Thomas v US, CA 84-3552

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WILLIAM THOMAS,                                           FILED
                                   )                      JAN. 13, 1987
               Plaintiff,          )                Clerk U.S. District Court
                                                        District of Columbia
                                   )
            v.                     )    Civil Action No. 84-3552
                                   )
UNITED STATES OF AMERICA, et. al., )
                                   )
             Defendants.           )
                                   )
                                   )

Appearances :
Mr. William Thomas
1440 N Street, N. W.
Apartment #410
Washington, D.C. 20005
(202) 462-3542
(Plaintiff, Pro Se)

Mr. Michael Martinez
Assistant U. S. Attorney
Judiciary Center Building
555 Fourth Street, N. W.
Room #4822
Washington, D. C.
(Counsel for the Defendants)

MEMORANDUM OPINION,
REPORT & RECOMMENDATION

Before the undersigned U. S. Magistrate upon reference from the Court (Oberdorfer, J.), is the motion of federal defendants [1] for summary judgment pursuant to Rule 56 (b), Fed. R. Civ. P., with respect to plaintiff's common law tort claims of assault and battery, false imprisonment and unlawful arrest, 42 U. S. C. § 1983 and § 1985 civil rights claims, and claims under the First, Fourth, Fifth, Sixth and Ninth Amendments, alleged by plaintiff, Mr. William Thomas. As a basis for his civil rights claims, plaintiff alleges that the defendants, U. S. Park Police ("USPP") officers and other federal agents and

[1 In separate memorandum opinions filed on December 15, 1986, the Magistrate recommended granting the motions for dismissal of Captain Michael Canfield, a District of Columbia defendant, and Mr. James C, Lindsey, a separately named defendant sued in his individual personal capacity.]

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officers of the U. S. Secret Service and their supervisors, harassed and intimidated him and ordered his arrest without probable cause, unlawfully detained him in police custody and illegally confiscated and destroyed his signs protesting nuclear weapons. Plaintiff also claims defendants caused false criminal charges to be brought against him in order to impede the exercise of his First Amendment right to peacefully demonstrate on the White House sidewalk and in the Lafayette park area.

In his restatement of claim, filed on July 21, 1986, Mr. Thomas [2] alleges that the supervisory defendants [3] named in his pro se complaint acted individually and in a conspiracy to cause his unlawful arrest and detention by USPP officers and other federal agents and officers of the U. S. Secret Service, to unlawfully charge him with disorderly conduct, camping under 36 C. F. R. § 50.27, and for maintaining "structures" on the White House sidewalk and in the Lafayette Park area in violation of 36 C. F. R. § 50.19 (e)(9)(10). Mr. Thomas brought the instant action contending, inter alia, that each arrest since July 1981 has been executed without probable cause, solely to abate his presence on

[2 Mr. Thomas claims he is the founder of the White House Anti-Nuclear Vigil, created to protest against thermo-nuclear holocaust and to bring about a "nuclear-safe" world. Since 1981, Ellen Thomas claims he has attempted to maintain a continuous full-time presence on the White House sidewalk and in the Lafayette Park area as part of his vigil.]

[3 among the federal defendants in this case, as named in plaintiff's restatement of claim, are OMB Acting Director Robert Befell, Department of the Interior (DOI) Secretary Donald F. Hodel, Former DOI Secretary William P. Clark, Former DOI Secretary James Watt, DOI Assistant Solicitor Richard Robbins, DOI Assistant Solicitor Patricia Bangert, Nation Park Service Regional Director Manus J Fish, James McDaniel of the Ad Hoc House Liaison Committee on President's Park Signs, USPP Lieutenant Christopher Merillat, U. S. Secret Service agent Jerry Parr, and other unidentified USPP Officers. Because two of the defendants are no longer acting in their official capacity, and plaintiff has not sued them individually, plaintiff's cause of action can be dismissed against these former officials, William P. Clark and James Watt, and the current Secretary of the Interior, Donald F. Hodel, substituted in their place under Rule 25 (d), Fed. R. Civ. P.]

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the White House sidewalk and in the Lafayette Park area, and that consequently his demonstration activities under the First Amendment were unlawfully infringed upon by the defendants, who allegedly opposed his continuous presence on the White House sidewalk and in the Lafayette Park area and the presence of his signs and placards.

Admittedly, the Magistrate has experienced some difficulty in identifying with precision each and every incident of law enforcement contact with Mr. Thomas which he contends constituted an infringement of is constitutional and civil rights, i. e., unlawful arrest, intentional destruction and damage of his signs, physical assault or intimidation, without arrest, because of the exercise of his First Amendment rights to protest the Administration's policies toward nuclear disarmament. Consequently, in an endeavor to assure that we have missed no incident or event, [4] we have reviewed his rambling complaint, amended complaint, and restated claims, supplemented with the factual allegations he has proffered in other pleadings and in the hearings before the Magistrate, to determine his version of events and have prepared a chronological chart setting forth all arrests, other contacts not involving arrests and plaintiff's allegations with respect thereto, in determining whether there is a material issue of fact or facts as to whether Mr. Thomas' constitutional rights and/or civil rights have been violated. [5] These charts are attached as Appendices A

[4 In reviewing these allegations and the record here as to both plaintiff's section 1983 and 1985(3) claims, and as to his constitutional claims, the Magistrate has applied the three-year statute of limitations under the recent decision of the Supreme Court, Wilson v. Garcia, 105 S. Ct. 1938 (1985). See also Hobson v. Brennan, 625 F. Supp. 459, 464 n. 11 (D. D. C. 1985).]

