Full opinion text
MEMORANDUM AND ORDER EISELE, Chief Judge. The defendants, James Blasingame and Jack Knox, agents for the Federal Bureau of Investigation, have moved to dismiss the complaint against them pursuant to Rule 12 and Rule 4 of the Federal Rules of Civil Procedure. They moved for dismissal essentially on the seven grounds set forth in their prayer, to wit: 1. Plaintiff has not satisfied the technical requirements of service of process of Rule 4, Fed.R.Civ.P. 2. The complaint should be dismissed for failure to comply with Rule 8(a), Fed.R.Civ.P., and because it fails to state a claim upon which relief can be granted as concerns a Bivens -type action or a Title 42, U.S.C., Section 1983 or 1985 suit. 3. The complaint should be dismissed as plaintiff lacks standing to assert the claim and is not the real party in interest. 4. The complaint should be dismissed as Title 42, U.S.C., Section 1983 is not applicable to Federal officials. 5. The F.B.I. defendants are entitled to immunity. .6. The F.B.I. defendants cannot be held liable on a theory of respondeat superior. 7. Plaintiff’s claim is barred by the doctrine of collateral estoppel. The Court agrees with the plaintiff that she has satisfied the technical requirements of service of process of Rule 4 in the light of the record that is before the Court. In plaintiff's response to the motion to dismiss, plaintiff asserts that it has stated the following claims under which relief can be granted: 1. Destruction of personal property by acts of arson by federal and state officials; 2. False imprisonment; 3. Malicious prosecution; 4. Denial of her U.S. Constitutional Right to consult her attorney; 5. Denial of her U.S. Constitutional Right to a fair trial; and 6. Severe mental anguish due to all of the above. In resisting the defendants Blasingame and Knox’s motion to dismiss any Bivens -type action, plaintiff states that her claims are more substantial than those in Bivens; that she suffered more humiliation by being arrested in the presence of her family; that she was falsely accused, arrested, imprisoned, poorly treated, forced to watch the distruction of irreplaceable accumulated possessions of her lifetime, and forced to observe her husband’s anguish. The Court has carefully examined plaintiff’s original complaint to identify the factual allegations that relate to the defendants James Blasingame and Jack Knox, agents of the Federal Bureau of Investigation. Paragraphs I — III do not mention any of the defendants by name. The allegations in those paragraphs and in paragraph IV charge that on June 3,1983, the home in which plaintiff had been living “was set on fire by the activities of numerous defendants” while the defendants “were attempting to capture the fugitive Gordon Wendell Kahl.” Plaintiff claims that her “personal possessions including but not limited .to, clothing, furniture, food, family heirlooms, and pictures of children were destroyed by the alleged acts of arson,” which acts were “premeditated.” Paragraph VI states: The operation was under the control of James Blasingame, the head of the F.B.I. for the entire State of Arkansas, with headquarters in Little Rock, Arkansas, where the acts complained of herein were planned and coordinated to the limited extent that they could be called coordinated. Paragraph VII charges: The operation was either so careless as to constitute negligence and/or reckless burning ... and/or gross negligence, inasmuch as the methods used to capture the alleged fugitive did not meet the minimum standards of conduct and procedures required of law enforcement officials; or in the alternative, it was the deliberate plan of the law enforcement officials____ The plaintiff can only assert claims personal to her and as to which she has standing to sue. Paragraphs VIII, IX and X, (with the exception of the references to the destruction of her personal property in paragraph X) raise issues that the plaintiff has no standing to raise and may be ignored for the purpose of the motions under consideration. Paragraph I under the caption “CIVIL RIGHTS JURISDICTION” states: The civil rights of the Plaintiff have been violated pursuant to 42 U.S.C. 1983 statutes and must be litigated in Federal Court. After her apprehension and arrest by James Stallcup while she was in the custody of Sheriff Roy Norwell of Boone County during her trial in the harboring case (in which she was represented by Court appointed counsel, Charlie Karr) she was denied access to the undersigned, her attorney of record in her capital murder case. Paragraph I under the caption “CONSTITUTIONAL RIGHTS” charges that the prosecuting attorney, James Stallcup, conspired with other officials “to date unknown” to deny plaintiff certain of her rights. The defendants, Blasingame and Knox, are in no way mentioned or implicated in these allegations. Under the caption “FACTUAL ALLEGATIONS” there are six separate paragraphs. Paragraph II repeats that: “all worldly possessions of the Plaintiff were destroyed either by the negligent and/or grossly negligent acts or omissions of the parties complained of herein____ Paragraph III provides: “James Blasingame, the highest law enforcement official of the United States Government present and (others) ... jointly governed the conduct of all persons present, or in the alternative, neglected to fullfill their responsibilities as law enforcement officials to properly supervise the scene. The conspiracy was in part organized and planned by F.B.I. agent, Jack Knox, code named “Fort Knox”. It is interesting to note that the last sentence quoted contains the only specific reference in the complaint to Jack Knox other than the allegation as to his residence address. Paragraph IV contains the following sentence: A conspiracy of conspirators including but not limited to, the Defendants cited herein arose to leave Norma Ginter to face the charges for the death of the fugitive and the Sheriff ... to protect the illegal personal interests of the Defendants. Paragraph V appears to complain about rights denied to Norma Ginter in connection with the state charge of capital murder. Its allegations cannot fairly be read to implicate the defendants Blasingame or Knox. Paragraph VI complains about the actions of James Stallcup. Under the caption “DAMAGES,” plaintiff states, inter alia: She suffered the loss of all of her life time personal possessions which had a fair market value of not less than FIVE THOUSAND DOLLARS ($5,000.00).... The Court has attempted to identify the factual allegations which might, when viewed in the light most favorable to the plaintiff, state some claim or claims upon which relief might be granted against defendants Blasingame and Knox. The defendants Blasingame and Knox have also filed an alternative “motion for summary judgment” contending that there is no genuine issue of material fact which would preclude the entry of summary judgment in their favor as a matter of law. In support of their motion for summary judgment, they have submitted the following: Exhibit 1: Affidavit for search warrant with attachments including a copy of the F.B.I. “WANTED” poster on Gordon Wendell Kahl. Exhibit 2: Statement of James T. Blasingame. Exhibit 3: Statement of Jack D. Knox. Exhibit 4: The Motion to Suppress Illegally Obtained Evidence filed in the case of U.S.A. v. Leonard Ginter and Norma Ginter, Western District of Arkansas No. 83-3009, on August 19, 1983, on