Baer v. Baer, C-77-0550 SW.

• Decision Date: 14 April 1978
• Docket Number: No. C-77-0550 SW.,C-77-0550 SW.
• Citation: 450 F. Supp. 481
• Court: U.S. District Court — Northern District of California
• Parties: Lawrence BAER, Plaintiff, v. Dr. Richard BAER, Jane Doe Baer, Michael E. Trauscht, Wayne Howard, Joseph Alexander, Sr., Joseph Alexander, Jr., Esther Alexander, Kevin Gilmartin, Michele Tunis, Side Mitchell Mack, Gary Scharff, Larry Gumbiner, Freedom of Thought Foundation, a corporation, and Does 1-100, inclusive, Defendants.

450 F. Supp. 481

Lawrence BAER, Plaintiff, v. Dr. Richard BAER, Jane Doe Baer, Michael E. Trauscht, Wayne Howard, Joseph Alexander, Sr., Joseph Alexander, Jr., Esther Alexander, Kevin Gilmartin, Michele Tunis, Side Mitchell Mack, Gary Scharff, Larry Gumbiner, Freedom of Thought Foundation, a corporation, and Does 1-100, inclusive, Defendants.

No. C-77-0550 SW.

United States District Court, N. D. California.

April 14, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul Mike Goorjian, San Francisco, Cal., for Mrs. Martin Durst.

Goorjian & McCabe, San Francisco, Cal., for Mrs. Martin Durst and conservatee.

Friedman & Sloan, San Francisco, Cal., for conservatee.

Albert R. Vermeire, Monbleau, Vermeire & Turley, P. C., Phoenix, Ariz., for defendants Michael E. Trauscht and Wayne Howard.

Lewis, Rouda & Lewis, Marvin E. Lewis, Sr., Maja K. Hanks, San Francisco, Cal., Ralph L. Baker, Oakland, Cal., for plaintiff.

Baker, DeOme, Talarides, Nelsen & Batchelder, Oakland, Cal., for conservatee and plaintiff.

Shapiro, Shapiro & Shapiro, San Anselmo, Cal., for defendant Kevin Gilmartin and Freedom of Thought Foundation.

Gilmore F. Diekmann, Jr., Bronson, Bronson & McKinnon, San Francisco, Cal., for defendants Dr. and Mrs. Baer.

MEMORANDUM OPINION AND ORDER

SPENCER WILLIAMS, District Judge.

The parties are before the court on defendants' motion for partial judgment on the pleadings pursuant to Rule 12(c) or for partial summary judgment pursuant to Rule 56 on federal claims arising under the Civil Rights Act. Defendants maintain the complaint fails to state a claim upon which relief can be granted: (1) under 42 U.S.C. § 1983 because it fails to establish defendants were acting under color of law as required by the terms of the statute; (2) under 42 U.S.C. § 1985(3) because it fails to establish any class-based animus or motivation behind the alleged conspiracy; and (3) under 42 U.S.C. § 1986 because recovery under the statute is contingent upon the existence of a viable claim under 42 U.S.C. § 1985. After careful consideration of the sensitive and complicated constitutional questions raised by the instant controversy the court concludes that defendants' motion must be granted and judgment entered in their favor on plaintiff's Civil Rights Act claims.

FACTUAL BACKGROUND

Lawrence Baer, an adult caucasian male, is a follower of the Reverend Moon and a member of the Unification Church. He brings this action against his parents and the Freedom of Thought Foundation (hereinafter Foundation) for violations of sections 1983, 1985(3) and 1986 of the Civil Rights Acts, seeking both injunctive and compensatory relief. Federal jurisdiction is premised upon diversity as well as federal question grounds, and pendent jurisdiction is asserted with regard to non-federal tort claims for abuse of process, false imprisonment, assault and battery, and invasion of privacy.

The gravamen of the complaint is that defendants conspired to and did abduct plaintiff with the purpose of coercing him to relinquish his religious beliefs. The Foundation is alleged to be in the business of "legal deprogramming." Deprogramming, as the term has become known, is the process whereby individuals who are members of certain religious groups are subjected to a scheme of brain-washing or mind control in an attempt to dissuade them of their religious beliefs. The Foundation allegedly obtains its "business" from persons who are in disagreement with the religious beliefs of a relative. In this case, the Foundation and plaintiff's parents allegedly entered into an agreement for plaintiff's abduction and brainwashing. From the complaint's scenario it appears that pursuant to the directions of the Foundation, Dr. and Mrs. Baer filed a petition in the Superior Court of Marin County requesting their appointment as conservator for their son. After the court issued the requested order agents of the Foundation abducted plaintiff while he was walking with his parents on a street in Sausalito and took him into custody with the assistance of the local police. Defendants then began to deprogram the plaintiff.

