharing programs only administered by the state. Fairness dic-

tates that back payments for welfare sould come from their largely

federal source. However, administrative costs should be born by the

states who by accepting these funds have incurred a corresponding duty

to administer them fairly. This would explain why expenditures from

state treasuries could be ordered as ancillary relief to equitable orders of

administration such as ordering the state to pay for notices informing

recipients how to correct past errors in determining eligibility.

On the other hand, the Fitzpatrick - Monell line of cases dealt with

programs which were wholly operated and financed by the states. The

state employee retirement system in Fitzpatrick was a state program to

which the equal protection of the Fourteenth Amendment applied.

Similarly, state employees forced into pregnancy kc ave concerns a wholly

state matter to which the Fourteenth Amendment applied. The critical

distinction lies in the fact that the Fourteenth Amendment addresses

state actions and is not addressed to the federal government. The

criminal law of Maryland is a state matter to which the Fourteenth

Amendment requirement of equal protection of the law attaches.

Therefore, the State of Maryland can be held liable under Civil Rights

Acts.

CONCLUSION

WHEREFORE, petitioner respectfully prays that a writ of certiorari

be granted.

Respectfully submitted,

JULIAN EMMETT TURNER, III

Petitioner

A-l

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JULIAN EMMETT TURNER, III * CIVIL ACTION

NO. H-83-i50i

Vv. .

STATE OF MARYLAND; PRINCE GEORGE’S *

COUNTY; OFFICE OF STATE’S ATTORNEY,

ARTHUR A. MARSHALL, JR.; ROGER °

MILLSTEAD; MARYLAND STATE POLICE;

COL. THOMAS SMITH; VERNON HERRON;

CHARLES HUTCHINS; DOES I THROUGH

X INCLUSIVE .

* * * e * * * * aa a * * 7 7 > * > 7 * * *

JUDGMENT

In accordance with the Memorandum and Order dated August 24,

1983 filed in the abcve entitled case, it is

ORDERED and ADJUDGED:

1. That judgment be and the same hereby is entered in favor of the

defendants, with costs.

Dated at Baltimore, Maryland this 25th day of August, 1983.

PAUL k. SCHLITZ

Clerk

By: plepehetd. Q. hueharl

A-2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

JULIAN EMMETT TURNER, III * CIVIL NO. H-83-1501

Plaintiff .

v. *

STATE OF MARYLAND *

Defendant .

* + . * . * .

MEMORANDUM AND ORDER

Having duly paid a filing fee, Julian Emmett Turner, III, plaintiff, has

filed a pro se civil action in this Court. In his 10-page typed complaint,

plaintiff has named as defendants (i) State of Maryland; (2) Prince

George’s County; (3) the Prince George’s County Office of State’s At-

torney; (4) Arthur A. Marshall (the State’s Attorney of Prince George’s

County); (5) Roger Millstead (an Assistant State’s Attorney for Prince

George’s County); (6) the Maryland State Police; (7) Colonel Thomas

Smith (Superintendent of the Maryland State Police); (8) Officer Vernon

Herron (Maryland State Police); and (9) Lt. Charles Hutchins (Maryland

State Police). Plaintiff has also sought to sue various other unnamed

persons claimed to have made decisions or taken actions relating tc the

matters in suit. Suit has been brought under 42 U.S.C. £3 1981, 1983,

1985, 1986 and 1988. Plaintiff asserts that he has brought this action to

redress a deprivation of the equal protection of the laws by the State of

Maryland, and a denial by the State of Maryland of rights, privileges and

immunities to which its citizens are entitled.

Plaintiff alleges that he was stabbed with a knife by his father, Julian

Emmett Turner, in October of 1977, causing him serious bodily injuries.

He asserts that defendants issued a warrant for the arrest of his father on

charges of attempted murder and that his father was subsequently ar-

rested in Georgia on that warrant. According to plaintiff, the State of

Georgia was ready and willing to extradite plaintiff's father to the State

of Maryland, but defendants decided not to pursue the extradition of

plaintiff's father because plaintiff had moved to California. It is further

alleged that on March 2, 1982, plaintiff’s father was released by the State

A-3

of Georgia because the waiting period for extradition had expired.