behalf of Leonard and Norma Ginter, together with an unsigned copy of the “order on motion to suppress” in the same case. Exhibit 5: Defendants’ Memorandum of Law in Support of Motion to Suppress filed August 8, 1983, on behalf of Leonard and Norma Ginter, among others. Exhibit 6: Memorandum Opinion filed September 29, 1983, of the Honorable H. Franklin Waters, discussing and disposing of some nine different motions including the Motion to Suppress Illegally Seized Evidence and the motion of the Ginters to suppress incriminating statements. Exhibit 7: The order of Judge Waters filed September 29, 1983, which, inter alia, denied the Ginters’ Motion to Suppress Illegally Seized Evidence and their motion to suppress incriminating statements. Exhibit 8: This Court’s Memorandum and Order, filed March 13, 1984, in the case of Stephens v. Richard Burgess, et al, discussing, inter alia, the case of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). The plaintiff has filed a response to the motion for summary judgment filed by Blasingame and Knox with a brief in support thereof. Her response is supplemented by various exhibits as follows: Exhibit A: A photocopy of pages 1217-1230 of certain discussions between court and counsel including an offer of proof. Exhibit B: The testimony of one Thomas David Lee. The plaintiff has also filed a “Supplemental Response” to the defendants’ Motion for Summary Judgment to which she attaches the following exhibits: Exhibit C: Affidavit of the plaintiff, Norma Ginter. Exhibit D: Excerpts from the testimony of Mr. Dero Downing. Exhibit E: Affidavit of Roy Jessie Paul. On October 23,1985, the defendants, Blasingame and Knox, filed a “Response to Plaintiffs’ Response” to the Motion for Summary Judgment. And on November 12, 1985, said defendants also filed another “Response.” This latter document points out that the house which was used to harbor Mr. Kahl was not the property of the plaintiff, Ms. Ginter. Finally, on December 3, 1985, plaintiff filed “Clarification of Errors in the Response of James Blasingame and Jack Knox.” For the first time the plaintiff contends that she has “some property rights to the real property maintaining an option to purchase the property” and “Had some type of equitable ownership in the real property.” To clarify the matter, the Court wrote to the attorneys on January 10,1986, seeking to determine if Ms. Ginter was pursuing any claim for any interest in the real property. Her attorney responded, “Ms. Ginter filed suit for personal property loss. She did not file suit for real property loss.” In paragraph VI of the “Clarification” of the plaintiff, we find the following statement: The undisputed evidence is that defendant Blasingame was the senior law enforcement official there present, and that Agent Knox was involved in a continuing scheme, (see State of Arkansas vs. Ginter, CR-83-37, transcript page 326 and page 340), including perjury (see US. vs. Ward, 703 F.2d 1058 [(8th Cir.1983)]), and other crimes in order to violate the constitutional rights of individuals in his district in Arkansas. The Court first observes that it has examined the items referred to within parenthesis in the above quote and finds that they add nothing in support of the allegation that “Agent Knox was involved in a continuing scheme.” From a review of the complaint and the submissions of the parties in connection with the motion to dismiss and motion for summary judgment it is quite clear that the plaintiff’s complaint against Mr. Blasingame and Mr. Knox is limited to their involvement at and near the scene of the Ginter residence on the afternoon and evening of June 3, 1983. It is important in this connection to examine the affidavits of Mr. Blasingame, Mr. Knox and Ms. Ginter together with the excerpts from the testimony of Mr. Thomas David Lee, excerpts from the testimony of Mr. Dero D. Downing, and the affidavit of Mr. Roy Jessie Paul. The pertinent portions of plaintiff Ms. Norma Ginter’s affidavit states: On the afternoon of June 3, 1983, my husband, Leonard Ginter, and I were working on the emergency brakes of the Dodge Omni. On the evening of June 3,1983, shortly before 6:00 p.m., my husband left our home to go fishing. He was driving our Dodge Omni. Shortly after that, I heard a noise as if a vehicle were approaching. I thought Leonard might have forgotten something. I heard a dog barking. I went to the garage door to see what was happening. I had not heard anyone calling for me. I saw at least ten (10) men dressed in camoflauge suits pointing guns at me. I recognized Lawrence County Sheriff, Gene Matthews, who said to me in a low voice, ‘I’m so proud that you came out.’ I saw that two (2) officers had Leonard in handcuffs. One (1) tall and thin officer said he was with the F.B.I. Another officer came and grabbed me quickly and handcuffed me, with my hands behind my back. I was afraid. I did not answer when I was asked if anyone else was in the house. Both Leonard and I were forced to lay on the ground. I was close to the garage. I was laid on my back, with my arms behind me. The ground was cold and my arms were hurting from that position. I heard shooting. I felt vibrations in the air from bullets passing. I was so scared and uncomfortable that I asked if I could turn over. The officer said ‘Yes’ but no one helped me, so I managed to turn over my myself. I closed my eyes because I was afraid I was going to die. I heard one of the officers say, ‘Oh shit, she passed out.’ I was wearing jeans, a tank top and carpet slippers. I was grabbed and dragged — half walking, half being pulled — over brushy overgrown ground to an unmarked car. During this time I lost one (1) of my slippers. I told the officer my slipper was lost. The rough ground was hurting my foot. One (1) of the officers said, ‘You don’t need the damn slipper.’ I was put in the car and my husband was handcuffed to the doorpost. The car was guarded by two (2) officers with guns. I heard more shots. I could see a car go past the car where I was being held. I heard a man shout ‘We need MORE FUEL!’ We were made to walk up the hill to a police car. I smelled smoke and I could see smoke on my left, coming from around my garage. Leonard and I were taken in a police car to Walnut Ridge. In her “Response to Defendants, Blasingame and Knox’s Motion for Summary Judgment,” filed October 1, 1985, it is stated in paragraph XIII that “Norma Ginter saw the kerosene placed upon the roof of her home and hereby submits testimony to that effect. See Exhibit ‘C’.)” However, as noted above, the only possibly related reference in Ms. Ginter’s affidavit is the statement “I heard a man shout, ‘We need more fuel!’ ” Nevertheless the plaintiff does have testimony that a can of diesel fuel or kerosene was placed over a vent on the roof of the house. See the testimony of Mr. Thomas David Lee, who served as the City Marshal for the city of Ravenden, and also as a deputy sheriff for Lawrence County. Mr. Lee states that when he stopped at the road block he heard a call over the radio that “they needed some gas.” He requested the fuel from a gentleman who lived in a house a mile or so from the road block. At the time that he obtained the fuel he did riot know what it was to be used for. When he arrived at the scene, F.B.I. Agent Jerry King asked him if he and Arkansas State Trooper Steve Huddleston could get the fuel in through the vent on the roof of the house. They responded that they could. Mr. Lee states that he arrived at the actual scene around 6:15 p.m.; he had not heard a shot fired before arriving, but that Agents King and some other agent “tried to shoot the fan on top of the vent, — tried to shoot it off.” Mr. Lee states that he and Trooper Huddleston put the can over the vent. He was asked, “how it was going to be gotten down into the vent and into the house?” His reply was: “Well after, after he put it over there, and backed off, and they said they were going to fire into the can and Trooper Huddleston fired two shots into the can.” Mr. Lee estimates the vent was from 8 to 12 inches in diameter and the can “set right up on top of it.” Mr. Lee was also asked if he saw anybody throw a tear gas canister or a grenade into the house. He answered “If I’m not mistaken, it was two tear gas grenades and one smokes.” He did not hear any loud explosion after they were dropped in, apparently because they were not “the kind of canisters that would explode.” Mr. Lee stayed at the site until about midnight. Mr. Lee states that he was the first one in the house after the fire. He wore a breathing apparatus. He found a bullet in the head of the body that was in the house and retrieved it. He stated that the body was lying approximately two or three feet from the front picture window with the head facing toward the window. “He was laying straight down with no arms and no legs attached to his body.” The testimony of Mr. Dero D. Downing, an F.B.I. agent, was that he knew that everything in the residence, for all practical purposes, had been destroyed. He knew there was a fire at the house. To his knowledge it was caused by “tear gas, things of that nature.” He testified also that “there was some talk of some accelerant, possibly kerosene, being used.” He does not recall who told him that. He believes that Special Agent Jim Handley and Special Agent Crouch and “several other individuals” were standing around when the statement was made. Mr. Roy Jessie Paul has worked for the Houston (Texas) Fire Department since December 27, 1971, and since October 3, 1981, he has been a State Certified Arson Investigator. He has had 120 hours of classroom training in arson as well as on-the-job-training, and has investigated between 500 and 1000 fires. According to his affidavit, Mr. Paul on August 9,1983, investigated the remains of the Smithville, Arkansas home regarding the fires which occurred on June 3, 1983. He selected samples of burned material for laboratory testing for the presence of accelerants. He had the samples tested by a chemist, Mr. Floyd McDonald, of the Houston Texas Police Crime Laboratory. His affidavits concludes: A sample of the material taken from the vent of the Ginters’ home was found to contain an incendiary substance which indicated that the fire was intentionally set or accelerated. Mr. Paul’s final statement is that his training “indicates that no law enforcement purpose would be served by the addition of accelerants to a residence.” The defendants’ submissions, just reviewed, would clearly support a finding that kerosene had been used at the direction of F.B.I. Agent Jerry King. In fact, it appears that the use of the kerosene as described by the witness Lee may be conceded even though Mr. Blasingame may have been unaware of it before the fact. See discussion below. Before reviewing the affidavits of defendants Blasingame and Knox it is important to put the suggested factual issues in context. The defendants, Blasingame and Knox, contend that they are entitled to summary judgment because, inter alia, of the doctrine of good faith immunity. In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), it is stated that qualified immunity may be demonstrated in motions for summary judgment to “permit the resolution of many insubstantial claims ... and to avoid subjecting government officials either to the cost of trial or to the burdens of broad-reaching discovery.” (at p. 817, 102 S.Ct. at 2737-38). The case of Mitchell v. Forsyth, — U.S. -, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) is instructive for our purposes. In 1970, Attorney General John Mitchell authorized a “warrantless” wiretap on the telephone of Professor William Davidon, a Haverford College physics professor who was a member of a group known as the East Coast Conspiracy to Save Lives. The F.B.I. had learned that this organization had made plans to blow up heating tunnels linking federal office buildings in Washington, D.C., and had also discussed the possibility of kidnapping National Security Advisor Henry Kissinger. The wiretap was authorized to gather intelligence involving domestic threats to the national security. The wiretaps stayed in place from November 1970 until January 6, 1971. It was not until 1972 that the United States Supreme Court ruled that the Fourth Amendment does not permit the use of warrantless wiretaps in cases involving domestic threats to the national security. US. v. U.S. District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Forsyth sued Mitchell and others alleging that the surveillance violated both the Fourth Amendment and Title III of the Omnibus Crime Control and Safe Streets Act. Upon motion for summary judgment, Mitchell contended that the decision in Keith should not be applied retroactively and that he was entitled to either absolute prosecutorial immunity or to qualified or “good faith” immunity, the latter under Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). The district court, while rejecting Mitchell’s claim of absolute immunity, found that he was entitled to assert a qualified immunity and could prevail if he proved that he acted in good faith. Accordingly, the court denied the motion for summary judgment. This ruling was appealed to the Third Circuit which remanded for further fact finding on the purpose of the wiretap. The district court conducted the fact finding and again concluded that Mitchell was not entitled to absolute prosecutorial immunity. At the same time it reconsidered its ruling on qualified immunity in the light of Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), a case in which, according to Justice White’s opinion in Mitchell: [T]his Court purged qualified immunity doctrine of its subjective components and held that “governmental officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The district court reviewed Mitchell’s argument under this standard, granted Forsyth’s motion for summary judgment on the issue of liability, and scheduled further proceedings on the issue of damages. Mitchell again appealed. The Third Circuit agreed with the district court that Mitchell did not have absolute immunity. With respect to the denial of qualified immunity it held that the district court’s order was not appealable under the collateral order doctrine. It therefore remanded the case to the district court for further proceedings. Mitchell’s petition for certiorari to the Supreme Court was granted. The Supreme Court, Justice White delivering the opinion of the Court, agreed that Mitchell was not entitled to absolute immunity. Next it held that the district court’s denial of qualified immunity was an appeal-able order. It then reached the issue of Mitchell’s claim of qualified immunity. Justice White begins his discussions of this issue as follows: Under Harlow v. Fitzgerald, Mitchell is immune unless his actions violated clearly