McNally v. Pulitzer Pub. Co.

• Decision Date: 30 March 1976
• Docket Number: No. 75-1295,75-1295
• Citation: 532 F.2d 69
• Parties: Martin McNALLY, Appellant, v. The PULITZER PUBLISHING COMPANY and Ted Gest, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 69

532 F.2d 69

Martin McNALLY, Appellant, v. The PULITZER PUBLISHING COMPANY and Ted Gest, Appellees.

No. 75-1295.

United States Court of Appeals Eighth Circuit.

Submitted Aug. 15, 1975.

Decided March 5, 1976.

Rehearing and Rehearing En Banc Denied March 30, 1976.

Martin McNally, pro se, and Roger Lee Woods, Inmate Legal Researcher, filing briefs, for appellant.

Robert D. Evans, Robert B. Hoemeke and Michael P. Casey, St. Louis, Mo., filing briefs, for appellees.

Before LAY, STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

Martin McNally, an inmate of the Leavenworth Federal Penitentiary, Leavenworth, Kansas, appeals from the dismissal of Pulitzer Publishing Company and its reporter Ted Gest from his pro se action to redress the alleged deprivation of his civil rights.

McNally was convicted in December, 1972, on two counts of aircraft piracy in violation of 49 U.S.C. § 1472(i), and was sentenced to two concurrent terms of life imprisonment. A direct appeal from the conviction was affirmed by this Court. United States v. McNally, 485 F.2d 398 (8th Cir. 1973), cert. denied, 415 U.S. 978, 94 S.Ct. 1566, 39 L.Ed.2d 874 (1974).

Prior to the aircraft piracy trial, McNally had been incarcerated at the Federal Medical Center at Springfield, Missouri, for a psychiatric examination to determine his competency at that time and at the time of the alleged offense. On November 6, 1972, during the course of a pretrial hearing on motions, the District Court read in open court certain portions of the Medical Center report on McNally's mental capacity. See 18 U.S.C. § 4244. Following this hearing, Gest, a reporter for Pulitzer's Saint Louis Post-Dispatch, obtained a copy of the full medical report from Robert Schneider, who was the Assistant United States Attorney prosecuting the case. On November 15, 1972, the Post-Dispatch published an article quoting several portions of the report which had not been read at the hearing. In summarizing the psychiatric report from the Federal Medical Center staff, the article stated that McNally "suffered from a severe personality disorder" and that he was "of an anti-social type" and may have had "an underlying paranoid process which is not readily apparent at this time". McNally was quoted as having told the staff that he was "a nice decent guy, easy going and easy to get along with" and "a follower, rather than a leader". The article stated that the Medical Center staff had "decided unanimously that McNally was capable of aiding in his own defense". The conclusion of the staff regarding McNally's mental responsibility at the time of the aircraft hijacking, which was mentioned by the District Court during the hearing, was not reported in the article. The statements quoted in the article on the "anti-social type", "the underlying paranoid process", and "a nice decent guy" had not been mentioned by the District Court. ¹

On May 22, 1974, McNally filed a pro se complaint in the United States District Court for the Western District of Missouri seeking relief for the alleged deprivation of his civil rights. McNally first asserted that various abuses had occurred during his pretrial period of incarceration at the Federal Medical Center, and named as defendants the Director of the United States Bureau of Prisons and various officials, doctors, and guards of the Medical Center. A second series of allegations related to the pretrial publication by the Post-Dispatch of the psychiatric report on McNally which had been furnished to reporter Gest by government attorney Schneider. The relief prayed for included compensatory and punitive damages and declaratory relief, as well as a permanent injunction restraining the Post-Dispatch and Gest from "such conduct or similar conduct against the plaintiff".

In an order entered June 5, 1974, the District Court dismissed as moot the challenge to the conditions of confinement during McNally's pretrial incarceration at the Federal Medical Center, which was in the nature of a writ of habeas corpus, since the complaint was filed subsequent to his release from that facility. ² Pulitzer then moved to dismiss the remainder of the action, asserting several grounds including that of improper venue. McNally filed a response resisting this motion, and included an allegation that, in addition to stating a cognizable claim for the deprivation of his civil rights, the facts in the complaint stated a claim in tort over which the District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. ³ The District Court denied Pulitzer's motion to dismiss, but ordered a change of venue to the Eastern District of Missouri pursuant to 28 U.S.C. § 1406(a).