According to plaintiff the warrant remains outstanding, and if plaintiff's

father returned to the State of Maryland and posed a threat to Maryland

citizens, the State of Maryland would prosecute his father. Plaintiff

complains that defendants Hutchins and Herron did not inform him of

the failure of the State of Maryland to extradite his father. Plaintiff

asserts that the release of his father has left him vulnerable to future at-

tack and has caused him great emotional stress and humiliation. As

relief, plaintiff seeks $1,000,000 in damages from all defendants jointly

and severally, $50,000 punitive damages from defendant Millstead and

from others responsible for the decision not to extradite his father, at-

torneys’ fees and an injunction ordering the State of Maryland to bring

charges against defendant Millstead and others responsible for the

deprivation of plaintiff’s civil rights.

On behalf of the defendants, the Attorney General of the State of

Maryland has filed various motions to dismiss, together with supporting

memoranda of law. Plaintiff has now filed a lengthy opposition to these

pending motions to dismiss, and has attached to this opposition excerpts

from cases relied upon by him. Following a review of the pleadings, mo-

tions and memoranda, this Court concludes that no hearing is necessary

for a decision on the pending motions. See Local Rule 6. For the

reasons stated herein, all pending motions to dismiss will be granted.

From a review of the allegations of the complaint, this Court con-

cludes that plaintiff has failed to state a claim upon which relief can be

granted under any of the federal civil rights statutes cited by him. The

complaint is therefore subject to dismissal pursuant to Rule 12(b)(6),

F.R.Civ.P.

Essentially, plaintiff contends that his constitutional rights have been

infringed because the individual responsible for committing a crime

against his person was not prosecuted by the State of Maryland. This

Court knows of no case holding that a citizen has a contstitutional [sic]

right to have another citizen prosecuted for a crime which has been com-

mitted. Although he has cited many other cases in his opposition to the

pending motions to dismiss, plaintiff has not cited any case holding that

facts of the sort involved in this case would entitle him to the relief he has

sought from the State of Maryland and various Maryland officials.

Even if this Court were to assume that plaintiff has properly alleged

the violation of a constitutional right personal to him, the complaint

A-4

does not indicate that plaintiff has suffered damages as a result of the

failure of the defendants to act. An abstract violation of a constitutional

right which has no harmful consequences to the plaintiff as an individual

does not entitle the plaintiff to money damages under 42 U.S.C. § 1983.

United States Ex Rel. Birnbaum v. Dolan, 452 F.2d 1078 (3d Cir. 1971).

Moreover, a State prosecutor has absolute immunity from liability for

damages allegedly flowing from acts performed by discharging his of-

ficial duties. Jmbler v. Pachtman, 424 U.S. 409 (1976). As the Supreme

Court pointed out in its opinion in the Jmbler case, harassment of a pro-

secutor by unfounded litigation would cause a deflection of the pro-

secutor’s energies from his public duties and the possibility that he would

shade his decisions instead of exercising the independence of judgment

required by his public trust. /d. at 423.

In the Jmbler case, a State prosecuting attorney was sued because he

had instituted criminal proceedings against the plaintiff. In this case,

piaintiff seeks to recover from a State prosecutor and other state officials

because a prosecution has not been brought against an individual who

allegedly committed a criminal act against the plaintiff. If as /mbler

held, a prosecutor is absolutely immune from civil liability for instituting

a criminal prosecution, @ fortiori, he is similarly immune from liability

for failing to file criminal charges. Were a prosecutor susceptible of suit

for failing to bring criminal charges against a citizen, he might feel com-

pelled to institute a criminal action even though the facts would not sup-

port the bringing of charges, merely to protect himself from civil liabili-

ty. As the Supreme Court pointed out in /Jmbier, the broader public in-

terest would thus be disserved because permitting such a suit would pre-

vent the vigorous and fearless performance of the prosecutor’s duty

essential to the proper functioning of the criminal justice system. /d. at

427-428.

For various other reasons, this action cannot be maintained under any

of the federal statutes relied upon by plaintiff. To state a cause of action

under § 1961, a plaintiff must allege a racially discriminatory purpose.

