388 F.Supp. 445 (D.Mass. 1975), Civ. A. 74-1908, Hahn v. Sargent

Docket Nº:Civ. A. 74-1908
Citation:388 F.Supp. 445
Party Name:Hahn v. Sargent
Case Date:January 10, 1975
Court:United States District Courts, 1st Circuit, District of Massachusetts
 
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Page 445

388 F.Supp. 445 (D.Mass. 1975)

Robert C. HAHN, Plaintiff,

v.

Francis W. SARGENT et al., Defendants.

Civ. A. No. 74-1908-T.

United States District Court, D. Massachusetts.

Jan. 10, 1975

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Alex Prasinos, pro se.

Kenneth Behar, Asst. Atty. Gen., Boston, Mass., for defendants.

Morrison, Mahoney & Miller, Alan H. Robbins, Boston, Mass., for defendant Miller.

Reade, O'Rourke & Marino, Francis J. O'Rourke, Braintree, Mass., for plaintiff.

Michael Eby, Deputy Asst. Atty. Gen., Boston, Mass., for defendants Quinn, Irwin and Rowe.

Paul B. Galvani, and Thomas G. Dignan, Jr., Sp. Asst. Attys. Gen., Boston, Mass., for defendants William I. Cowin and John G. Ryan.

Hiller B. Zobel, Sp. Asst. Atty. Gen., Boston, Mass., for defendant Francis W. Sargent.

Alfred J. DiSciullo, Jr., Boston, Mass., for defendant Wendell Berman.

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OPINION AND ORDER

TAURO, District Judge.

Plaintiff, a former chairman of the Republican State Committee, brings this action against nine defendants whom he alleges acted individually, or with varying degrees of cooperation, to deprive him of his rights under the First and Fourteenth Amendments to the United States Constitution. The nine defendants and the positions they held during the period of time covered by this complaint are:

Francis W. Sargent, Governor of Massachusetts; Robert H. Quinn, Attorney General of Massachusetts; William I. Cowin, Secretary of Consumer Affairs; John G. Ryan, Commissioner of Insurance; John J. Irwin, Assistant Attorney General; Harvey F. Rowe, Assistant Attorney General; Wendell Berman, Holder of the Controlling Interest, Rockland Mutual Insurance Company; 1 Alan G. Miller, General Counsel, Rockland Mutual Insurance Company; Alex Prasinos, Trial Counsel, Rockland Mutual Insurance Company.

Jurisdiction is based on 28 U.S.C. § 1343. Each of the amended complaint's four counts alleges violation of a different section of Title 42 of the United States Code (viz: §§ 1983, 1985(2), 1985(3), 1986). The defendants have each moved to dismiss the amended complaint or, in the alternative, for summary judgment. On December 13, 1974, after an extended hearing, defendants' motions were taken under advisement. 2

According to the allegations of the complaint, plaintiff was elected Massachusetts Republican State Chairman in November, 1971. In mid-February, 1972, he met at least once with the defendant Commissioner Ryan to express his interest in a pending application of the Rockland Mutual Insurance Company to write bodily-injury automobile liability insurance in the Commonwealth.

On February 28, 1972, following his meeting with Ryan, plaintiff and Attorney James T. Kirk, now deceased, reported to the defendant Berman, of Rockland Mutual, that the company's application prospects appeared favorable. Berman, however, had never requested that plaintiff intercede with respect to the company's application and reported plaintiff's activities to defendant Miller, Rockland's General Counsel.

On March 2, 1972, Miller received a copy of Ryan's tentative decision granting the Rockland application, subject to a number of conditions. 3 The next day, Miller met with Ryan and expressed his distress at the activities of Hahn and Kirk. Ryan reported this conversation to his superior, Secretary Cowin, who met personally with Miller and Berman on March 16. During that meeting, Miller and Berman claimed that plaintiff had demanded Berman pay him $75,000.00 in cash and also purchase $5,000.00 worth of tickets to political fund-raising events, apparently as compensation for his services.

