Jane Fonda v. L. Patrick Gray, Etc., Morgan Guaranty Trust Company of New York and City National Bank, Defendants
707 F.2d 435
9th Cir.
1983
Check Treatment

*1 NELSON, Before CHOY INGRAM,* Judge. District

Judges, and the United Supreme Court of

- U.S.-, L.Ed.2d judgment of this having reversed having re-

court herein court,

manded the cause to this HEREBY

IT ORDERED IS court is reversed

judgment of the district to the district

and this cause is remanded conformity proceedings

court for further opinion

with the

this matter. that the motion

IT ALSO ORDERED IS Lines, Inc., Appellant Thurston Motor Lines, Truck Inc. be substi-

that Blackburn appellant, cause as is denied

tuted this to consideration of the prejudice district court on remand. by

motion * California, by designation. sitting Ingram, William A. The Honorable Judge District States District for the Northern *2 KENNEDY, and

Before ANDERSON PREGERSON, Judges. Circuit ANDERSON, Judge: J. BLAINE award of appeals Jane summa- Morgan ry judgment Guaranty in favor of City Trust and National Bank. Company was genu- that there a Ms. Fonda contends concerning the ine issue of fact existence of a between defendant banks conspiracy effect had the of violat- FBI which Fourth ing First and Amendment disagree. We

