277 F.Supp. 864 (N.D.Ill. 1967), 67 C 906, Huey v. Barloga

Docket Nº:67 C 906.
Citation:277 F.Supp. 864
Party Name:Isaac HUEY, as Legal Representative of Jerome Huey, Deceased, Plaintiff, v. Joseph BARLOGA, John Karner, Ted Zaremba, Otto Danick, Ben Darda, Roland Brani, Robert Holocek, Christy Berkos, Stanley Pera, J. F. Kimbark, Frank Mungai, Frank Murin and Joe S. Kral, Defendants.
Case Date:December 27, 1967
Court:United States District Courts, 7th Circuit, Northern District of Illinois

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277 F.Supp. 864 (N.D.Ill. 1967)

Isaac HUEY, as Legal Representative of Jerome Huey, Deceased, Plaintiff,


Joseph BARLOGA, John Karner, Ted Zaremba, Otto Danick, Ben Darda, Roland Brani, Robert Holocek, Christy Berkos, Stanley Pera, J. F. Kimbark, Frank Mungai, Frank Murin and Joe S. Kral, Defendants.

No. 67 C 906.

United States District Court, N.D. Illinois, Eastern Division.

Dec. 27, 1967.

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John Fitzgerald, Chicago, Ill., for plaintiff.

John R. Caffery, Clausen, Hirsh, Miller & Gorman, Chicago, Ill., for defendants.


WILL, District Judge.

The plaintiff brings this action under the Civil Rights Act, 42 U.S.C.§ 1985, 1986, seeking the recovery of damages for the death of his son, Jerome Huey. Plaintiff is the legal representative of the deceased. The defendants were the trustees, employees, and agents of the Town of Cicero, Illinois, at the time of Jerome Huey's death. All the parties are citizens of Illinois and jurisdiction is invoked under 28 U.S.C. 1331 and 1343. Pursuant to Rule 12 of the Federal Rules of Civil Procedure, the defendants have filed a motion to dismiss contending (1) the court lacks jurisdiction of the subject matter of the suit, and (2) the complaint fails to state a claim upon which relief can be granted.

The incident which gives rise to this suit occurred on May 25, 1966. Jerome Huey, a negro college student from Chicago, was seeking employment in Cicero. As he was walking along the sidewalk of Laramie Avenue at approximately 10:00 p.m. on his way to the Burlington Railroad Employment offices near 26th Street, a group of four or more white youths attacked him and beat him with

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their fists and a baseball bat. Huey was seriously injured about his face, head and body as a result of this assault. Four days later he died from these injuries.

The complaint is drawn in two counts. The first asserts an action under 42 U.S.C.§ 1985(3) for a civil conspiracy to violate Jerome Huey's constitutional rights. The relevant portions of the first count allege: that the defendants knew or, by the exercise of reasonable care, should have known that the presence of negroes on the public streets of Cicero constituted a hazard to their personal safety and to public tranquility; that the defendants knew or should have known that large numbers of negroes entered and departed from Cicero daily pursuant to gainful employment; that the defendants were empowered and authorized under the Constitution and the laws of Illinois to prevent or aid in preventing the denial of equal protection of the laws to Jerome Huey because of his race; that the defendants could have secured the same privileges and immunities that are secured to white persons in Cicero by the exercise of reasonable diligence; that the defendants acting in concert wrongfully neglected to prevent or aid in preventing the commission of wrongs against Jerome Huey; and that the conspiracy of defendants, wilfully acting or omitting to act, in concert, allegedly deprived Jerome Huey of his right to peaceably travel the streets of Cicero with the same freedom as is secured to white persons.

The second count allegedly asserts an action under 42 U.S.C. § 1986 for damages to the next of kin of Jerome Huey. It reasserts the allegations in the first count and, in addition, alleges that the wrongful neglect of the defendants was the direct and proximate cause of the death of Jerome Huey.

The Question of Jurisdiction

In the federal courts, the plaintiff is entitled to choose the theory upon which he will base his claim. Where the complaint is drawn to seek recovery under the Constitution or laws of the United States, the district court must assume jurisdiction under 28 U.S.C. § 1331 and make a determination on the merits of the claim. The only exceptions to this principle are where the alleged claim appears to be immaterial and solely for the purpose of obtaining jurisdiction or where the claim is wholly insubstantial and frivolous. Bell v. Hood, 327 U.S. 678, 682-683, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Similarly, where a complaint is so drawn as to seek recovery for any wrong specified in 28 U.S.C.§1343, the district court must assume jurisdiction with the same possible exceptions. Agnew v. City of Compton, 239 F.2d 226, 229 (9th Cir. 1956), cert. denied, 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910 (1957). See, also, Montana-Dakota Utilities Co. v. Northwestern Public Services Co., 341 U.S. 246, 249, 71 S.Ct. 692, 95 L.Ed. 912 (1950).