A few weeks later, on March 31, 1972, Ryan re-opened the hearing on the Rockland

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application. 4 At this hearing, Cowin testified as to his conversations with Miller and Berman. Final approval of the Rockland application was announced by Commissioner Ryan on May 31, 1972.

Sometime after his meeting with Berman and Miller, but before Ryan re-convened the Rockland hearings, Cowin submitted a written report on the alleged activities of plaintiff and Kirk to Governor Sargent who, in turn, transmitted the information to Attorney General Quinn. After an investigation by the Attorney General's office, plaintiff and Kirk were indicted in mid-June, 1972 by a Suffolk County Grand Jury for their alleged activities in connection with the Rockland application. Both were acquitted on March 5, 1974, following a Superior Court bench trial.

Plaintiff was defeated for re-election as Republican State Chairman in May, 1972.

Plaintiff now brings this action charging that the activities of the defendants which led to his indictment constituted violations of his constitutional rights. He broadly alleges that he was the victim of malicious prosecution, knowing use of false and perjured testimony, deliberate suppression of exculpatory evidence and 'intentional conspiracy.' He seeks $6,000,000.00 compensatory and $2,000,000.00 punitive damages, as well as costs.

I

Each defendant seeks dismissal of counts 3, 2 and 4 (for purposes of convenience they will be discussed in that order) on grounds that the plaintiff is not within the class of persons protected by the provisions of the Civil Rights Act cited therein. This court agrees.

Count 3 alleges that the defendants' activities give the plaintiff a claim under 42 U.S.C. § 1985(3). In order to come within the terms of that section, however, plaintiff must allege that the defendants did (1) 'conspire or go in disguise on the highway or on the premises of another' and (2) did so 'for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.' Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). Count 3, however, is devoid of any such allegations.

Indeed, the basis of count 3 is that the plaintiff as an individual was singled out for harm by these defendants because of his 'militant republicanism' as opposed to any allegation that the defendants' activities were based upon racial or 'otherwise class-based, invidiously discriminatory animus.' 403 U.S. at 102, 91 S.Ct. at 1798; Bricker v. Crane, 468 F.2d 1228, 232-33 (1st Cir. 1972). See Hughes v. Ranger Fuel Corporation, 467 F.2d 2 (4th Cir. 1972).

Count 2 also fails to state a claim on which relief can be granted. It alleges that the defendants conspired to obstruct justice in order to deprive the plaintiff of equal protection of the laws in violation of 42 U.S.C. § 1985(2). The courts which have faced the question, however, have recognized that § 1985(2) and § 1985(3) are 'kindred sections of a common statutory scheme' (Phillips v. Singletary, 350 F.Supp. 297, 302 (D.S.C.1972)) and that racial or class-based discrimination is a condition precedent to invoking either provision. Kerckhoff v. Kerckhoff, 369 F.Supp. 1165, 1166 (E.D.Mo. 1974); McIntosh v. Garofalo, 367 F.Supp. 501, 505 (W.D.Pa.1973); Boulware v. Battaglia, 327 F.Supp. 368, 371 (D.Del.1971); Kitchen v. Crawford, 326 F.Supp. 1255, 1261-1262 (N.D.Ga.1970), aff'd, 442 F.2d 1345 (5th Cir.), cert. denied, 404 U.S. 956, 92 S.Ct. 318, 30 L.Ed.2d 272 (1971). Accordingly, Count 2 must also be dismissed.

Count 4 alleges a claim under 42 U.S.C. § 1986. That section creates an additional cause of action for refusal to take affirmative action in certain circumstances

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to prevent the commission of an act giving rise to a claim under § 1985. No claim lies under § 1986, however, except on the basis of a valid claim under § 1985. Johnston v. National Broadcasting Co., Inc., 356 F.Supp. 904 (E.D.N.Y.1973); Post v. Payton, 323 F.Supp. 799 (E.D.N.Y.1971); Huey v. Barloga, 277 F.Supp. 864 (N.D.Ill.1967). Because the amended complaint does not state a valid claim under § 1985 it cannot state one under § 1986. For that reason Count 4 must also be dismissed.

II

Count 1 alleges that the...

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