I. BACKGROUND Ms. On October Fonda com- past against menced or then this action officials, Government present United States Company Morgan Guaranty Trust of New Ange- Bank of City York National Los alleged wide-ranging complaint les. conspiracy suppress designed Fonda’s views, outspoken those particularly War and opposed to the Vietnam the Nixon Fonda’s claims were based Administration. Fourth, First, Fifth on the and Ninth Constitution; Amendments to 18 U.S.C. 2510-20; 1985(3), 42 U.S.C. §§ §§ 1986; and 47 U.S.C. § summary judg- moved for National ment the district court June granting May the motion in November. judge approved the trial a settle- McTernan, McTernan, Margolis, John T. ment Fonda and the between Epstein, I. Wein- Scope, Leonard Sacks month, Morgan defendants. That same Rosenbaum, Cal., glass, Angeles, Mark Los Guaranty’s summary judgment motion for Cal., Los of Southern ACLU Foundation granted. was Cal., Angeles, plaintiff-appellant. for conspiracy against claims respective Hill, Genson, Even, Hill, Crandall & John closely-related involve facts banks Cal., Wade, for Angeles, Los Nat. undisputed. which are In December largely Bank. Rohlf, vice-president Mr. an executive Benkard, Morgan telephone received a Morgan, Guaranty, Charles R. James W.B. Malone, III, then head of FBI Barry, John call from Mr. Cunningham, Richard J. F. Wardwell, requested Malone City, City. in New York Davis, Polk & New York examine Fonda’s Williams, Agnew, permitted Miller & Carl- be Stanley H. em- son, Cal., bank Rohlf conferred with his Morgan Guar. records. Los back, stating Malone ployees and called Trust of N.Y. Co. Green, necessary. Malone would be subpoena (1980) Amendment); (Eighth to let the L.Ed.2d 15 see very important it was replied that Civiletti, records, of national 641- Gillespie a matter also FBI see these case, in the this, acquiesced (9th Cir.1980). We are aware of no Rohlf security. On employee an however, instructed request. private FBI’s He which has decided that Fonda’s bank to see in a Bivens agent parties may to allow an be liable action. *3 any- remove statements, copy or but not Writers Guild of America v. American See to view the Inc., 355, FBI was allowed thing. The 609 F.2d Broadcasting Company, December 1970 denied, 824, from monthly Cir.1979), statements 449 (9th 360 cert. U.S. never to spoke Rohlf 85, (Intimates March 1972. through (1980) L.Ed.2d 27 101 S.Ct. 66 matter. again on this the FBI private parties may but does not decide that action); a Bivens Zerilli v. Eve be liable in information learned based on Apparently 217, Association, 222- ning News 628 F.2d Morgan Guaranty the rec- viewing from (Holds (D.C.Cir.1980) 24 that facts before it FBI went ords, May or June of 1971 the in issue); unnecessary make it to decide the Avenue Branch of Na- to the Fairfax Broadcasting Compa Benford v. American California, to Bank in Los tional nies, 1159, 1161-62 F.Supp. (D.Md.1980), 502 held permission to view an account request aff’d, 917, denied, cert. 454 661 F.2d U.S. agent The by secretary. for Fonda 612, 1060, (1981). 102 S.Ct. 70 L.Ed.2d 599 of manager to represented operations the branch, Goodlett, the Mr. that Fonda was assume, deciding, without We that investiga- subject security the of a national be liable in-a Bivens private parties may tion, urgent need and that the FBI was de principles action under similar to those repre- Based on these of the information. under 42 Paton veloped U.S.C. See § sentations, and allowed acquiesced Goodlett LaPrade, 862, (3d Cir.1975). v. 524 F.2d 871 statements, monthly the agent the to view brought be to may 1983 actions Section times, 1971 to July four from apparently constitutional violations effected redress November private party color of state law. A under II. DISCUSSION to have acted under color may be considered dispo- both the disputes conspir in a engages of state law when it of con- question of her action on the sition agents to or acts in concert with state acy had the that she spiracy and determination constitutional deprive one’s in her constitutionally protected no interest 794, Price, 787, 383 86 S.Ct. v. U.S. of the dis- bank records. Our affirmance 1156-57, 267, (1966); 1152, 16 L.Ed.2d 272 makes it unnec- trict court on the first issue Co., Kress 398 Adickes v. S.H. U.S. essary to decide the latter. 142, 151 1598, 1605, 26 L.Ed.2d 90 S.Ct. (1970); County v. of Stypmann a varia- appeal present claims on Fonda’s Francisco, (9th F.2d 1341-42 557 San Bivens commonly is called a tion of what California, Cir.1977); Briley v. Bivens Unknown Named action. v. Six Howard, Cir.1977); 633 (9th Rankin Narcotics, of Agents of the Federal Bureau denied, (9th Cir.1980), cert. F.2d 1999, 29 L.Ed.2d 619 91 S.Ct. U.S. 939, 101 68 L.Ed.2d 451 U.S. S.Ct. held (1971). In Bivens the decision in How (1981). This court’s recent subject- who had been private party that a Gabica, (9th 708 F.2d 380 Cir. may and seizure erton v. ed to an unlawful search the 1983), insight offers into against the federal additional bring damage action 1983’s satisfy conduct led conduct to necessary whose unconstitutional agents § requirement. color of law acting of Bivens has since under injury. to the The rule defendants, Howerton, husband and the the violation of applied remedy been to color wife, acted under au- were found to have rights by federal other constitutional po the Passman, directly engaged they 442 of law when eg., Davis v. thorities. See tenant, evicting a the to aid them in L.Ed.2d 846 lice evidence Amendment); plaintiff in the action. (1979) (Fifth Carlson faith “deliberately effort to curb Fonda’s anti-establish- that