Biggs and Van Dusen, Circuit Judges, and Green, District Judge. Van Dusen, Circuit Judge (concurring).
CLIFFORD SCOTT GREEN, District Judge.
Plaintiff, James H. Moore, Appellant, herein, filed a pro se Complaint in the United States District Court for the District of New Jersey demanding damages for alleged violations of his civil rights and of his Constitutional "rights to a fair trial." Also, he requested that defendants be enjoined from any "further deprivations of plaintiff's rights, privileges, and immunities as guaranteed by the laws and Constitution of the United States."
Defendant, George Koelzer, is an Assistant United States Attorney, Defendants, Antonius Genakos and Ralph Frank, are special agents of the Federal Bureau of Investigation. It is alleged in the complaint that defendants Genakos and Frank "did falsify a legal document" which was offered into evidence against appellant in a federal criminal prosecution; also, said defendants, as witnesses in the criminal trial, are alleged to have given "false testimony under oath." The other defendant, Koelzer, is alleged to have solicited the "fraudulent testimony." Plaintiff contends the aforesaid conduct was directed against him "because he is a black man and muslim." In the criminal trial, appellant was convicted and is presently incarcerated in the Federal Penitentiary at Leavenworth, Kansas.
A motion to dismiss the complaint was filed on behalf of all the defendants and affidavits were filed in support thereof denying the allegations of the complaint and specifically denying any "dealings" by defendants with the plaintiff other than in their official capacities. An affidavit by appellant reiterated the charges.
The District Court granted the motion to dismiss the complaint on the ground that the complaint failed to state a claim upon which relief could be granted. Plaintiff appealed.
Preliminarily, it is clear that the District Court has jurisdiction under 28 U.S.C. Sec. 1331(a) which provides:
"The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States."
The hand-written complaint which contains a demand for judgment of "$10,000,000" may be construed as containing a sufficient allegation that the matter in controversy is of a sum or value in excess of ten thousand dollars.
Appellant bases his cause of action on violations of his civil rights under 42 U.S.C. §§ 1981-1983, and on violation of his "rights to a fair trial" under the Constitution.
This Circuit has held that a cause of action for damages does not accrue under 42 U.S.C. §§ 1981 et seq. for an alleged violation of the Act by federal officers acting under color of federal law. Bethea v. Reid, 445 F.2d 1163 (1971). Thus, if a cause of action exists, it must be based on a violation of a constitutionally protected right of plaintiff.
Subsequent to the dismissal by the District Court, the Supreme Court of the United States in an opinion by Mr. Justice Brennan held that a violation of the Fourth Amendment right to be secure against unreasonable searches and seizures gave rise to an action for damages in the federal district court against federal agents, absent a right to immunity. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (June 21, 1971).
Thereafter, relying on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, supra, this Court in Bethea v. Reid, supra, held that a complaint which alleged violations of Fourth and Fifth Amendments ...