237 U.S. App. D.C. 219, 737 F.2d 1 (1984)
Plaintiffs filed their initial complaint on July 16, 1976, in the United States District Court for the District of Columbia against FBI defendants, District of Columbia defendants including MPD officers, and later added Courtland Jones as a defendant. The suit sought damages for actions occurring from 1967 or 1968 to 1974 involving surveillance and disruption of plaintiffs' protest activities and organizations such as the New Mobilization Committee, Black United Front, and Institute for Policy Studies.1
The FBI implemented the COINTELPRO program, which included publishing The Rational Observer on unwatermarked paper falsely attributed to students and mailing anonymous leaflets, with internal memoranda directing that the program's existence not be made known outside the Bureau and that proposals avoid embarrassing the Bureau.2 MPD defendants sent informants into the New Mobe, WMC, BUF, ECTC, Institute for Policy Studies, WAPAC, and the two plaintiff organizations who misrepresented their identities and shredded all political surveillance files in 1974.3
In 1972, former FBI Special Agent Robert Wall published articles in the New York Review of Books and the Washington Post describing COINTELPRO activities targeting New Left groups, including efforts to create dissent and a forged letter regarding a head tax; several plaintiffs read these articles, and some had personal knowledge of being subjects of investigation or the head tax issue.4 A June 1973 Washington Post article described MPD infiltration efforts.5
Plaintiffs amended the complaint on October 28, 1977, to include Jones, with service perfected on him in June 1981 after multiple attempts and court proceedings; trial took place in 1981, during which on December 14, 1981, after the close of evidence, plaintiffs' counsel contacted an excused juror by telephone to discuss the case and evidence.6
The District Court examined the juror and the contacting attorney on the record on December 18, 1981, and the case proceeded to appeal in this court after jury verdicts on liability and damages.7
Whether plaintiffs' complaint alleged facts with sufficient specificity to withstand dismissal?8
Complaints containing only conclusory, vague, or general allegations of a conspiracy to deprive a person of constitutional rights will be dismissed.9 Diffuse and expansive allegations are insufficient.10 Some factual allegations must support claims of unconstitutional motive.11 Plaintiffs who fail to allege any specific facts to support such a claim cannot expect to involve government actors in protracted discovery and trial.12
Yes. Plaintiffs not only alleged specific kinds of disruptive activity that could have had no other purpose than to disrupt, but also alleged facts describing the COINTELPRO program designed to conduct surveillance and cause disruption of plaintiffs' activities.13 These allegations clearly were neither general, conclusory, nor devoid of factual support and would have sufficed to survive a motion for dismissal under the standards articulated.14
The plaintiffs' complaint was drafted with sufficient specificity to withstand dismissal.15
Whether the District of Columbia waived its objection to the municipal liability jury instruction?16
Rule 51 of the Federal Rules of Civil Procedure provides that no party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict.17 The objection must state distinctly the matter to which he objects and the grounds of his objection.18 Parties who have an opportunity to object to instructions before the jury retires and do not avail themselves of it cannot claim on appeal that the instructions were erroneous.19
Yes. The District argues that Judge Oberdorfer mistakenly deviated from his own proposed instruction, making this precisely the kind of case to which Rule 51 is addressed.20 Yet when given the opportunity the District counsel raised no independent objections and requested no clarifications.21 The purpose of Rule 51 is to give the trial judge an opportunity to correct any inadvertent omission, ambiguity or error before the jury retires.22
The District of Columbia waived its objection to the municipal liability jury instruction.23
Whether the statute of limitations barred claims by plaintiffs Abbott, Bloom, and Booker against the FBI defendants on grounds of notice or lack of fraudulent concealment?24
When tolling is proper because the defendants have concealed the very cause of action, they have the burden of coming forward with any facts showing that the plaintiff could have discovered the cause of action if he had exercised due diligence.25 A plaintiff must know facts giving notice of the particular cause of action at issue, not of just any cause of action.26 Plaintiffs' knowledge of the grounds for a suit must generally extend to an awareness of the persons responsible for plaintiff's injury.27
Yes. Mr. Booker read the Wall article noting the existence of COINTELPRO and its design to thwart New Left activities.28 He had been present at BUF meetings focusing on the head tax.29 He had meetings with FBI agents trying to recruit him as an informant.30
Mr. Abbott read the Wall articles very avidly and had personal knowledge of the head tax issue.31 He knew the FBI was interested in using him as an informant.32 Mr. Bloom read the Wall article and came to believe that the Rev. Moore demand letter was written by an FBI agent.33
The statute of limitations barred claims by plaintiffs Abbott, Bloom, and Booker against the FBI defendants on grounds of notice.34
Whether the amended complaint adding defendant Jones was timely filed within the limitations period and whether the district court abused its discretion in denying dismissal for failure to prosecute?35
The filing of a complaint commences an action for statute of limitation purposes.36 Absent a clear abuse of discretion, a reviewing court must affirm the ruling of the trial court on a motion to dismiss under Rule 41(b).37 Discretion is abused only where no reasonable man would take the view adopted by the trial court.38
Yes. Plaintiffs filed the amended complaint in October 1977 within three years of the earliest date on which they might have had notice on the basis of public knowledge from the 1974 press conference.39 The district court did not abuse its discretion in denying the motion to dismiss because Jones shared counsel with the other defendants and received the full benefit of their preparations with no prejudice shown.40
The amended complaint adding defendant Jones was timely filed within the limitations period and the district court did not abuse its discretion in denying dismissal for failure to prosecute.41
Whether contact between plaintiffs' counsel and an excused juror during trial created prejudice requiring a new trial?42
Attorney contact with an excused juror during trial is potentially harmful and creates a rebuttable presumption of prejudice.43 The trial judge's appraisal of the prejudice resulting from contact with an excused juror is entitled to great weight and ought not be disturbed unless it is manifestly unreasonable.44
No. There is absolutely no evidence that any sitting juror was affected by the conversation.45 The excused juror did not mention the conversation to any sitting juror and no sitting juror was contacted directly.46 The timing of the contact minimized the usefulness of any information that might have been received because it was after the close of evidence.47
Contact between plaintiffs' counsel and an excused juror during trial did not create prejudice requiring a new trial.48
Whether the evidence was sufficient to support the jury's findings of conspiratorial liability within the MPD, between the MPD and FBI, and within the FBI, as well as individual liability of MPD defendants and the District of Columbia?49
A civil conspiracy is an agreement between two or more people to participate in an unlawful act or a lawful act in an unlawful manner.50 An express agreement among all conspirators is not necessary but the conspirators must share the general conspiratorial objective.51 In reviewing the ruling of the District Court, a court must view all evidence and inferences in the light most favorable to plaintiffs.52 The jury's verdict must be allowed to stand unless no reasonable man could reach a verdict in favor of the prevailing party.53
No. No evidence linked to any individual MPD defendant warrants even an inference of unlawful motive in carrying out routine law enforcement activity.54 The record is devoid of evidence that any District officers engaged in activities disruptive of the plaintiffs' activities protected by the First Amendment with approval by named defendants.55 There was insufficient evidence that the FBI defendants participated in any conspiracy with persons in MPD.56
The evidence was insufficient to support the jury's findings of conspiratorial liability within the MPD, between the MPD and FBI, and individual liability of MPD defendants and the District of Columbia, but was sufficient as to the FBI officers.57