620 F2d 52 Livingston v. Western Surety Company

620 F.2d 52

William Kyle LIVINGSTON, Jr., Plaintiff-Appellant,

No. 78-2820.

United States Court of Appeals,
Fifth Circuit.

June 23, 1980.

Travis Buckley, Laurel, Miss., for plaintiff-appellant.

Rushton, Stakely, Johnston & Garrett, Charles A. Stakely, James T. Upchurch, III, Montgomery, Ala., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before GODBOLD, TJOFLAT and SAM D. JOHNSON, Circuit Judges.


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This case is an effort to sue a surety on its bond as a civil rights action under 42 U.S.C. § 1983 (1976). Western Surety Company is the surety on a $10,000 bond guaranteeing faithful performance of duty by the Attorney General of Alabama, William J. Baxley, during his term of office. The jurisdiction of the district court was invoked pursuant to 28 U.S.C. §§ 1331 and 1343 (1976). The complaint alleged that Baxley and others conspired to deprive Livingston of his freedom under color of state law through maliciously prosecuting him on a murder charge and committing perjury in connection therewith, and that the conspiracy was consummated. Livingston alleged that he was falsely imprisoned and required to stand trial for murder and was found not guilty. Livingston did not allege any wrongdoing, participation, or even knowledge, on the part of the surety. Its liability was charged solely on the terms of the bond.


The complaint was subject to dismissal for failure to state a claim. This was not a pendent state claim asserted in a § 1983 suit against a state officer. The sole defendant is the surety. It was not alleged that the surety, acting under color of state law, in any way subjected Livingston "to the deprivation of any rights, privileges or immunities secured by the Constitution and laws" of the United States. No authority is shown to us permitting a suit such as this under § 1983, and we find none.