411 F.2d 9 (5th Cir. 1969), 27068, Granville v. Hunt

Docket Nº:27068
Citation:411 F.2d 9
Party Name:A. D. GRANVILLE, Petitioner-Appellant, v. W. B. HUNT et al., Respondents-Appellees.
Case Date:May 19, 1969
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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411 F.2d 9 (5th Cir. 1969)

A. D. GRANVILLE, Petitioner-Appellant,

v.

W. B. HUNT et al., Respondents-Appellees.

No. 27068

United States Court of Appeals, Fifth Circuit.

May 19, 1969

Page 10

A. D. Granville, pro se.

Earl Faircloth, Atty. Gen., of Florida, James Robert Yon, Asst. Atty. Gen., Tallahassee, Fla., for appellees.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

GOLDBERG, Circuit Judge:

This appeal is taken from an order dismissing a Florida prisoner's complaint for both monetary and injunctive relief under 42 U.S.C.A. § 1985(3). 1 The prisoner has appealed pro se and, as is not uncommon in such situations, he has presented his allegations in a manner which is disjointed and difficult to follow. 2 Recognizing that the appellant is unschooled in the intricacies of pleading and procedure, we have construed his papers with liberality in order to determine whether the complaint was properly dismissed for failure to state a cause of action. Even stretching liberality to its apogee, we must conclude that the action of the district court was free from error. We therefore affirm.

As grounds for the above requested remedies, the appellant alleged that during his incarcerations in the Florida State Prison he was improperly classified as medically fit to do heavy manual labor and that he was placed in the 'hole' when he refused to perform his

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assigned tasks. Presently out of the 'hole,' he urges that these actions constituted cruel and unusual punishment. He further alleges that the various named and unnamed defendants, personnel of the Florida Division of Corrections, conspired by these actions to deprive him of his Constitutional rights. No relevant facts in support of these allegations appear in any of the appellant's papers.

The elements which must be alleged in order to state a cause of action under 42 U.S.C.A. § 1985(3) were concisely stated in Huey v. Barloga, N.D.Ill. 1967, 277 F.Supp. 864, 868, as follows:

'* * * The elements necessary for a cause of action under the 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. * * *'

Examining the appellant's filings in the light of this standard, we find that the appellant failed to allege that the defendants purposely intended to discriminate against him and failed to allege any facts tending to show such an intent to discriminate. This omission alone would be fatal. See Norton v. McShane, 5 Cir. 1964, 332 F.2d 855, 863, cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 ('To come within this statute, plaintiffs would have to allege facts amounting to intentional and purposeful discrimination to the plaintiffs individually or as members of a class.').

However, we find another error which is also fatal even under the liberal federal pleading rules. The appellant has failed to allege any facts showing either the existence or the execution of the claimed conspiracy. The pleadings contain only bare allegations that the defendants conspired against the appellant and that as a result of this conspiracy, he was subjected to cruel and unusual punishment. These allegations contain mere bare bones and are totally without any fleshing to show a link between the alleged conspirators. They also fail 'to allege any overt acts related to the promotion of the claimed conspiracy.' Huey v. Barloga, supra, 277 F.Supp. at 871. In short, the pleadings are merely conclusional and are completely without factual underpinnings. Such pleading is clearly insufficient. 'Although pleadings are given a liberal construction in the federal courts, the Rules contemplate some factual statement in support of the claim. General allegations of this kind unsupported by any factual statements have generally been rejected as insufficient.' Id. 'The complaint must do more than merely state vague and conclusionary allegations respecting the existence (and operation) of a conspiracy.' Lombardi v. Peace, S.D.N.Y. 1966, 259 F.Supp. 222, 226. See also Tyree v. Smith, E.D.Tenn. 1968, 289 F.Supp. 174, 178; Friedman v. Younger, C.D.Calif. 1968, 282 F.Supp. 710, 713; O'Hara v. Mattix, W.D.Mich. 1966, 255 F.Supp. 540, 542; cf. Williams v. Dunbar, 9 Cir. 1967, 377 F.2d 505, 506, cert. denied, 389 U.S. 866, 88 S.Ct. 131, 19 L.Ed.2d 137; Duzynski v. Nosal, 7 Cir. 1963, 324 F.2d 924. Clearly the district court was correct in dismissing the appellant's complaint for failure to state a cause of action.

If we stretched constructional liberality beyond its normal bounds and construed the prisoner's papers as a petition for a writ of habeas corpus, we would still be unable to give him any relief. He has failed, inter alia, to allege that he has exhausted his available state remedies or that there are no such remedies presently available to him. Such exhaustion has been made by Congress a condition which must be satisfied prior to the granting of the writ by a federal court:

'An application for a writ of habeas corpus in behalf of a person in custody

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pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that...

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