Azar v. Conley

• Decision Date: 22 February 1972
• Docket Number: No. 71-1243.,71-1243.
• Parties: Regina Lee AZAR et al., Plaintiffs-Appellants, v. James R. CONLEY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

456 F.2d 1382 (1972)

Regina Lee AZAR et al., Plaintiffs-Appellants, v. James R. CONLEY et al., Defendants-Appellees.

No. 71-1243.

United States Court of Appeals, Sixth Circuit.

February 22, 1972.

Richard A. Ruppert, Rocky River, Ohio, for plaintiffs-appellants.

Joyce J. George, Asst. Director of Law, Akron, Ohio, for defendants-appellees. William R. Baird, Director of Law, Akron, Ohio, on brief for all appellees except Bruce N. Metz, Anna S. Conley, Dale Wolf and William E. Bachtel; James M. Bierce, Akron, Ohio, on brief for Anna S. Conley; James R. Hinton, Akron, Ohio, on brief for Dale Wolf; Bruce N. Metz, on brief pro se.

Stanley K. Laughlin, Jr., Columbus, Ohio, on brief for A.C.L.U. as amicus curiae; Michael E. Geltner, Columbus, Ohio, of counsel.

Before BROOKS,^* MILLER and KENT, Circuit Judges.

WILLIAM E. MILLER, Circuit Judge.

This appeal is taken from the dismissal of a civil rights action brought by a white middle class family pursuant to 42 U.S.C. §§ 1983, 1985(3) and 1986.

On May 10, 1970, eight members of the Azar family filed a nineteen-page complaint naming twenty-seven defendants in addition to "John Doe and Richard Roe, Unknown Members of the Police Department of the City of Akron, Ohio." The Azars sought certain injunctive relief in addition to damages totaling $4,650,000. The allegations of the complaint depict a sordid tale of severe harassment and intimidation of the Azar family and of inaction and coverup on the part of the police and other public officials of Akron. The central character in this alleged story is James R. Conley, the next-door neighbor of the Azars and a member of the Akron police force. Other defendants include his wife, Anna Conley; his brother Patrick Conley (also an Akron policeman); a friend, Dale Wolf; members of the Akron police department, including the chief of police and two majors; and other public officials of Akron, including the mayor of Akron, its city councilmen, certain other department heads and two judges of the Municipal Court of Akron.

The district court dismissed the complaint on a variety of grounds which are set forth with clarity in a memorandum opinion filed December 15, 1970. From this dismissal the Azars appeal. We consider each of the grounds for dismissal in turn.¹

Adequacy of the Conspiracy Allegations

The Azars contend that the appellees participated in a conspiracy to deny them their civil rights. These charges focus on alleged inaction and suppression by police and other public officials in the face of active harassment and intimidation of the Azars by James R. Conley, and by Conley's friends and relatives. The complaint alleges that the Azars were denied protection and redress under the law because of Conley's position on the police force. For example, it is alleged that there was an agreement "to avoid saying anything, or doing anything about, any act being committed by a fellow police official or officials of Akron which might reveal the wrongs then being committed by a fellow officer." It is also alleged that certain defendants joined in the conspiracy to deny the plaintiffs' "their rights and privileges under the Constitution of the United States . . ." including the right to liberty and equal protection of the law. Numerous specific acts in furtherance of the conspiracy are set forth. Injury to plaintiffs is clearly delineated. Of these allegations, the district court stated:

In order to state a claim for relief under 42 U.S.C. § 1985, there must be specific allegations showing the existence of a conspiracy. General and conclusory allegations of conspiracy are not sufficient. It must also be alleged that the conspiring defendants acted with the specific intent to deprive plaintiff of the equal protection of the laws or of equal privileges and immunities under the law. Cohen v. Norris, 300 F.2d 24 (CA 9, 1962); Huey v. Barloga, 277 F.Supp. 864 (D.C.N.D.Ill., 1967).

The plaintiffs\' complaint, construed most favorable to them, does not satisfy those standards. While it is replete with specific allegations, they are allegations concerning individual events, and do not state a claim for a conspiracy with the requisite intent.² (Emphasis added.)

