This is an appeal from an order of the District Court of the United States for the District of Columbia dismissing the complaint of the appellant, hereinafter referred to as plaintiff, upon the ground that it fails to state a claim upon which relief can be granted. The complaint is in two counts, the first seeking damages for “malicious prosecution,” the second for “interference with civil rights.” The first count alleges, in substance and effect, that there was brought to the attention of the late President Franklin D. Roosevelt by the defendant Samuel I. Rosenman, the President’s “confidential assistant” and “Special Counsel,” a motion derogatory to the President filed by the plaintiff herein in a “so-called sedition case,” in the District Court of the United States for the District of Columbia, 1 wherein the plaintiff in the instant case was counsel for one Noble; that this angered the President and that at his direction 2 Rosenman caused the defendant Francis Biddle, Attorney General of the United States, to “concoct a criminal charge” against the plaintiff; that thereupon Rosenman and Biddle and the defendant Oetje John Rogge, Special Assistant to Attorney General Biddle, 3 the defendant James V. *840 Bennett, Director of the Federal Bureau of Prisons, and the defendant Joseph W. Sanford, Warden of the United States Penitentiary at Atlanta, Georgia, all conspiring together and acting in concert to this directed end, by promises of leniency induced certain inmates of federal prisons, and, by plying him with liquor, induced one M. Edward Buckley, all approached and interviewed for the defendants by agents of the Federal Bureau of Investigation, to testify falsely against the plaintiff, the prison inmates before a grand jury in the United States District Court for the District of Maryland, and Buckley at a trial in the said District Court; that upon such false testimony of the prison inmates the plaintiff was by the grand jury on June 2, 1944, indicted for conspiring, contrary to the provisions of 35 Stat. 1113, ch. 321, § 135, Act March 4, 1909, 18 U.S.C.A. § 241, “to concoct a false alibi for one Hilliard Sanders . . . defendant by the plaintiff in 1942”; and that thereafter upon such charge the plaintiff was tried in the said District Court of Maryland and was acquitted. The count alleges that the plaintiff is a citizen of the United States and a legal and voting resident of the state of Indiana, temporarily residing in the District of Columbia, and that he is a member of the bar of the courts of the District of Columbia and of the bar of other courts. 4 It further alleges that by the aforesaid acts of the defendants he was damaged through impairment of professional standing, loss of business, and expense in defending against the criminal charge upon which, as alleged, he was indicted and tried. The count charges that “the testimony offered before the Grand Jury to bring about the indictment of the plaintiff was known by the defendants to be false and thаt each of the defendants knowingly, wilfully and maliciously participated in the unlawful conspiracy against the plaintiff. . . . ” The count states that “All defendants are sued in their personal capacities.”
The allegations of the second count of the complaint, charging the defendants with “interference with civil rights” of the plaintiff, are, in substance and effect, that the defendants named in the first count, conspiring together and acting in concert, maliciously attempted to deny to the plaintiff a fair and impartial trial of the criminal cause referred to in the first count. Specifically, it is alleged that the defendants endeavored “to prevent, impede and interfere with witnesses summoned on behalf of the plaintiff from testifying in the criminal trial,” threatening them with punishment if they testified in his behalf and punishing those who did so testify, and on the contrary promising rewards to those who would testify falsely against the plaintiff and actually rewarding those who did so testify. The second count repeats the charge that M. Edward Buckley was induced to give testimony, known by the defendants to be false, against the plaintiff at the criminal trial. The second count is grounded by the plaintiff upon Rev.Stat.1878, §§ 1979, 1980, 8 U.S.C.A. §§ 43, 47. These sections provide as follows:
“See. 1979. 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 aсtion at law, suit in equity, or other proper proceeding for redress.
“Sec. 1980. . . .
“Second. 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 Ms person or *841 property on account of any verdict, presentment, or indictment lawfully assented to by Mm, 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 hip property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
“Third. ... 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 the trial court, “Upon application by plaintiff for leave to amend, counsel for plaintiff and for defendants stipulated that the complaint be deemed amended to contain an allegation that the prosecution of plaintiff was without probable cause.” The defendants so stipulating were Rosenman and Rogge, these alone being before the court. None of the other defendants was served or entered appearance, so far as the record shows. The amendment was allowed. The prayer of the complaint was for $100,000 damages against each of the defendants under each count. The dismissal of the complaint as amended was “with prejudiсe and without further leave to amend.”
The ruling of the trial Court that the complaint fails to state a claim upon which relief can be granted was made upon a motion to dismiss filed by the defendants Rosenman and Rogge. Under familiar procedure the trial court, for the purpose of passing upon the legal sufficiency of the complaint, assumed, without determining, the truth of the allegatiоns thereof. For the same purpose we likewise assume, without determining, their truth.
We discuss the question of the sufficiency of the complaint in terms of each oi the counts separately.