Upon transfer of the case to the Eastern District, Pulitzer renewed its motion to dismiss in that court. McNally filed a motion to transfer that part of the action not involving Pulitzer and Gest back to the Western District of Missouri. On April 7, 1975, the District Court ⁴ dismissed the action as to Pulitzer and Gest on the ground that McNally had failed to allege any racial or other class-based discrimination and thus had not stated a cause of action under the applicable civil rights statute reaching private conduct, 42 U.S.C. § 1985(3). This order made no reference to McNally's assertion of diversity jurisdiction or any other possible claim for relief. Since the remaining defendant, Schneider, was a resident of the Western District, McNally's motion for a retransfer of the action to that district was granted, and there is no indication that this litigation has reached a conclusion in that district. McNally takes this appeal from the order of the Eastern District Court dismissing defendants Pulitzer and Gest. We affirm for the reasons stated below.

I

The order dismissing defendants Pulitzer and Gest did not resolve the rights and liabilities of all parties; indeed, the action apparently continues as to defendant Schneider upon its return to the Western District of Missouri. The order was thus not a final decision within 28 U.S.C. § 1291. Since the District Court below did not proceed under Fed.R.Civ.P. 54(b) to render (1) "an express determination that there is no just reason for delay" and (2) "an express direction for the entry of judgment", this Court is without jurisdiction unless the order is of a type permitted interlocutory review by statute. See Lane v. Graves, 518 F.2d 965 (8th Cir. 1975); Wooten v. First National Bank, 490 F.2d 1275, 1276 (8th Cir. 1974).

28 U.S.C. § 1292(a)(1) expressly extends appellate jurisdiction to "(i) nterlocutory orders of the district courts * * * granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions * * * ." McNally's complaint sought injunctive relief solely against defendants Pulitzer and Gest, seeking a permanent injunction to restrain "such conduct or similar conduct against the plaintiff". Thus, since the District Court dismissed from the action the only defendants against whom injunctive relief was sought, the order is effectively a denial of the injunctive relief sought by McNally, and is therefore appealable pursuant to 28 U.S.C. § 1292(a)(1). See Build of Buffalo, Inc. v. Sedita, 441 F.2d 284, 286-87 (2d Cir. 1971); Spangler v. United States, 415 F.2d 1242, 1246-47 (9th Cir. 1969). Cf. Hartmann v. Scott, 488 F.2d 1215, 1219-20 (8th Cir. 1973); Yaffe v. Powers, 454 F.2d 1362, 1364-65 (1st Cir. 1972); Langevin v. Chenango Court, Inc., 447 F.2d 296, 299 (2d Cir. 1971); Brunson v. Board of Trustees, 311 F.2d 107, 108 (4th Cir. 1962), cert. denied, 373 U.S. 933, 83 S.Ct. 1538, 10 L.Ed.2d 690 (1963).

II

An appeal from an order granting or refusing injunctive relief pursuant to 28 U.S.C. § 1292(a)(1) presents for appellate review "the entire order, not merely the propriety of injunctive relief, and * * * the appellate court may consider and decide the merits of the case and may order dismissal of the action." C. Wright, Handbook of the Law of Federal Courts § 102, at 459 (2d ed. 1970). See Deckert v. Independence Shares Corp., 311 U.S. 282, 286-87, 61 S.Ct. 229, 232, 85 L.Ed. 189, 193 (1940); Smith v. Vulcan Iron Works, 165 U.S. 518, 525-26, 17 S.Ct. 407, 410, 41 L.Ed. 810, 812 (1897); Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1067 (2d Cir. 1972); Allstate Insurance Co. v. McNeill, 382 F.2d 84, 87-88 (4th Cir. 1967), cert. denied, 392 U.S. 931, 88 S.Ct. 2290, 20 L.Ed.2d 1390 (1968).

A.

McNally contends that Pulitzer and Gest engaged in a private conspiracy to deprive him of equal protection of the law or of equal privileges and immunities and that their private conduct may therefore be challenged pursuant to 42 U.S.C. § 1985(3). ⁵ In Griffin v. Breckenridge, 403 U.S. 88, 101-02, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338, 347 (1971), the Supreme Court held that 42 U.S.C. § 1985(3) provided such a cause of action against private conspiracies. While it must be determined in each Section 1985(3) action whether a constitutional source of congressional power to reach the private conspiracy alleged in the complaint exists, id. 403 U.S. at 104, 91 S.Ct. at 1799, 29 L.Ed.2d at 349; Means v. Wilson, 522 F.2d 833, 838 (8th Cir. 1975); Action v. Gannon, 450 F.2d 1227, 1233 (8th Cir. 1971), we need not and do not reach this question.

In the instant case, there is no allegation of any element of class-based discriminatory motivation on the part of the alleged private conspiracy. Yet the decision in Griffin v. Breckenridge, supra, 403 U.S. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348, is clear that:

The language (of § 1985(3)) requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all. (emphasis original; ...