defendants showed this, more, authority conduct, with the themselves ment but will cloaked effecting repossession of the the state not suffice to make banks liable. The op. at-. As will Slip premises.” trailer argument duty that the banks had a to here discussed, showing was no there be allegedly objectives learn of the unlawful “deliberately” participated banks that investigation is without merit. purpose with the with the While a bank owes to duty a breach or rights, they Fonda’s civil violating depositor give its rise contractual or may to Instead, alleged objective. knew of the not, itself, is surely tort it in and of liability, what appeared merely acquiesced banks prove sufficient banks intended investigation. proper to be to them join or to further broad found there correctly court district objective curbing Fonda’s material show- fact genuine was no issue speech. *4 in- sufficiently actions were ing the banks’ of the to hold with that tertwined sufficiently failed to rebut Fonda’s constitutional them liable under proof of the defendant banks’ of a lack a claims. conspiratorial objective. common Once the which, uncon presented bank “evidence if conspiracy prove To a between tradicted, would entitle it to a directed ver under and the private parties trial, 56(e) the 1983, agreement “meeting [Fed.R.Civ.P.], an or of dict at shifts to § rights violate must minds” to constitutional the the party opposing burden [the motion] 152, Adickes, 398 at supra, U.S. showing be shown. presenting specific of facts that 151, 155; 1609, L.Ed.2d at 158, at 26 90 S.Ct. possible.” is Air such British contradiction 850; Rankin, v. supra, F.2d at Baer 633 Co., 946, Boeing v. F.2d ways Board 585 951 481, (N.D.Cal.1978); Baer, 487 F.Supp. 450 981, (9th denied, 99 Cir.1978), cert. 440 U.S. Hanrahan, F.2d Hampton v. 600 see also 1790, (1979). L.Ed.2d 241 A claim S.Ct. 60 600, (7th Cir.1979), cert. denied in 620-21 dependent conspiracy, being questions of on part other granted and cert. on part intent, not be amenable to may always of 754, 1987, 100 64 446 S.Ct. grounds, U.S. disposition summary judgment. on Ad See acquiescence mere (1980). 670 The L.Ed.2d 176, ickes, 398 U.S. at 90 S.Ct. at supra, the investigation to employees of the bank J., (Black, 164 concur 26 L.Ed.2d at view of the FBI to Fonda’s bank request ring); 624 F.2d Shamburg, Fisher is, more, to insufficient records (10th Cir.1980). that The mere fact a While it is not neces prove conspiracy. a however, alleged, will not de conspiracy is participant in a sary prove to that each adequately supported feat motion for an parameters know of conspiracy the exact Inglis & judgment. William Sons gen share the plan, they the must at least Baking Co., Baking v. ITT Continental Co. objective. Hampton, eral (9th Cir.1981), 668 F.2d 1055-56 cert. of the objective conspir 621. F.2d at - -, denied, 103 S.Ct. U.S. was, complaint, the “to words acy Investors, (1982); Mutual Fund L.Ed.2d 61 to destroy public credibility, [Fonda’s] Management Co., Inc. v. 553 F.2d Putnam political significance, her to cause weaken (9th Cir.1977); Henzel v. Ger 624-25 and professional injury her and personal (5th Cir.1979). stein, This punish and to embarrassment [her] in this case where there especially is true is War, of the Vietnam the Nixon criticism” facts; disagreement over the little actually Army. and the U.S. Clerk’s Administration the effect of legal what is those disputed is not to respond Record Fonda did 120. be But, dispute, effectively a facts. such showing they, through proof the banks’ law, properly be quite can ing question employees, nothing more than their knew summary judgment. decided on that on national carrying was Court Fonda. The FBI decision security investigation of contrary result. not mandate a Adickes does investigation part been of a bad may have Adickes, overturned the award summary judgment conspiracy on a ODLE, Plaintiff-Appellant, R. James moving claim when it concluded that dispel did not the infer- party sufficiently Margaret HECKLER,* Secretary H. reached private party ence that an Services, Health Human agreement deprive with the state official Defendant-Appellee. petitioner of her constitutional 158-160, 1609-1610, at at No. 81-4227. Here, however, 26 L.Ed.2d at 155-156. Appeals, Court of dispel banks did such inference. It is any Ninth Circuit. allowed FBI undisputed the banks agents to monitor Fonda’s bank records. Argued and March Submitted But, it is also the banks undisputed Decided June knowledge improper had no motive any outspoken because of her plaintiff harm pro- views. Fonda did not Simply, of a “meet- duce evidence of the existence

ing of the minds” between the banks attempt

the FBI to to accom- knowingly

plish alleged wrongful purpose, an a neces- of her claim.

sary conspiracy element

III. CONCLUSION grant- of the court judgment district

ing Morgan National Bank’s and Guar- judg-

anty Trust’s motions for

ment is

AFFIRMED, costs to appellees.

PREGERSON, Judge, dissenting: reading

I dissent. A of the record careful genu-

causes me to conclude that there are disputes bearing question

ine fact on the part conduct on the of Mor-

gan Guaranty National Bank.

Therefore, proper I do not think that it was on dispose summary judg- case

ment. Strain, Visalia, Cal., plaintiff- E.

Lois appellant. Floerchinger, Dept, L. of Health &
Gary Services, Francisco, Cal., for Human San defendant-appellee.

* Secretary Fed.R.App.P. 43(c)(1), Human Serv- as the of Health and Pursuant we substi- Heckler, Margaret ices. tute the name H. successor Harris, original appellee to the Patricia Roberts