First count. The sole question presented under this count is whether the rule of immunity from civil liability of a public officer for an injury suffered as a result of acts having “more or less connection with the general matters committed by law to his control or supervision,” Spalding v. Vilas, 1895,
The contention of the plaintiff that the rule of immunity of public officers from civil liability is inapplicable to the defendants in the instant case because they, as alleged, from ulterior motives, knowingly and wilfully concocted false testimony against him, is resolved against the plaintiff by the settled course of judicial decision. In Spalding v. Vilas, supra, where it was ruled that acts of the Postmaster General, defendant in that case, in calling, to the alleged injury of the plaintiff therein, the attention of postmasters who had made claims for readjustment of their compensation to the provisions of statutes relating to such business, were the kind of acts which by law the Postmaster General was authorized to do, it was held that he could not be subjected to civil liability “by reason of any personal motive that might be alleged to have prompted his action . . ..” (
The plaintiff cites Bell v. Hood, 1946,
In view of the authorities above reviewed, the trial court in the instant case correctly held that the complaint of the plaintiff fails in the first count to state a claim upon which relief can be granted.
The application of the rule of immunity cannot be avoided by the allegаtion of the plaintiff that the defendants are sued in their personal capacities. Cooper v. O’Connor, supra.
Second count. Sections 1979 and 1980 of Revised Statutes, 1878, 8 U.S.C.A. §§ 43, 47, upon which the second count is based, do not support a cause of action based upon such facts as are alleged in that count. Mitchell v. Greenough, 9 Cir., 1938,
“The federal statute relied upon (8 U.S.C.A. §§ 43, 47) was enacted in 1871 to enforce the rights granted by the Thirteenth and Fourteenth Amendments to the Constitution, U.S.C.A.Const. Amends. 13, 14. . . . The question then is whether or not a conspiracy to secure a conviction of a criminal offense in a court having jurisdiction thereof and of the defendant by knowingly using perjurеd testimony to convict an innocent person, is a conspiracy for the purpose of impeding the due course of justice in an attempt to ‘deny to any citizen the equal protection of the laws’. It is only in case of a conspiracy to effectuate such a purpose that one damaged in his person or property, or deprived of his rights as a citizen of the United States, is entitled to maintain an action for damages in the federal courts under the statute. (8 U.S.C.A. § 47, supra).
“No such purpose was involved in the alleged conspiracy in the ease at bar. Appellant was subjected to no greater hazard than any other individual in the state, namely, the hazard of being prosecuted for a crime and convicted by false testimony, and if the prosecuting officer of the county were sufficiently corrupt to use his high office for the purpose of convicting innocent people by perjured testimony, all the citizens within his jurisdiction would be subject to the same hazard.
“It is clear that conspiracy to deny the defendant due process of law is not a conspiracy to deny a person ‘equal protection of the law’, within the meaning of that phrase as used in the Fourteenth Amendmеnt, U.S.C.A.Const. Amend. 14, and the act under consideration (8 U.S.C.A. § 47, supra). The two propositions are quite distinct. Tinsley v. Anderson,171 U.S. 101 , 106,18 S.Ct. 805 ,43 L.Ed. 91 . The prohibition against ‘denial of the equal protection of the law’ was to prevent class legislation or action. It follows that the plaintiff has failed to state a cause of action within the terms of the federal statute (8 U.S.C.A. § 47, supra) upon which he relies. . . .” [Italics supplied] [100 F.2d аt pages 186, 187]
So far as Section 1979 alone is concerned, the clear language thereof makes’ unsupportable such a cause of action as is attempted to be stated in the second count in the instant case because it predicates the right to the relief which the section ’affords upon action taken “under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . ..” It is not alleged in the second count that the conspirators acted under color of any such statute, ordinance, regulation, custom, or usage. Cf. Viles v. Symes, 10 Cir., 1942,
Judgment affirmed.
Notes
United States v. McWilliams et al., Criminal No. 73086, D.C., 1944,
The count does not in terms allege that Rosenman acted at the direction of the President. It states that “as a result of a conversation between the late President Roosevelt and the defendant Rosenman the defendant Biddle was instructed to concoct a criminal charge against the plaintiff . . . .” But the count read as a whole implies that Rosenman was acting at the direction of the President, and the plaintiff’s brief in this appeal confirms that this was what the plaintiff intended to allege. The brief states that “at the behest of the late President Roosevelt . . . Rosenman set the machinery in motion to prosecute appellant [plaintiff].”
Rogge is described in the complaint as a citizen of the United States who “had offices in the Department of Justice and was specially designated to prepare the so-called sedition case for trial.” But in the plaintiff’s brief in this appeal Rogge is described as “Special Assistant to Attorney General Francis Biddle.” The trial court could take judicial notice of Rogge’s official position (Cooper v. O’Connor, 1938,
The count alleges that the plaintiff “is a member of the bar of the Courts of the District of Columbia, of Indiana, and of the Supreme Court of the United States as well as the Fedеral District Court for the District of Maryland, and the United States Circuit Court of Appeals for the Fourth and Fifth Judicial Circuits.”
The "Statement of Point on Appeal” in the plaintiff’s brief is in the following terms: "The sole question on appeal is whether officers of the United States who act from ulterior motives and knowingly and wilfully eoneoct false testimony can hide behind the cloak of immunity allowed Federal officials in the ordinary discharge of their duties.”