established law. See 457 U.S. at 818-819, 102 S.Ct. at 2738; see also Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). Forsyth complains that in November 1970, Mitchell authorized a warrantless wiretap aimed at gathering intelligence regarding a domestic threat to national security — the kind of wiretap that the Court subsequently declared to be illegal. Keith, supra. The question of Mitchell’s immunity turns on whether it was clearly established in November, 1970, well over a year before Keith was decided, that such wiretaps were unconstitutional. We conclude that it was not. The Court examined the status of the law at the time of Mitchell’s decision to install the wiretap. Justice White then concluded that: Of course, Keith finally laid to rest the notion that warrantless wiretapping is permissible in cases involving domestic threats to the national security. But whatever the agreement with the Court’s decision and reasoning in Keith may be, to say that the principle Keith affirmed had already been “clearly established” is to give that phrase a meaning that it cannot easily bear. The legality of the warrantless domestic security wiretap Mitchell authorized in November 1970, was, at that time, an open question, and Harlow teaches that officials performing discretionary functions are not subject to suit when such questions are resolved against them only after they have acted. The District Court's conclusion that Mitchell is not immune because he gambled and lost on the resolution of this open question departs from the principles of Harlow. Such hindsight-based reasoning on immunity issues is precisely what Harlow rejected. The decisive fact is not that Mitchell’s position turned out to be incorrect, but that the question was open at the time he acted. Hence, in the absence of contrary directions from Congress, Mitchell is immune from suit for his authorization of the Davidon wiretap notwithstanding that his actions violated the Fourth Amendment. So the question here is: did the actions of Mr. Blasingame or Mr. Knox “violate clearly established statutory or constitutional rights of which a reasonable person would have known?” Harlow v. Fitzgerald. The question requires the Court to identify the actions of Mr. Blasingame and Mr. Knox of which Ms. Ginter complains. We have already reviewed the allegations of Ms. Ginter’s complaint. We now look at the affidavits of Mr. Blasingame and Mr. Knox. We first take up the affidavit of Mr. Knox because it appears therefrom that he was not even present at the scene on June 3, 1983. Nor does it appear that he had any knowledge of the use of, or the intention to use, any flammable substance. Mr. Knox states that he is a Special Agent of the F.B.I. and has been such since 1963. He has been assigned to the Fayetteville office since 1974. On May 30,1983, he was asked to participate in the federal investigation of Gordon Wendall Kahl a fugitive who was charged with the murders of two deputy U.S. marshals. He interviewed Karen Russell Robinson on May 30, 1983, and was informed by her that her father, Arthur Russell and others had harbored Mr. Kahl in the Mt. Home, Arkansas, area. Mr. Knox reported this information to the Little Rock office of the F.B.I. On June 1, 1983, Karen Robinson informed Mr. Knox that Mr. Kahl had departed the Mt. Home, Arkansas, area at approximately 10:00 a.m. on May 30, 1983, in the company of “Leonard and Norma,” last names unknown, in a small cream-colored foreign car. According to Mr. Knox’s affidavit, Ms. Robinson also informed him that Mr. Kahl was in possession of various firearms and planned to travel to Texas to obtain automatic weapons to take to Wyoming or Montana. Mr. Knox passed this information along to the Little Rock F.B.I. office. The last two paragraphs of Mr. Knox’s affidavit read as follows: 7. I was not present at and did not participate in the subsequent search of the residence of Norma Ginter on June 3, 1983, as I was tasked by my superiors to remain in the Mountain Home, Arkansas, area. I neither prepared the search warrant for the Ginter residence nor participated in the planning of the execution of that warrant. 8. All actions taken by me in connection with the Kahl investigation and relating to the plaintiff, Norma Ginter, were performed within the scope of my employment, and with a good faith reasonable belief in the lawfulness of my actions. At no time did I conspire with any person to violate the rights of Norma Ginter, Gordon Wendall Kahl, or any person. So it appears that Mr. Knox was not a participant in any of the events occurring at or near the Ginter residence near Smith-ville, Arkansas, on June 3, 1983. Ms. Ginter has submitted no affidavits or testimony to the contrary. Mr. Blasingame was involved in some of the events occurring on June 3, 1983, near the residence of the Ginters. His affidavit is therefore much longer than Mr. Knox’s. Mr. Blasingame was the Special Agent in Charge of the Little Rock office of the F.B.I. at the time and had been since 1982. He was asked to participate in the federal investigation of Gordon Wendall Kahl who was then a fugitive charged with the murders of two deputy U.S. marshals. During the course of his investigation he received information indicating that Mr. Kahl was a tax protestor, a federal parole violator and a member of the organization known as “Sheriff's Posse Comitatus,” and that he and others on February 13,1983, killed two deputy U.S. marshals, severely wounded a third marshal, a North Dakota deputy sheriff, and a Medina, North Dakota, police officer at Medina, North Dakota, through the use of automatic weapons. On June 1, 1983, Mr. Blasingame received information indicating that Mr. Kahl had been hiding in the North Arkansas area. On June 2, 1983, he received the information reported by Karen Russell Robinson that Kahl had departed the Mt. Home, Arkansas, area at approximately 10:00 a.m. on May 30, 1983, in the company of Leonard and Norma, last name unknown, in a small cream-colored foreign car and that Kahl was reported to be in possession of firearms. On June 3, 1983, he learned that Leonard and Norma could possibly be Leonard and Norma Ginter of Smithville, Arkansas, who were reported to drive a cream-colored Dodge Omni and that Leonard Ginter was a known tax protestor. Shortly thereafter he learned that a 1980 Dodge Omni, bearing Arkansas license no. KAP — 366 was registered to the Life Science Church, Smithville, Arkansas, the trustee being David Ginter. Mr. Blasingame was also made aware that the Life Science Church was associated with the “Sheriff’s Posse Comitatus” to which Kahl belonged. He also was made aware that the Ginters had a son by the name of David. On June 2, 1983, from his position in an airplane, Mr. Blasingame personally observed a small cream-colored Dodge Omni in the driveway of the residence of Norma and Leonard Ginter. On June 3, 1983, he, as affiant, obtained a search warrant authorizing a search of the Ginter residence for federal fugitive Gordon Wendall Kahl. The rest of Mr. Blasingame’s affidavit which deals with his actions on the site on June 3, 1983, reads as follows: 11. A plan was then initiated wherein Lawrence County, Arkansas, Sheriff Gene Matthews, Arkansas State Trooper Ed Fitzpatrick, Deputy United States Marshal Jim Hall, and myself would approach the Ginter residence in an automobile and, from a location affording as much protection as possible, Sheriff Matthews would call the Ginters from the house, as the county sheriff is the only law enforcement officer recognized by the group “Sheriff’s Posse Comitatus,” to which Kahl belonged. If the Ginters refused to come out, we were to move away from the residence and periodically continue our efforts to contact the Ginters. No one was to approach the Ginter residence at this time. Included in this plan was the assignment of various individuals to back-up and perimeter duties. 