[5 In his second declaration, filed September 22, 1986, Mr. Thomas asserted that he has been engaged in expressive conduct and action in front of the White House, on the south sidewalk of Pennsylvania Avenue, N. W., and in Lafayette Park, since June 3, 1981 and that since then he has been arrested twenty-five times, and by his reckoning only seven armrests have resulted in conviction. See Second Declaration of William Thomas, ¶ 1 and ¶ 8.]

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and B to this Memorandum and Opinion, Report and Recommendation.

Plaintiff contends that "at least as early as Nov. 1981 there was a concerted effort among many different agencies within the Department of Interior to disrupt or terminate Thomas' expressive activity under color of the camping regulation." According to plaintiff, "defendants Richard Robbins and Patricia Bangert joined with William P. Horn (DOI), Sandra Alley and others to publish 36 C. F. R. ¶ 50.19 (e)(11)(12) in the Federal Register, which had the intent of eliminating the very large signs which stood in the Park as a strong symbol of individual commitment." Moreover, plaintiff claims, that "[A]s a direct and proximate result of that regulation, Thomas was forced to move his signs from the White House sidewalk to a lower profile situs across the street in Lafayette Park, and they attracted less attention and were easier to ignore." Mr. Thomas has alleged these same defendants have "redefined" the camping regulations in an effort to "get rid" of him, Concepcion Picciotto, Robert Dorrough, Ellen B. Thomas and others associated with him as "undesirables", not wanted on the White House sidewalk or in the Lafayette Park area because of the substance of plaintiff's messages and because of the unpleasant view they and their signs presented. Plaintiff, Mr. William Thomas, claims that the defendants promulgated these regulations in an effort to "drive" him out of the White House sidewalk and Lafayette Park areas.

Thus, plaintiff's principal contention is that these supervisory officials conspired among themselves, and with other federal agents and officers, in an effort to have him unlawfully arrested, harassed and intimidated in order to discourage plaintiff from continuing the free exercise of his First Amendment rights. In support of this contention, plaintiff has alleged, inter alia, in his restatement of claim filed July 21, 1986, that USPP Officer William S. Wolz

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threatened him with arrest on June 17, 1982, pursuant to instructions from defendant James C. Lindsey, then-deputy chief of police with the USPP, and that Chief Lindsey acting in concert with Robbins and Bangert, both DOI assistant solicitors, supervised plaintiff's allegedly unlawful arrest on April 17, 1983, and that "defendants Lindsey and/or Bangert instructed USPP Lt. Clipper to threaten Thomas with unlawful arrest" on July 22, 1983. Further, plaintiff claims that U. S. Secret Service agents "kicked down signs which Thomas had leaned against the White House fence", [6] allegedly with the knowledge and acquiescence of defendant Parr, a special agent of the U. S. Secret Service, and that defendants Lindsey and Robbins personally supervised the intentional destruction or confiscation of plaintiff's signs and other personal property. In further support of his contentions, Mr. Thomas alleges that USPP Officers Duckworth and Bohn harassed and photographed him on February 19 and 20, 1985, in preparation for an allegedly unlawful arrest on February 21, 1985. In furtherance of this conspiracy, USPP Officers Ferebee and Brown are alleged to have unlawfully confiscated plaintiff's protest signs and banner without probable cause on June 6, 1985. Other allegations will be elaborated upon below.

The Magistrate heard argument of counsel on these and other allegations at a hearing held on November 14, 1986 at which plaintiff appeared pro se and was fully permitted to argue his contentions, [7] The Magistrate has since then

[6 During such encounters, plaintiff alleges that U. S. Secret Service agents addressed him by such derogatory names as "scumbag" and "dirtball".]

[7 In view of the plaintiff appearing pro se and not being trained in the law, the Magistrate asked him probing questions and for a bill of particulars as to acts and conduct of police officials he considered unlawful and who could testify as to such incidents.]

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again reviewed the motion of the federal defendants for summary judgment, has carefully considered the opposition filed thereto by the plaintiff, and has reviewed the plaintiff's statements of material facts as to which he claims there exist genuine issues of material fact, the affidavits and attachments thereto, declarations of Mr. Thomas and witnesses to certain incidents and events, the memoranda of points and authorities, and the testimony taken upon deposition in the presence of the Magistrate of ten (10) witnesses in the case, as well as relevant portions of the court record. After consideration of these matters, and for the reasons stated below, the Magistrate concludes that the motion of the federal defendants must be denied.

In connection with their motion for summary judgment, the burden is on the federal defendants to shaw that there are no genuine issues of material fact and, therefore, that they are entitled to judgment as a matter of law. Adickes v. S. H. Kress, Co., 398 U. S. 144 (1970), That burden becomes somewhat heightened where, as here, constitutional rights of free speech and the right to peaceful demonstration are involved. Moreover, summary judgment against a pro se litigant is inappropriate if his version of the facts, if supported by any admissible evidence, would entitle him to judgment. Here, material facts are in dispute involving whether supervisory officials and officers acted in bad faith, either in a conspiracy or by combined action, to deprive plaintiff of his First Amendment rights which precludes granting summary judgment for the defendants. If the record before us reveals material factual disputes, the court may not choose to disbelieve plaintiff's version, even if implausible, as long as it is or can be supported by admissible evidence. The averments of a pro se complaint are to be read with liberality, Haines v. Kerner, 404 U. S, 519 (1972), and the

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pleadings must be reviewed in a light most favorable to the plaintiff, as the non-moving party. As our own Court of Appeals has recently noted, "because summary judgment is a drastic remedy, courts should grant it with caution so that no person will be deprived of his or her day in court to prove a disputed fact." Greenberg v. Food & Drug Admin., 803 F.2d 1213, 1216 (D. C. Cir. 1986).

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