Runyon v. McCrary, 427 U.S. 160 (1976). Under the Eleventh Amend-

ment, the State of Maryland is immune from suits filed by private per-

sons seeking to impose liability for damges [sic] upon the State. Quern v.

Jordan, 440 U.S. 332 (1979). Under Maryland law, State Police officers

are not authorized to institute extradition proceedings or to commence a

criminal prosecution. It is the State's Attoiney for the County who is

empowered to apply to the Governor for the return of an accused in-

dividual held in another state. See Article 41, § 37, Ann. Code of Md.

A-5

For the reasons stated hereinabove, a State prosecutor is immune from

liability to one citizen for failure to extradite another citizen being held in

another state.

Plaintiff has likewise failed to state proper claims under §§ 1985, 1986

and 1988. He has alleged no facts indicating that defendants were

motivated by a racial or other class-based invidiously discriminatory

anamous with respect to their acts or omissions. See Griffin v.

Breckinridge, 403 U.S. 88 (1971). Section 1986 merely provides a remedy

for misprision of a violation of § 1985, and § 1988 merely permits the

recovery of attorneys’ fees by a prevailing party.

In his opposition to the pending motions, plaintiff has included a

lengthy discussion of the historical background of § 1981. However, he

has not cited any case upholding the right of an individual to recover

damages for violations of any of the statutes cited by him under facts

similar to those present in this case. This Court accordingly concludes

that plaintiff has not been denied the equal protection of the laws, nor

have his privileges and im nunities been infringed by the defendants or

any of them.

For the reasons stated, it is this 24th day of August, 1983, by the

United States District Court for the District of Maryland,

ORDERED:

1. That defendants’ motions to dismiss be and the same are hereby

granted;

2. That judgment be and the same is hereby entered in favor of

the defendants with costs.

=<

S AS

NX>

= UNITED STATES COURT OF APPEALS

Ry FOR THE FOURTH CIRCUIT

Q

SS

No. 83—1924

Julian Emmett Turner, III,

Appellant,

v.

State of Maryland; Prince

George’s County; Office of

State’s Attorney; Arthur A.

Marshall, Jr.; Roger Millstead;

Maryland State Police; Col.

Thomas Smith; Vernon Herron;

Charles Hutchins, and Does I

through X, inclusive,

Appellees.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Alexander Harvey, II, District Judge. (C/S

No. H-83-1501.)

Submitted: October 31, 1983 Decided: December 8, 1983

Before RUSSELL, WIDENER, and SPROUSE, Circuit Judges.

A-7

(Julian Emmett Turner, III, Appellant Pro Se. James J. Doyle, III,

Assistant Counsel, Maryland State Police, for Appellees Maryland State

Police, Herron, and Hutchins; Stephen H. Sachs, Attorney General, and

Gertrude C. Bartel, Assistant Attorney General, for Appellees State of

Maryland, Prince George’s County, State’s Attorney’s Office, Marshall,

and Millstead.)

PER CURIAM:

A review of the record and the district court’s opinion discloses that

this appeal f.om its order denying relief under 42 U.S.C. § 1983 is

without merit. Because the dispositive issues recently have been decided

authoritatively, we dispense with oral argument and affirm the judgment

below on the reasoning of the district court. Turner v. State of

Maryland, C/A No. H-83-150i (D. Md., Aug. 25, 1983).

AFFIRMED.

A-8

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT F | a E D

No. 83-1924 JAN 16 1984

U. S. Court of Appeals

Julian Emmett Turner, III, Fourth Circuit

Appellant,

versus

State of Maryland, et al,

Appellees.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. Alexander Harvey, II, District Judge

Upon consideration of the appellant’s pro se petition for rehearing,

IT IS ORDERED that the petition for rehearing is DENIED.

Entered at the direction of Judge Sprouse for a panel consisting of

Judge Russell, Judge Widener and Judge Sprouse.