12. Just prior to the arrival of Sheriff Matthews, State Trooper Fitzpatrick, Deputy United States Marshal Hall and myself at the Ginter residence, I learned that Leonard Ginter was stopped exiting the driveway of the Ginter residence in his cream-colored Dodge Omni. I arrived at the Omni and observed Ginter to have a rifle and was told he also had a cocked pistol. 13. At this time Leonard Ginter advised me that Norma Ginter, and nobody else, was in the Ginter residence. He indicated he would be willing to call Norma Ginter from a position near the front of the garage of the residence and have her exit the residence. 14. Sheriff Matthews, State Trooper Fitzpatrick, Deputy United Slates Marshal Hall, Leonard Ginter and myself then proceeded to the front of the garage, and from there Ginter notified his wife to come out as the “FBI” wanted to talk to them. 15. Norma Ginter exited the residence and when asked stated nobody else was in the residence. 16. As I was interviewing the Ginters and about to show them the search warrant authorizing the search of their residence for Kahl, I heard gunfire. 17. I immediately accompanied Norma Ginter around the corner of the garage in what appeared to be a safe position. 18. Deputy United States Marshal Hall shortly thereafter came from around the same corner of the garage and informed me that Sheriff Matthews had been shot. 19. Both Leonard and Norma Ginter were thereafter removed from the area, and believing automatic weapon fire to be emanating from the residence, I concurred with the delivery of teargas projectiles into the Ginter residence. 20. I thereafter returned to Leonard Ginter and displayed a wanted flyer with a photograph of Gordon Wendall Kahl to Leonard Ginter who indicated Kahl was in the house alone. 21. I returned to a position near the residence and reported Ginter’s information to those nearby. 22. Due to exposure to teargas, I was forced to leave the immediate area and return to the location where the Ginters then were. Leonard and Norma Ginter were arrested for harboring a fugitive and removed to the Lawrence County, Arkansas, Jail. 23. At approximately 7:00 p.m., I learned there was a fire in the Ginter residence and I thereafter ordered a fire truck to be sent from Imboden, Arkansas. At this time I also heard what sounded like thousands of rounds of ammunition exploding in the fire within the Ginter residence. 24. At approximately 9:00 p.m., I was advised by Arkansas state officials that charges of murder were being contemplated against Leonard and Norma Ginter for the death of Sheriff Matthews. 25. I did not participate in any alleged plan to introduce flammable material into the Ginter residence in an effort to force the occupant out nor did I take any action at the scene to accomplish this alleged activity. 26. All actions taken by me in connection with the Kahl investigation relating to plaintiff Norma Ginter were performed within the scope of my employment, and with a good faith reasonable belief in the lawfulness of my actions. At no time did I conspire with any person to violate the rights of Norma Ginter, Gordon Wendall Kahl, or any other person. The Court notes Mr. Blasingame’s statement that he did not participate in any plan to introduce flammable material into the Ginter residence nor take any action at the scene to accomplish that activity. Ms. Ginter offers no affidavit or evidence to the contrary. It is clear beyond any doubt that Mr. Knox’s motion to dismiss and motion for summary judgment must be granted, both upon the basis of Harlow v. Fitzgerald and for other obvious reasons. Under Harlow and Mitchell, discussed above, it is necessary to determine if Mr. Blasingame is entitled to qualified or “good faith” immunity as a matter of law. Again we ask: Did his conduct violate clearly established statutory or constitutional rights of which a reasonable person would have known? The thrust of Ms. Ginter’s complaint against Mr. Blasingame is that he caused the destruction of her property by fire. The submissions of the parties do not make it clear what the cause or causes of the fire were. From the submissions it is possible to contend factually that the fire was caused by the tear gas canisters or the smoke bomb or the explosion of ammunition within the house, or by the diesel fuel or kerosene that entered through the vent. It is also possible that fires resulted from one, two, three, or all four of these possibilities. Mr. Blasingame’s affidavit states that, “Believing automatic fire to be emanating from the residence, I concurred with the delivery of tear gas projectiles into the Ginter residence.” There is no direct evidence that the tear gas projectiles could have, or did, cause the fire. Accepting the unopposed statement in the affidavit of Mr. Blasingame as to the information he had received and his state of mind, the question is would his “concurrence” or even direct authorization of the use of tear gas projectiles under the circumstances violate clearly established statutory or constitutional rights of which a reasonable person would have known? Mr. Blasingame states that before he concurred in the use of the tear gas projectiles, he had been informed by Deputy U.S. Marshal Hall that Sheriff Matthews had been shot and that automatic weapon fire was emanating from within the house. Ms. Ginter has cited no law which would suggest that the use of tear gas under the circumstances would violate any clearly established statutory or constitutional rights of her or of Mr. Kahl for that matter. It therefore appears that Mr. Blasingame is entitled to qualified immunity as a matter of law. Ms. Ginter has submitted the testimony of Mr. Lee indicating that F.B.I. Agent Jerry King asked him and Arkansas State Trooper Steve Huddleston to put the can of fuel on the vent of the house with the plan of shooting holes in the can to permit the introduction of the diesel fuel or kerosene through the vent and into the house. To carry out this plan, apparently Trooper Huddleston fired two shots into the can. The plaintiff has not made F.B.I. Agent Jerry King a defendant in this action. She suggests, however, given an opportunity at full discovery, that she might develop a link between Mr. Blasingame and Mr. Jerry King’s actions, i.e., that someone might testify that Mr. Blasingame directed Mr. King to obtain and use the fuel. But even assuming that Ms. Ginter through discovery might make a genuine factual question along that line, what difference would it make? In that event, this Court would be faced with the question under Fitzgerald and Harlow whether the authorization of the use of the diesel fuel or kerosene under the circumstances would have violated any clearly established statutory or constitutional rights of either Ms. Ginter or Mr. Kahl. The use of fire to force an armed subject, who is reasonably believed to be an armed and dangerous murderer, out of a house has not been shown by Ms. Ginter to violate any statutory or constitutional right which had been “clearly established” prior to June 3, 1983. So the Court sees no reason to open discovery on this point. Ms. Ginter has, as shown above, brought forward the affidavit of Roy Jessie Paul. Mr. Paul worked for the Houston, Texas, Fire Department since 1971 and has been a State Certified Arson Investigator since October 3, 1981. The last statement of his affidavit is that his “training indicates that no law enforcement purpose would be served by the addition of accelerants to a residence.” The case of McKinley v. Trattles, 732 F.2d 1320, 1324 (7th Cir.1984) points out that the S.Ct. in Harlow “indicated that immunity was a question of law for the judge to decide in the light of the ‘state of the law.’ ” It goes on to state “We do not believe a jury is competent to decide the ‘state of the law.’ ” So it is not a question of the opinion of an arson investigator or even of a law enforcement officer. Rather the question is, what is there in the statutory law, pertinent regulations, or caselaw, prior to June 3, 1983, which would indicate that the actions of Mr. Blasingame, assuming that he authorized the use of fuel to “bum out” Mr. Kahl, violated clearly established law? On January 29, 1986, the Court put this question to the parties for their comments and argument. The Court’s letter re this issue stated: Mr. Minns suggests that, given an opportunity for full discovery, he might establish that Mr. Blasingame directed FBI Agent Jerry King or others to use diesel fuel or kerosene to “burn out” Mr. Kahl. I would appreciate the parties bringing to my attention any statutes, regulations or cases which would indicate that the use of such procedure would violate the clearly established rights of anyone in a position similar to that of Mr. Kahl or Ms. Ginter on June 3, 1983. In other words, assume that law enforcement officers honestly believe that a heavily armed fugitive, charged with murder, is “holed up” in a house or building. Is there “any clearly established law” that, in discharging their duties to apprehend that fugutive, they may not intentionally set fire to the building or house in order to force him out? My question here is whether Mr. Kahl, had he survived, would have had any right of action against the law enforcement officers in such circumstances. We are not here dealing with the rights of an innocent third party whose house might be occupied by such a fugitive and whose property might be destroyed as a consequence of such police action. The question is whether such action by law enforcement officers under such circumstances (i.e., the use of fire to force á fugitive from hiding) would be contrary to clearly established law. The government, while noting that the burden is on Ms. Ginter to point to the law that supports her claim, states that no clearly established law prohibited the use of such procedure to execute the arrest and search warrants in an effort to capture an armed fugitive who had fired his weapon(s) at law enforcement officers. It cites Tennessee v. Gamer, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) and Steagald v. U.S., 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). Of course, the government also argues that it is immaterial whether the fugitive Kahl might have a cause of action because such rights are personal. However, in determining the rights of Ms. Ginter with reference to her property claim against the individual FBI Agents, it is important to determine whether those officers were acting contrary to any clearly established law. We are not here dealing with an action against the government. The government also cites Amato v. U.S., 549 F.Supp. 863 (D.N.J.1982) in which a bank robber brought a FTCA claim against the government. There the FBI found out that the robbery was planned and staked out the scene. One of plaintiff’s accomplices saw the FBI agents and fired a shot. Within thirty-three seconds, the eleven FBI agents fired their weapons 39 times firing 281 bullets and buckshot. The plaintiff received 65 wounds and his car was hit 141 times. Plaintiff survived and sued. The court ruled that the FBI agents had not used excessive force. It stated: [The plaintiff’s] accomplice fired the first shot which set the forces of destruction in motion. Plaintiff bears responsibility for those acts. Return fire was foreseeable. Confusion was foreseeable. Injury and death were foreseeable. Each individual agent who was placed in fear of bodily harm or who reasonably believed that he or his colleagues were in such danger had the right to respond with equal force. Having gone to a bank with the intention of robbing it, armed with loaded weapons, and firing such weapon at an FBI agent, the plaintiff is responsible for the foreseeable consequences. It is foreseeable that he who lives by the gun shall die by the gun. The plaintiff in her response to the Court’s letter of January 29, 1986, first cites Arkansas Statutes 43-413 and 43-430. The former states that no unnecessary force or violence shall be used in making an arrest. The latter sets forth guidelines for stopping or detaining a person reasonably suspected of committing a felony or about to commit a felony. Ms. Ginter further argues that the fire was not used for the purpose of forcing a fugitive from hiding. It is plaintiff’s theory that Mr. Kahl was already dead when the fire occurred and that there was no legitimate law enforcement purpose served by the use of the fire. The question for the Court here, however, is not whether Mr. Kahl might have been killed before the fire commenced, but whether the law enforcement officers reasonably believed that he was still alive (and therefore posed a threat) at the time. There is nothing in any of the factual submissions which suggests that any of the law enforcement officers knew or believed that Mr. Kahl was dead when the fire commenced. All of the inferences are to the contrary. Like the government, the plaintiff’s counsel in effect suggests that it is irrelevant that Mr. Kahl might have had a cause of action had he survived. Plaintiff's brief states: The alleged fugitive apparently was a politically oriented individual, a suspect in a relatively serious matter and a person who had deliberately chosen the course of action he was pursuing. By contrast, Ms. Ginter is described as a law-abiding, non-political, family-oriented individual with no criminal record. The plaintiff concludes: The issue of whether or not plaintiff in fact has a civil rights cause of action is not inextricably linked to whether or not, by speculation, the deceased subject may have had a cause of action if he had survived. The Court is convinced on the basis of all the submissions of the parties that there are no genuine issues of fact with respect to Mr. Blasingame’s and Mr. Knox’s claims of qualified immunity. Ms. Ginter has not brought the Court’s attention to any clearly established law which movants’ conduct on June 3, 1983, violated. The claims against Mr. Blasingame and Mr. Knox must therefore be dismissed. In Steele v. City of Houston, 603 S.W.2d 786, police officers caused the destruction of plaintiff’s home and belongings while attempting to recapture three escaped convicts who had without permission taken refuge in the house. It was alleged that persons in the Police Department discharged incendiary material into the residence in a manner designed