Lessman v. McCormick, s. 77-1951 and 77-2045

Citation591 F.2d 605
Decision Date26 January 1979
Docket NumberNos. 77-1951 and 77-2045,s. 77-1951 and 77-2045
PartiesLinda (Sinklear) LESSMAN, Plaintiff-Appellant, v. Bill McCORMICK, Fred Howard, Ed Ritchie, Ed White, John Finden, James Foster, John Hopkins, Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds, and Topeka Bank & Trust Company, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

Fred W. Phelps, Jr. of Fred W. Phelps, Chartered, Topeka, Kan., for plaintiff-appellant.

Leonard M. Robinson, Topeka, Kan., for defendant-appellee Bill McCormick.

Wilburn Dillon, Jr., Topeka, Kan. (Tom L. Green, Topeka, Kan., with him on brief), for defendants-appellees Fred Howard, Ed Ritchie and Ed White.

L. M. Cornish, Jr., Topeka, Kan. (Henry J. Schulteis, Topeka, Kan., with him on brief), of Glenn, Cornish & Leuenberger, Chartered, Topeka, Kan., for defendants-appellees John Finden, James Foster, John Hopkins, Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds, and Topeka Bank & Trust Co.

Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

These appeals arise out of a Civil Rights Act complaint filed by Linda (Sinklear) Lessman against the Topeka Bank & Trust Company and individual defendant appellees who include the Mayor of the City of Topeka, a Topeka policeman Ed White and his supervisors, including the Chief of Police, Russ Reynolds, an employee of the bank, and all of the members of the board of directors of Topeka Bank & Trust Company. Jurisdiction is asserted under 42 U.S.C. §§ 1983, 1985(2), (3), 1986 and 28 U.S.C. § 1343(3). The trial court dismissed the complaint upon motion of the defendants. Ms. Lessman has appealed.

One question on appeal is whether the complaint states a cause of action under 42 U.S.C. § 1983, specifically whether the actions recited, if true, show a deprivation of a right protected by the Constitution and the laws of the United States within the meaning of that section. Also at issue is whether the complaint is sufficient to state a cause of action under 42 U.S.C. §§ 1985(2) or (3) or 1986, specifically whether she has brought herself within a protected class.

The complaint alleged a conspiracy among all defendants to deny plaintiff equal protection of the law and to injure her property and person. It asserted that the defendants arranged to have White, a city police officer, arrest plaintiff upon a warrant and complaint alleging that she had failed to pay an overtime parking ticket. It was further alleged that White arrested and imprisoned the plaintiff, took her to the police station, where she paid the fine for overtime parking (which she admitted she owed); that having paid the fine plaintiff's imprisonment was continued by informing her that she must see the defendant Reynolds, the bank employee; that White ordered plaintiff to wait in a room until Reynolds appeared, who told plaintiff that when she failed to respond to his letters to her as a debtor of the bank he had prevailed upon the city's police power to arrest and imprison her.

The reasons for the conspiracy were stated to be to instill in plaintiff a fear of the awesome powers of "those who effect arrests and imprisonments" by subjecting her to humiliation, embarrassment and the like, and to instill in her a fear of those who have the power to cause others to effect arrests and imprisonment. The reason for the wish to instill such fear was declared to be to force the plaintiff to give the bank a preferred position in relation to plaintiff's other creditors who did not have access to such compelling means of exacting payments.

No specific facts were alleged with respect to any defendants other than White and Reynolds, except that they "arranged to have the defendant, White, arrest plaintiff," and that they conspired to deprive plaintiff of her rights.

Ruling upon motions by the defendants to dismiss, the trial court declared that there was a bare conclusory allegation of conspiracy, with no specification, insufficient to withstand a motion to dismiss as to the Section 1985 claim. It said that any cause under the portion of § 1985(2) following the semicolon, and § 1985(3) requires a colorable claim of class-based discriminatory animus which is not pleaded here, "nor does it appear they can fairly be so pleaded given the facts which underlie this suit." Since a cause under § 1986 depends upon statement of valid cause of action under § 1985, that claim also was ruled out.

With respect to the § 1983 claim it found the conclusory statements insufficient to state a cause against any other than defendants White and Reynolds. As to them, there was sufficient state action or action under color of state law, but characterizing the claim as essentially one for false arrest or imprisonment the judge thought the incidents alleged were not of sufficient importance to support federal jurisdiction. Therefore, the complaint was dismissed as to all defendants.

Upon review we must bear in mind first that this was not a ruling upon a motion for summary judgment, but one where a complaint was dismissed for failure to state cause of action. The allegations of the complaint must be taken at face value and construed most favorably to the pleader. A motion to dismiss must not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

Thus we must carefully analyze the complaint against the backdrop of each of the sections under which jurisdiction was invoked, to see if it can pass the required tests under the liberal construction rules we are bound to apply.

I

We consider first the allegations of claims under 42 U.S.C. §§ 1985(2), 1985(3) and 1986. Appellant's brief concedes that only the portion of § 1985(2) following the semicolon is invoked here. With respect to this and § 1985(3) she acknowledges that there must be class-based discriminatory animus. She alleges it is present because she is a member of a class consisting of all debtors, and that the discrimination was to give one creditor an unfair and unjust advantage over her as a debtor.

Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), discussing § 1985(3), stated:

The language 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 law to all. (Footnotes omitted.)

The Supreme Court expressly declined to decide whether a conspiracy motivated other than by racial bias would be actionable under that section. 403 U.S. at 102 n.9, 91 S.Ct. 1790. This circuit has held the same kind of class-based discriminatory animus is required under that portion of § 1985(2) following the semicolon. Smith v. Yellow Freight System, Inc., 536 F.2d 1320 (10th Cir. 1976). We have also ruled that where there is no valid claim under § 1985 none can exist under § 1986. Taylor v. Nichols, 558 F.2d 561, 568 (10th Cir. 1977).

The circuit court cases which have recognized under § 1985, classes which are not racially based, have stayed close to the areas protected by the First Amendment. E. g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indians with a particular political view); Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973) (members of Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973) (supporters of a political candidate); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971) (employees with a certain political view).

Debtors have not been recognized as a protected class as yet. Bankrupts have been expressly held not to be such a class in an en banc decision of the Fifth Circuit. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (1977).

Surely if we should recognize debtors as a protected class it would be the largest in America. We do not have to make that decision, however, because the plaintiff is not complaining about a conspiracy against all debtors, only those debtors who owe the Topeka Bank & Trust Company, who have defaulted on their loans, have not responded to ordinary means of pressure, and have committed some violation of law which gives the alleged coconspirator police officers an excuse to arrest them. That surely does not describe a discriminatory animus against all debtors, against a type or class of debtors, or anyone other than this particular individual. The instant case is not essentially different from Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973) where we held a physician denied staff privileges at a hospital had not shown himself the object of a class-based invidiously discriminatory animus. The complaint must allege facts showing a conspiracy against plaintiff "because of" her membership in a class, and that the criteria defining the class "were invidious." Harrison v. Brooks, 519 F.2d 1358, 1360 (1st Cir. 1975).

The complaint was properly dismissed as to the 42 U.S.C. §§ 1985(2), (3) and 1986 claims.

II

We turn to the sufficiency of the allegations of the complaint to state a claim under 42 U.S.C. § 1983. Two elements are necessary for recovery under that section.

First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the...

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