For the Court,

/s/ William K. Slate, Il

CLERK

: .

jae

At Bass

B-1

CONSTITUTIONAL PROVISIONS

ARTICLE Ill.—THE JUDICIARY

Section 2. The judicial Power shall extend to all Cases, in Law and

Equity, arising under this Constitution, the Laws of the United States,

and Treaties made, or which shall be made, under tiieir Authority;—to

all Cases affecting Ambassadors, other pubiic Ministers and

Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Con-

troversies to which the United States shall be a Party; —to Controversies

between two or more States;—between a Stte and Citizens of another

State;—between Citizens of different States,—between C'tizens of the

same State claiming Lands under Grants of different Stat. ;. .nd between

a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Con-

suls, and those in which a State shall be Party, the supreme Court shall

have original Jurisdiction. In all the other Cases before mentioned, the

supreme Court shall have appellate Jurisdiction, both as to Law and

Fact, with such Exceptions, and under such Regulations as the Congress

shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by

Jury; and such Trial shall be held in the State where the said Crimes shall

have been committed; but when not committed within any State, the

Trial shall be at such Place or Places as the Congress may by Law have

directed.

ARTICLE IV

Section 2, Clause 1. Privileges and Immunities

Section 2. The Citizens of each State shall be entitled to all Privileges

and Immunities of Citizens in the several States.

Section 2, Clause 2. Extradition

A person charged in any State with Treason, Felony, or other Crime,

who shall flee from Justice, and be found in another State, shall on De-

mand of the executive Authority of the State from which he fled, be

delivered up, to be removed to the State having Jurisdiction of the

Crime.

B-2

AMENDMENT VI—JURY TRIAL FOR CRIMES, AND

PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and district

wherein the crime shall have been committed, which district shall have

been previously ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to

have the Assistance of Counsel for his defence.

AMENDMENT XI—SUITS AGAINST STATES

The Judicial power of the United States shall not be construed to ex-

tend to any suit in law or equity, commenced or prosecuted against one

of the United States by Citizens of another State, or by Citizens or Sub-

jects of any Foreign State.

AMENDMENT XIII—SLAVERY ABOLISHED

Section 1. Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have been duly convicted,

shall exist within the United States, or any place subject to their jurisdic-

tion.

Section 2. Congress shall have power to enforce this article by appro-

priate legislation.

AMENDMENT XIV—CITIZENS IP; PRIVILEGES AND IMMUNI-

TIES; DUE PROCESS; EQUAL PROTECTION; APPORTIO! '-

MENT OF REPRESENTATION; DISQUALIFICATION Of

OFFICERS; PUBLIC DEBT; ENFORCEMENT

Section 1. All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United States and of

the State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its jurisdiction

the equal protecticn of the laws.

B-3

Section 5. The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.

STATUTES

§ 1981. Equal rights under the law

All persons within the jurisdiction of the United States shall have the

same right in every State and Territory to make and enforce contracts, to

sue, be parties, give evidence, and to the full and equal benefit of ail laws

and proceedings for the security of persons and property as is enjoyed by

white citizens, and shall be subject to like punishment, pains, penalties,

taxes, licenses, and exactions of every kind, and to no other.

§ 1982. Property rights of citizens

All citizens of the United States shall have the same right, in every

State and Territory, as is enjoyed by white citizens thereof to inherit,

purchase, lease, sell, hold, and convey real and personal property.

§ 1983. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

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. For the purposes of this section,

any Act of Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Columbia.

§ 1985. Conspiracy to interfere with civil rights

Preventing officer from performing duties

(1) If two or more persons in any State or Territory conspire to pre-

vent, by force, intimidatin, or threat, any person from accepting or

B4

holding any office, trust, or place of confidence under the United States,

or from discharging any duties thereof; or to induce by like means any

officer of the United States to leave any State, district, or place, where

his duties as an officer are required to be performed, or to injure him in

his person or property on account of his lawful discharge of the duties of

his office, or while engaged in the lawful discharge thereof, or to injure

his property so as to molest, interrupt, hinder, or impede him in the

discharge of his official duties;