to cause, and for the purpose of causing, the residence to catch fire. They also alleged that after the Houston Fire Department arrived, the police officers prevented the Fire Department from putting out the fire. The case discusses at length the Texas law with respect to the civil liability for such actions but the important language for our purposes is found in the concluding paragraph of the opinion which states: The city argues that the destruction of the property as a means to apprehend escapees is a classic instance of police power exercise for the safety of the public. We do not hold that the police officers wrongfully ordered the destruction of the dwelling; we hold that the innocent third parties are entitled by the Constitution to compensation for their property. (Emphasis added.) On the issue of qualified immunity, the Steele case could be used to argue that the alleged acts of the movants, even assuming they ordered the “burn out,” (which is denied) would have been lawful under the uncontradicted facts and circumstances. The parties have not brought the Court’s attention to any clearly established law to the contrary, and the Court’s independent research has found none. The courts may, in response to such police tactics as were publicized in relation to the effort to apprehend persons in the M.O. V.E. Headquarters in Philadelphia, PA in 1985, conclude that such methods under such circumstances would violate the constitutional rights of the persons harmed. Indeed, courts might hold on the basis of the facts in this case that the use of fire to “burn out” a fugitive would violate the constitutional rights of the fugitive Kahl. But the point is that no such court had so held prior to June 3, 1983. By its letter of January 29, 1986, to the attorneys for the parties, the Court, sua sponte, raised another issue and asked for the parties’ views thereon. As you know the defendants have claimed that the plaintiff’s claim is barred by the doctrine of collateral estoppel. There is a possible aspect of that claim that has not been briefed by the parties. As I understand it, the plaintiff, Ms. Ginter, was indicted for harboring Mr. Kahl, and that she was convicted of that charge. (I request the government to provide me with a copy of the indictment, a copy of the jury’s verdict, and a copy of the judgment and commitment order.) The question I am raising and which I wish you to brief is: whether public policy requires the denial of Ms. Ginter’s claim for the recovery for the loss of her property because of her violation of the law in harboring Mr. Kahl. In other words, had Ms. Ginter not harbored Mr. Kahl in her home, the necessity of apprehending him therein would not have occurred nor would her property have been placed at risk. Should not public policy deny the use of the courts to a person such as Ms. Ginter who, by virtue of her conviction, is found to be essentially in pari delicto with Mr. Kahl? Ms. Norma Ginter was indicted on two counts of a three-count indictment filed on June 21, 1983. The first paragraph of the first count charges as follows: That from on or about the last week in February, 1983 and continuing through June 3, 1983, in the Western District of Arkansas, Harrison Division, and elsewhere, LEONARD G. GINTER, NORMA GINTER, ARTHUR H. RUSSELL, ED UDEY, IRENE UDEY, and other individuals unknown-to the Grand Jury, did unlawfully and wilfully combine conspire and agree together and with each other to commit an offense against the United States, that is to violate 18 U.S.C. Section 1071 by harboring and concealing Gordon Kahl who was a fugitive from justice and was evading arrest and apprehension. The second count against Ms. Ginter (Count III) charges as follows: On or about May 30, 1983, in the Western District of Arkansas, Harrison Division, LEONARD G. GINTER and NORMA GINTER, aiding and abetting each other, having notice and with knowledge that a warrant had been issued for the apprehension of Gordon Kahl under the provisions of a law of the United States on a charge of violating Title 18, United States Code, Section 1111, a felony, and after having notice and with knowledge that Gordon Kahl was, in fact, a fugitive and was evading arrest and apprehension under said warrant, wilfully and for the purpose of preventing his discovery and arrest on said warrant did harbor and conceal Gordon Kahl in the Ginter vehicle, in that the Ginters obtained and rendered to Gordon Kahl transportation, sustenance and services, in violation of 18 U.S.C. Section 1071. Ms. Ginter was found guilty by a jury on both counts. The Judgment/Commitment Order states her sentence to be as follows: The defendant, Norma Ginter, is hereby committed to the custody of the Attorney General of the United States, or his authorized representative for a term of five (5) years on each of Counts I and III of the indictment; and on condition that the defendant be confined in a jail type or treatment institution for the period of time already served, the execution of the remainder of the sentence of imprisonment on each count is hereby suspended and the defendant is placed on probation for a period of five (5) years. The facts and circumstances surrounding the attempt to apprehend Mr. Kahl on June 3, 1983, are set forth in the affidavits filed in support of the motion for summary judgment. In the case of U.S. v. James Lee Smith, 659 F.2d 97 (8th Cir.1981), the facts are stated by the court of appeals as follows: An agent of the Drug Enforcement Agency (DEA) contacted Smith in July of 1976, after the DEA learned that Smith would be interested in buying a quantity of hashish. Smith stated he desired to purchase thirty pounds of hashish and could pay $25,000 immediately and would be able to pay the balance of the $39,000 total price within a few days. Smith and another DEA agent met at a Des Moines hotel on July 22, 1976, to exchange the cash for the hashish. In the parking lot, the two first went over to the agent’s car and the agent showed Smith the hashish contained in a briefcase. After Smith looked at it, the agent requested to see the money so the two men walked over to Smith’s ear. Smith opened the trunk and a briefcase in it which contained a brown envelope. Smith indicated that the $25,000 was in the envelope. The agent opened the envelope and saw that it did contain some money. Because Smith wanted to test the hashish, the two men returned to the agent’s car. The agent opened a brown suitcase holding two cardboard boxes full of phone books and represented that the boxes held the remainder of the hashish. The agent did not let Smith open the boxes and told Smith that he had to have control of the money before he would give up the hashish. The men agreed to put their cars side by side and Smith said he would test the hashish in the agent’s car while the agent counted the money in Smith’s car. While the agent examined the money, he saw Smith trying to open the suitcase full of phone books. When Smith asked the agent for the keys to the suitcase, the agent got out of Smith’s car and arrested him. After Smith pled guilty to several drug offenses, he was sentenced to prison and fined. He served his sentence and paid the fine. The government kept possession of Smith’s automobile through statutory procedures. No forfeiture proceedings were instituted regarding the $25,000, but the government also kept possession of it. The government filed a declaratory