We must disagree. In a recent case, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971),³ the Supreme Court enumerated the elements of a Section 1985(3) conspiracy:

We return to the petitioners\' complaint to determine whether it states a cause of action under § 1985(3) as so construed. To come within the legislation a complaint must allege that the defendants did (1) "conspire or go in disguise on the highway or on the premises of another" (2) "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." It must then assert that one or more of the conspirators (3) did, or caused to be done, "any act in furtherance of the object of the conspiracy," whereby another was (4a) "injured in his person or property" or (4b) "deprived of having and exercising any right or privilege of a citizen of the United States." 403 U.S. at 102, 103, 91 S.Ct. at 1798, 1799. (Emphasis added.)

The Court illuminated the requisite mental state which is embodied in the statutory language: "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." This aspect of the Civil Rights Act of 1871 has been a source of confusion for some time. Indeed, it has been held on more than one occasion that "specific intent" is a requisite element of a section 1985(3) conspiracy. In Breckenridge, the Court rejected this approach.

In the paragraph preceding the above quoted passage the Court 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 the law to all. 403 U.S. at 102, 91 S.Ct. at 1798.

And footnoting this passage, Mr. Justice Stewart explained further:

The motivation requirement introduce by the word "equal" into the portion of § 1985(3) before us must not be confused with the test of "specific intent to deprive a person of a federal right made definite by decision or other rule of law" articulated by the plurality opinion in Screws v. United States, 325 U.S. 91, 103, 65 S.Ct. 1031, 89 L.Ed. 1495, for prosecutions under 18 U.S.C. § 242. Section 1985(3), unlike § 242, contains no specific requirements of "wilfulness." Cf. Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492. The motivation aspect of § 1985(3) focuses not on scienter in relation to deprivation of rights but on invidiously discriminatory animus. 403 U.S. at 102, 91 S.Ct. at 1798. (Emphasis added.)

Thus, the Supreme Court found that not "specific intent" but "invidiously discriminatory animus" is the requisite mental state which must be proved to establish a conspiracy under Section 1985(3). In reaching this conclusion the Court reasoned as it had in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), where it was held that "specific intent" is not a requisite for the establishment of a Section 1983 action. There the Court stated:

In the Screws case we dealt with a statute that imposed criminal penalties for acts "wilfully" done. We construed that word in its setting to mean the doing of an act with "a specific intent to deprive a person of a federal right." 325 U.S., at 103, 65 S.Ct. at page 1036. We do not think that gloss should be placed on § 1979 which we have here. The word "wilfully" does not appear in § 1979. Moreover, § 1979 provides a civil remedy, while in the Screws case we dealt with a criminal law challenged on the ground of vagueness. Section 1979 should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions. 365 U.S. at 187, 81 S.Ct. at 484. 42 U.S.C. Sec. 1983 is the equivalent of R.S. 1979.

In urging that the district court was correct, the appellees place primary reliance on Huey v. Barloga, 277 F.Supp. 864 (1967), where Judge Will distinguished Monroe v. Pape, supra, concluding that proof of specific intent is necessary for establishment of a Section 1985(3) conspiracy. In Breckenridge, the Supreme Court, as noted, rejected this distinction, applying the reasoning of Monroe to reach the conclusion that "specific intent" is not required by the language of Section 1985(3).

In our view the district court was in error in dismissing the Azars' conspiracy claim on the ground that they had failed to allege "specific intent" or scienter. Rather, assessing the allegations of a Section 1985(3) complaint, a court must determine whether what the Supreme Court termed "invidiously discriminatory animus" has been alleged. The complaint before us alleges in substance the existence of a conspiracy to deny the Azars their constitutionally protected rights.⁴ We find that the Azars have adequately alleged the requisite mental state to assert a cause of action under Sections 1985(3) and 1986.⁵

Sufficiency of the Section 1983 Charges Based on the "Failure to Act".

The court below stated:

This leaves for consideration the sufficiency of the complaint to state a claim for relief under 42 U.S.C. § 1983 against the various defendants on an individual basis. Section 1983 grants redress against any "person who, under color of . . . law . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights secured by the Constitution and laws" of the United States.

In order to state a claim against public officials under § 1983, a complaint must allege positive acts by such officials.

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