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August 29, 1974

Lori PATON et al., Plaintiffs,
J. Wallace LA PRADE et al., Defendants

Coolahan, District Judge.

The opinion of the court was delivered by: COOLAHAN

On January 11, 1973 the Director of the Federal Bureau of Investigation (FBI) requested the United States Postal Inspection Service to institute a 120-day mail cover on the national headquarters of the Socialist Workers Party (SWP) in New York City. *fn1" The mail cover was executed by a foreman in the New York City Post Office, who copied the information found on the envelopes of letters sent to the SWP. All information was forwarded to the New York City division of the FBI. In the course of this mail cover, the name and address of plaintiff Lori Paton were found. Plaintiff Paton's name and address were sent to defendant Special Agent-in-Charge La Prade of the Newark, New Jersey, FBI office. After it was ascertained that the Newark FBI files contained no information about her, Special Agent John Devlin of the Paterson, New Jersey, Resident Agent Office was assigned to investigate plaintiff Paton.

 Devlin confirmed, through use of a local area directory, that plaintiff Arthur H. Paton (Lori Paton's father) lived at the address found on the letter surveyed in the mail cover. Through inquiries at a local credit bureau, Devlin learned the past and present addresses of Lori Paton's parents and the past and present places of employment of her father. Devlin interviewed Chester Township Chief of Police Edward Strait, who informed Devlin that no member of the Paton family had a criminal record. West Morris-Mendham Park High School Principal Richard Matthews and Vice Principal Gerald Werle were interviewed by Devlin. The agent learned that Lori Paton was a student at the High School and was enrolled in a course entitled "Left to Right" which involved the writing of letters to political organizations of various persuasions.

 Devlin concluded his investigation with his visit to the High School and reported on his findings to La Prade on April 2, 1973. A memorandum dated May 7, 1973, written by Special Agent John H. Bryan at Newark to La Prade, stated:

In view of the fact that the subject is a high school student who apparently contacted the national office of the SWP in New York for information for one of her courses and, due to the fact that she is not believed to be involved in subversive matters, it is recommended that this case be closed administratively.

 The FBI has produced, and plaintiffs have filed with this Court as part of the public record in this action, the foregoing memorandum of Special Agent Bryan and the remaining FBI files in the Paton investigation. (See Government brief at 4.) The FBI has revealed further that "Plaintiff Paton's file carries the filing symbol 'SM-SWP', standing for 'Subversive Matter-Socialist Workers Party', which identifies the larger investigation of which the inquiry respecting her was a part."

 Lori Paton, suing by her father, and William Gabrielson, her teacher in the course "Left to Right," are plaintiffs of record here. Plaintiffs have brought suit on the grounds that defendants have violated plaintiffs' rights under 18 U.S.C. § 1702 *fn2" and the following provisions of the United States Constitution: First Amendment (chilling and impeding the exercise of free political expression and inquiry); Fourth Amendment (illegally investigating plaintiffs); Fifth Amendment (depriving plaintiffs of due process of law); and Sixth Amendment (prosecuting plaintiffs without affording plaintiffs the right to trial by jury or other procedural safeguards).

 Plaintiff Lori Paton has demanded $15,000 compensation from individual FBI agents and $50,000 in punitive damages. Plaintiffs together seek a declaratory judgment holding the SWP mail cover and investigations stemming from it to be illegal. They request injunctive relief barring such mail covers and investigations in the future. Lastly, plaintiffs seek "a mandatory injunction ordering the defendants to produce before the Court for destruction all records and notations made and maintained by them describing the correspondence and constitutionally protected educational, political and other activities of plaintiffs."

 Before the Court are several motions of each party: motion by plaintiffs to add specific FBI agents as parties defendant and to amend the complaint by including various details learned through discovery; motion by plaintiffs to compel the Government to give further answers and explanations in discovery; motions by plaintiffs for a preliminary injunction requiring the FBI to cease any investigation of plaintiffs and to expunge its records containing information on Lori Paton; motion by the Government on behalf of defendants for an order of dismissal or in the alternative for summary judgment denying the relief plaintiffs seek.

 On January 14, 1974 this Court rendered a bench ruling and order denying, under Rule 23(c)(1) of the Federal Rules of Civil Procedure, plaintiffs' motion to certify a class joining as plaintiffs with the named plaintiffs:

. . . all persons who have been or will become engaged in correspondence with dissident political groups or organizations in pursuance of their rights under the United States Constitution; and whose correspondence is surveilled by defendants, their agents, employees or informants without authority pursuant to a valid search warrant; and who thereby become subjects of files, dossiers, index cards, memoranda or other records maintained by the defendants, their agents, servants, employees or informants. [Notice of motion filed by plaintiffs on November 20, 1973.]

 The Court denied plaintiffs' motion on the ground that the position of plaintiffs failed to satisfy the requirements of Rule 23(a)(3) of the Federal Rules of Civil Procedure which states:

. . . the claims or defenses of . . . representative parties [must be] typical of the claims or defenses of the class.

 It is admitted by the Government in the official record of this action that Lori Paton's interest in the SWP was momentary and academic and that the Paton investigation was quickly terminated. It has not been shown that other persons investigated pursuant to the SWP mail cover had such mild contact with the SWP or were cleared of suspicion as completely as was Lori Paton. She cannot be an adequate representative for persons who may have had close affiliation with the ...

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