The complaint in the instant case seeks recovery for an alleged conspiracy to deprive plaintiff of his constitutional rights under the Civil Rights Act, 42 U.S.C.§1985. This is enough to satisfy the jurisdiction requisites for the purposes of both 28 U.S.C. § 1331 and 28 U.S.C. § 1343. The federal claim is not immaterial, but the sole basis of the action.

The Requisites of an Action Under 42 U.S.C. § 1985(3)

The first count of plaintiff's complaint is predicated upon 42 U.S.C.§ 1985(3). The elements necessary for a cause of action under this section are (1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the laws or equal privileges and immunities under the law, (3) a purposeful intent to discriminate, (4) action by the defendants under color of state law or authority, and (5) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in furtherance of the conspiracy. Hoffman v. Halden, 268 F.2d 280, 292 (9th Cir. 1959). Accord, Colon v. Grieco, 226 F.Supp. 414, 418 (N.J.1964);

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Rhodes v. Houston, 202 F.Supp. 624, 637 (Neb.) aff'd 309 F.2d 959 (8th Cir. 1962), cert. denied, 372 U.S. 909, 83 S.Ct. 724, 9 L.Ed.2d 719 (1963). The defendants contend that the complaint fails to allege these requisites.

Under Color of State Law or Authority

The defendants contend that the wrongs committed against Jerome Huey were not committed under color of state law or authority and, therefore, the complaint will not sustain an action under the Civil Rights Act. Although42 U.S.C.§ 1985(3) does not expressly require that the conspiracy be carried out under color of state law, it appears that the Supreme Court in Collins v. Hardyman, 341 U.S. 651, 661-663, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), has restricted the applicability of this section to situations where the alleged deprivation is pursuant to 'state action.' See, also, State of Arkansas for Use and Benefit of Temple v. Central Surety & Insurance Corp., 102 F.Supp. 444, 447 (W.D.Ark.1952).

This limitation is traceable to the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), in which the public accommodations sections of the Civil Rights Act of 1875 were questioned. In holding these provisions unconstitutional the Supreme Court announced that the Fourteenth Amendment was only directed at 'State action of a particular character.' It declared that individual invasions of individual rights were not the subject matter of the amendment, and that 'civil rights, such as are guaranteed by the constitution against state aggression, cannot be impaired by the wrongful acts of individuals unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings.' Id. at 17, 3 S.Ct. at 25. This distinction between purely private discrimination and discrimination pursuant to 'state action' has persisted for over eighty years. Only discrimination which falls within the latter category warrants Fourteenth Amendment protection and falls within the ambit of the Civil Rights Act. See Peterson v. City of Greenville, 373 U.S. 244, 247-250, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963); Lewis, The Sit-In Cases: Great Expectations, 1963 Sup.Ct.Rev. 101, 104-107 (1963). Thus, as the defendants contend, the complaint must be dismissed unless it discloses that the alleged deprivation can be linked to the state.

The gist of the defendants' argument is that the state was not involved in the alleged discrimination. They assert that the acts resulting in Jerome Huey's death and the deprivations of his rights were committed by individuals who were acting independently and without any connection to the defendants. They urge that the suit involves nothing more than discrimination by private citizens.

Taken as a whole, however, the complaint alleges that the defendants, with knowledge of the possibility of racial disorders, conspired to deprive negroes, as a class, of equal protection of the laws by neglecting to provide for their personal safety. The gravamen of the complaint, therefore, is the failure of the defendants to take reasonable measures to prevent forceful discrimination by individuals. Viewed in this context, this suit involves something more than individual discrimination; it also poses the serious question of whether the state and its officers have an affirmative duty to prevent forceful discrimination.

Discrimination basically involves a conflict between the individual interests of liberty and equality--freedom to discriminate versus freedom from discrimination. Peterson v. City of Greenville, 373 U.S. 244, 250, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963). Liberty, in this sense, means the freedom of the individual to govern his own personal relations. Equality involves the principle that each individual ought to be able to enjoy the same rights and the same measure of dignity as other members of society. The Fourteenth Amendment does not attempt to prohibit individual discrimination,

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but only action by the states which is discriminatory. This limitation implicitly involves considerations of the principle of federalism, state versus federal regulation of private conduct. Generally, the state is permitted to remain neutral by choosing to leave this...

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