421 F.2d 555 (6th Cir. 1970), 18977, Sheppard v. E. W. Scripps Co.

Docket Nº:18977.
Citation:421 F.2d 555
Party Name:Samuel H. SHEPPARD, Plaintiff-Appellant, v. The E.W. SCRIPPS COMPANY, Louis B. Seltzer, Samuel R. Gerber, Defendants-Appellees.
Case Date:January 21, 1970
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 555

421 F.2d 555 (6th Cir. 1970)

Samuel H. SHEPPARD, Plaintiff-Appellant,

v.

The E.W. SCRIPPS COMPANY, Louis B. Seltzer, Samuel R. Gerber, Defendants-Appellees.

No. 18977.

United States Court of Appeals, Sixth Circuit.

January 21, 1970

Page 556

Gerald Alch, Boston, Mass., for appellant; F. Lee Bailey, Boston, Mass., Benjamin L. Clark, Columbus, Ohio, Russell A. Sherman, Elyria, Ohio, on brief.

Dwight B. Buss, Cleveland, Ohio, for appellees, The E. W. Scripps Company and Louis B. Seltzer; Parker M. Orr, Don G. Pace, Baker, Hostetler & Patterson, Cleveland, Ohio, on brief.

John L. Dowling, Asst. Pros. Atty., Cleveland, Ohio, for appellee, Samuel R. Gerber; John T. Corrigan, pros. Atty., of Cuyahoga County, A. M. Braun, Adam P. Angelas, Asst. Pros. Attys., Cleveland, Ohio, on brief.

Before PECK, McCREE and COMBS, Circuit Judges.

JOHN W. PECK, Circuit Judge.

The complaint filed in the District Court in this action alleges a deprivation of constitutional rights and seeks recovery of damages under the provisions of 42 U.S.C. § 1983. The complaint alleges the murder of plaintiff's wife July 4, 1954, and his arrest, indictment, trial and conviction therefor. Recovery is sought from the publisher of a newspaper, its editor and the local county coroner, hereinafter referred to as Gerber. It is alleged that as a result of conspiratorial conduct of the defendants during the investigatory and trial proceedings culminating in his conviction plaintiff was deprived of a fair trial, due process of law and the rights, privileges and immunities secured to him by the United States Constitution. The judgment of conviction was subsequently vacated by the Supreme Court and the cause remanded for a new trial in the state court, which resulted in a verdict of acquittal. In the present action, the District Court sustained the defendants' motion to dismiss the complaint, and this appeal was perfected from the order granting that motion.

Early in its opinion, the District Court offers this observation:

'At the outset, this court determines that the complaint must fail in its entirety if, for any reason, it is insufficient to state a claim as to Gerber, for, since defendants Scripps and Seltzer are chargeable only as private citizens and cannot be said to act 'under color of any State Law,' it is clear from nearly a hundred years of case law that the Civil Rights Act, affording protection against deprivation of civil rights by state action, is not applicable to them, absent a conspiracy with one so acting.'

We are in accord with this expression. See Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1947); In re Civil Rights Cases, 109 U.S. 3, 17, 3 S.Ct. 18, 27 L.Ed. 835 (1883); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); Cooper v. Wilson, 309 F.2d 153 (6th Cir. 1962); Jones v. Alfred H. Mayer Company, 255 F.Supp. 115 (E.D.Mo.1966).

In his brief appellant states that the decision of the District Court appealed from was predicated upon two conclusions of law, namely that the complaint did not allege conduct by Gerber 'under color of law,' and that Gerber's position as coroner was quasi-judicial in character, affording him immunity. While it is true that the opinion of the District Court deals with these two issues at length, that opinion further resolves a third issue adversely to appellant in this language: 'Nothing Gerber is alleged to have done under color of law could properly be said to be the cause of any deprivation of rights the plaintiff allegedly suffered.' If this is true, whether or not the acts were done under color of law obviously becomes immaterial.

The issue as to whether Gerber's acts were the cause of the alleged constitutional deprivation has been passed upon by the Supreme Court in the opinion resulting in the vacation of appellant's conviction

Page 557

and the remand for retrial (Sheppard v. Maxwell, 384...

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