441 F.2d 1196 (10th Cir. 1971), 455-70, Palacios v. Foltz

Docket Nº:455-70.
Citation:441 F.2d 1196
Party Name:Manuel PALACIOS, as next friend of Pedro Palacios, an infant, Plaintiff-Appellant, v. Harry B. FOLTZ and Edward Fernandez, Defendants-Appellees.
Case Date:May 10, 1971
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1196

441 F.2d 1196 (10th Cir. 1971)

Manuel PALACIOS, as next friend of Pedro Palacios, an infant, Plaintiff-Appellant,

v.

Harry B. FOLTZ and Edward Fernandez, Defendants-Appellees.

No. 455-70.

United States Court of Appeals, Tenth Circuit.

May 10, 1971

Page 1197

Anthony F. Avallone, Las Cruces, N.M., for plaintiff-appellant.

R. R. Regan, Las Cruces, N.M. (J. D. Weir, Las Cruces, N.M., with him on the brief), for defendants-appellees.

Before LEWIS, PICKETT and ADAMS, [*] Circuit Judges.

PICKETT, Circuit Judge.

This action was brought in behalf of Manuel Palacios, a student at Las Cruces High School, Las Cruces, New Mexico, against Foltz and Fernandez, the school principal and vice principal, for an injunction and damages arising out of an alleged violation of the Civil Rights Act, 42 U.S.C. § 1983. 1 The basis of the claim according to the allegations of the Complaint is that 'the defendants acting as the 'principal's office' under color of State law, since the Las Cruces High School is a public school established and maintained by the laws of the State of New Mexico, refused to permit the infant plaintiff to run for office of co-president' of the student council. The trial court denied the injunction and dismissed the action for lack of jurisdiction. 2 We affirm.

The essential elements of a cause of action under § 1983 are (1) that the conduct complained of was by a person acting under color of state statutes or local law, custom or usage, and (2) while so acting, deprived another of rights, privileges or immunities secured by the Constitution and laws of the United States. Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Stringer v. Dilger, 313 F.2d 536, 540 (10th Cir. 1963). The federal courts have jurisdiction only when the acts depriving a person of constitutional rights are committed under color of state authority, Browns v. Mitchell, 409 F.2d 593 (10th Cir. 1969); Unless, of course, an individual is a wilful participant in joint activities with the state or its agents. Adickes v. S. H. Kress & Co., supra, 152, 90 S.Ct. 1605. We conclude in this case that neither of the two necessary ingredients of a cause of action under § 1983 are alleged in the Complaint.

The allegations purporting to show the nature of the state's involvement in a student high school election are that the Las Cruces High School is a public school established and maintained by the laws of the State of New...

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