action seeking a ruling that the money was the property of the United States. Smith filed a cross motion for summary judgment claiming entitlement to the $25,000. The district court entered summary judgment in favor of Smith and the government appealed. The lower court in Smith was of the opinion that the forfeiture statutes provide the only method by which the government may retain such money. It rejected the illegal contract theory. The Eighth Circuit reversed, relying upon U.S. v. Farrell, 606 F.2d 1341 (D.C.Cir.1979). The Eighth Circuit held as follows: (2) This case is indistinguishable from United States v. Farrell, supra, 606 F.2d at 1341, and we follow that court’s well-reasoned opinion. Farrell placed $5,000 on a counter before an undercover officer in the mistaken belief that the officer would give him heroin in return. Id. at 1343. The Farrell court was confronted with the same issue that is before us: “The issue here is whether the Government may retain the money after Farrell has been convicted.” Id. at 1347. The court noted that “[cjourts will not aid those whose cause of action is based upon an illegal act” and that “denying recovery to one who transgresses positive law is thus based on public policy.” Id. at 1349. Utilizing those general principles, the court denied Farrell the aid of the courts and the government was allowed to keep possession of the money. We reach this result * * * because it is contrary to public policy to permit the courts to be used by the wrongdoer Farrell to obtain the property he voluntarily surrendered as part of his attempt to violate the law. If as the cases hold it is sound public policy to deny the use of the courts to persons in pari delicto who seek the return of illegally paid money, a fortiori it is sound public policy to deny the aid of the courts to a single violator of the law who seeks the return of money paid to a government agent in an attempt to contract for the purchase of contraband drugs. * * * * [Tjhis case is more properly disposed of by an application of the narrow rule that public policy will not permit the courts to be used to aid a wrongdoer to recover money paid to induce an illegal contract. Id at 1350. As in Farrell, public policy requires us to deny Smith the aid of the courts in his efforts to regain the $25,000 he used to induce an illegal contract to purchase hashish. We accordingly reverse the judgment of the district court and order that summary judgment be entered in favor of the government. Here Ms. Ginter was convicted of conspiring to violate 18 U.S.C. § 1071 “by harboring and concealing Gordon Kahl who was a fugitive from justice and was evading arrest and apprehension.” In a conspiracy, each of the conspirators is considered to be the agent of the others. The conspiracy is alleged to have occurred from the last week in February 1983 and continuing “through June 3, 1983.” Furthermore, Ms. Norma Ginter was convicted of a violation of section 1071 for acts occurring “on or about May 30, 1983.” Defendants’ counsel in his response to the Court’s inquiry of January 29, 1986, points out that Judge Waters, in sentencing Ms. Ginter, stated that the Court did not believe that Ms. Ginter did much other than be a good wife in “a good old-fashioned sort of way.” He also points out the evidence tended to show that Ms. Ginter tried to disassociate herself from acts of her husband in harboring Mr. Kahl. However, the jury resolved those issues against her. The Court is of the opinion and concludes that it would be contrary to public policy to permit Ms. Ginter to recover for her lost property. It was the harboring of Mr. Kahl which occasioned the necessity for the actions which occurred on June 3, 1983. Ms. Ginter argues that she was not, in any event, in the act of harboring Mr. Kahl at the time of the fire or the shooting. Indeed, she was in custody at the time. Nevertheless, the very real and clearly foreseeable consequence of her involvement in the harboring continued. So Ms. Ginter is not only barred from pursuing the case because of the qualified immunity of Mr. Blasingame and Mr. Knox but also because it would be against public policy to permit her to proceed against said defendants under the facts and circumstances set forth above. The government urges several other bases for the dismissal of the complaint against the defendants Blasingame and Knox and/or the granting of the motion for summary judgment in their favor. The Court will not discuss these issues at length in view of its previous rulings. The government contends that the complaint fails to state a claim upon which relief can be granted under Title 42 U.S.C. § 1983 or § 1985. The plaintiff has specifically stated that she is not raising a claim under section 1985. The government contends that section 1983 is not applicable to federal officials. The plaintiff responds that they were acting pursuant to a state search warrant and were therefore acting “under color of state law.” It is recognized that private persons can be held under section 1983 if they conspire with or act in concert with state officers. But here we are not dealing with private persons. We are dealing with two FBI agents who were clearly, under the submissions of the parties, carrying out their duties as federal law enforcement officers. As indicated above, the Court has concluded that the conspiracy allegations, fairly read, are completely inadequate to state a claim against either of these federal officers. See Arsenaux v. Roberts, 726 F.2d 1022, 1024 (5th Cir.1982). The Court therefore concludes that the plaintiff may only proceed against these federal officers under a Bivens type action. Under both Bivens and section 1983, the FBI agents cannot be held liable simply on the theory of respondeat superior. Also the principles of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) apply in a Bivens type action just as they do in a section 1983 action. See Lehman v. Weiss, 454 U.S. 807, 102 S.Ct. 80, 70 L.Ed.2d 76 (1981), vacating, 642 F.2d 265 (9th Cir.1981), on remand, 676 F.2d 1320 (9th Cir.1982). It does appear to the Court that the government is correct when it asserts that, while due process ordinarily requires a pre-deprivation notice and hearing, nevertheless when there is a necessity for quick action or the impracticality of providing any meaningful pre-deprivation process, then the due process requirements could be satisfied if there is a meaningful means by which to assess the propriety of the officers’ actions at sometime after the event. It is the government’s contention that both the state of Arkansas and the federal law provide the plaintiff with such remedies. See Ark.Stat. 41-1954 and the Federal Tort Claims Act. One final word. The Court is somewhat uncomfortable in not permitting the plaintiff to conduct discovery in this case with respect to her claims against the movants, Mr. Blasingame and Mr. Knox. However, the Court is convinced that it would not be vindicating the policy of the Supreme Court as announced in Harlow and many other cases, if it permitted discovery to go forward under the facts and circumstances of this case. The Supreme Court has noted that “substantial costs attend the litigation of the subjective good faith of government officials” (Harlow, 457 U.S. pp. 816-17, 102 S.Ct. at 2737-38). The Court went on to state: Not only are there the general costs of subjecting officials to the risks