Obstructing justice; intimidating party, witness, or juror

(2) If two or more persons in any State or Territory conspire to deter,

by force, intimidation, or threat, any party or witness in any court of the

United States from attending such court, or from testifying to any matter

pending therein, freely, fully, and truthfully, or to injure such party or

witness in his person or property on account of his having so attended or

testified, or to influence the verdict, presentment, or indictment of any

grand or petit juror in any such court, or to injure such juror in his per-

son or property on account of any verdict, presentment, or indictment

lawfully assented to by him, or of his being or having been such juror; or

if two or more persons conspire for the purpose of impeding, hindering,

obstructing, or defeating, in any manner, the due course of justice in any

State or Territory, with intent to deny to any citizen the equal protection

of the laws, or to injure him or his property for lawfully enforcing, or at-

tempting to enforce, the right of any person, or class of persons, to the

equal protection of the laws;

Depriving persons of rights or privileges

(3) If two or more persons in any State or Territory conspire or go in

disguise on the highway or on the premises of another, 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; or for the purpose of preventing or hindering the con-

stituted authorities of any State cr Territory from giving or securing to

all persons within such State or Territory the equal protection of the

laws; or if two or more persons conspire to prevent by force, intimida-

tion, or threat, any citizen who is lawfully entitled to vote, from giving

his support or advocacy in a legal manner, toward or in favor of the elec-

tion of any lawfully qualified person as an elector for President or Vice

President, or as a Member of Congress of the United States; or to injure

any citizen in person or property on account of such support or ad-

vocacy; in any case of conspiracy set forth in this section, if one or more

B-5

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.

§ 1986. Action for neglect to prevent

Every person who, having knowledge that any of the wrongs conspired

to be done, and mentioned in sectin 1985 of this title, are about to be

committed, and having power to prevent or aid in preventing the com-

mission of the same, neglects or refuses so to do, if such wrongful act be

committed, shall be liable to the party injured, or his legal represen-

tatives, for ali damages caused by such wrongful act, which such person

by reasonable diligence could have prevented; and such damages may be

recovered in an action on the case; and any number of persons guilty of

such wrongful neglect or refusal may be joined as defendants in the ac-

tion; and if the death of any party be caused by any such wrongful act

and neglect, the legal representatives of the deceased shall have such ac-

tion therefor, and may recover not exceeding $5,000 damages therein, for

the benefit of the widow of the deceas<d, if there be one, and if there be

nc widow, then for the benefit of the next of kin of the deceased. But no

action under the provisions of this section shall be sustained which is not

commenced within one year after the cause of action wa accrued.

§ 1988. Proceedings in vindication of civil rights; attorney’s fees

The jurisdiction in civil and criminal matters conferred on the district

courts by the provisions of this Title, ana of Title ‘““CIVIL RIGHTS,”’

and of Title ‘““CRIMES,”’ for the preiecction of all persons in the United

States in their civil rights, and for their vindication, shall be exercised and

enforced in conformity with the laws of the United States, so far as such

laws are suitable to carry the same into effect; but in all cases where they

are not adapted to the object, or are deficient in the provisions necessary

to furnish suitable remedies and punish offenses against law, the com-

mon law, as modified and changed by the constitution and statutes of the

State wherein the court having jurisdiction of such civil or criminal cause

is held, so far as the same is not inconsistent with the Constitution and

laws of the United States, shall be extended to and govern the said courts

B-6

in the trial and disposition of the cause, and, if it is of a criminal nature,

in the infliction of punishment on the party found guilty. In any action

or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985,

and 1986 of this title, title IX of Public Law 92-318, or title VI of the

Civil Rights Act of 1964, the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable attorney’s fee

as part of the costs..

Act of Feb. 25, 1871, sec. 2, 16 Stat. 431

SEC. 2. And be it further enacted, That in all acts hereafter passed

words importing the singular number may extend and be applied to

several persons or things; words importing the plural number may in-

clude the singular; words importing the masculine gender may be applied

to females; the words ‘‘insane person’’ and ‘‘lunatic’’ shall include every

idiot, non-compos, lunatic, and insane person; and the word ‘‘person’’

may extend and be applied to bodies politic and corporate, and the ©

reference to any officer shall include any person authcrized by law to

perform the duties of such office, unless the context shows that such

words were intended tc be used in a more limited sense; and the word

“‘oath’’ shall include ‘‘affirmation’’ in cases where by law an affirmation

may be substituted for an oath, and in like cases the word ‘‘sworn”’ shall

include the word ‘‘affirmed.’’