As a proximate result of these actions Lawrence Baer claims he was deprived of his rights: (a) to freedom of religion, association and speech, (b) to due process and equal protection of the laws, (c) to be secure in his person and property, (d) to be let alone and (e) to travel freely. These rights, he asserts, are guaranteed by state law and by the First, Fourth, Fifth, Ninth and Fourteenth Amendments.

THE UNDER COLOR OF LAW REQUIREMENT OF SECTION 1983

To frame a cause of action under 42 U.S.C. § 1983 the plaintiff must allege facts which show the defendants have acted under color of state law or authority and have deprived the plaintiff of a right, privilege or immunity secured by the Constitution and the laws of the United States.¹ Sykes v. California, 497 F.2d 197, 200 (9th Cir. 1974); Cohen v. Norris, 300 F.2d 24, 30 (9th Cir. 1962); Oller v. Bank of America, 342 F.Supp. 21, 22 (N.D.Cal.1972). Where the defendants are private individuals, as in the case at hand, two ways exist in which their otherwise private conduct may become state action within the meaning of § 1983. In the first circumstance, courts deem private individuals to be clothed with the authority of the state when it is apparent their actions are substantially identical to actions taken by the state. See, e. g., De Carlo v. Joseph Horne & Co., 251 F.Supp. 935 (W.D.Pa.1966). As one court has observed:

The key feature of this type of liability is that the individual possesses power, conferred by statute or otherwise, which the ordinary citizen does not possess and which allows the individual to take actions normally associated with those taken by public officials acting on behalf of the state. Dennis v. Hein, 413 F.Supp. 1137, 1140 (D.S.C.1976).

See also Oller v. Bank of America, 342 F.Supp. at 23.

More often, private action is deemed state action because the individual wilfully participates in joint activity with the state or its agents. See, e. g., Adickes v. S. H. Kress and Co. 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Hoffman v. Halden, 268 F.2d 280 (9th Cir. 1959). The test of whether a joint participation or conspiracy exists is whether the facts alleged demonstrate that the private individual and the public official acted with a common understanding or "meeting of the minds" to deprive the plaintiff of his constitutionally protected rights. 398 U.S. at 156, 90 S.Ct. 1598. See Hoffman v. Halden, 268 F.2d at 294. Lawrence Baer contends the defendants in the instant case acted under color of law both because they were cloaked with state authority and because they were acting in concert with state officials. As this court observed in Oller v. Bank of America, 342 F.Supp. at 23, however, "the requirement of `State action' can rarely be satisfied when the action is taken by one not a State official."

Although plaintiff alleges defendants acted under color of the California conservatorship law to deprive him of his constitutional rights,² it is well established that "the fact that in the deprivation resort was had to the courts of the state does not supply the necessary state action." Phillips v. Bridge Structural and Ornamental Iron Workers Local 118, 556 F.2d 939, 940 (9th Cir. 1977). Accord, Taylor v. Nichols, 558 F.2d 561 (10th Cir. 1977) (filing a claim and testifying at trial); Hill v. McClellan, 490 F.2d 859 (5th Cir. 1974) (conspiring to enter a default judgment); Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969) (petitioning for a conservatorship order); Weisser v. Medical Care Systems, Inc., 432 F.Supp. 1292 (E.D. Pa.1977) (filing a complaint); Coltharp v. Cutter, 419 F.Supp. 924 (D.Utah 1976) (executing a writ of garnishment); Dennis v. Hein, 413 F.Supp. 1137 (D.S.C.1976) (swearing out an arrest warrant); Firnhaber v. Sensenbrenner, 385 F.Supp. 406 (E.D.Wisc. 1974) (obtaining a temporary restraining order); Weise v. Reisner, 318 F.Supp. 580 (E.D.Wisc.1970) (petitioning for an order for a mental examination). Such disinterested and indirect involvement by the state is too insignificant to bring the discrimination within the pale of constitutional prohibitions. See Hill v. McClellan, 490 F.2d at 860; Weisser v. Medical Care Systems, Inc., 432 F.Supp. at 1295; Firnhaber v. Sensenbrenner, 385 F.Supp. at 410. Because the courts are open to all persons the state confers no power upon any one individual that another does not possess. Defendants here did not possess any special aura of state authority because their actions were not those normally taken by public officials acting on behalf of the state. In petitioning the Marin County Superior Court for an ex parte conservatorship order defendants were exercising a power not conferred by statute upon a select few but upon all citizens of the state.

This court is fortified in its conclusion that defendants did not act under color of law when they resorted to the state court for an ex parte conservatorship order by an analogous Seventh Circuit case. In Brown v. Dunne, 409 F.2d 341 (7th Cir. 1969), the plaintiff alleged defendants had fraudulently petitioned for and obtained a state court order appointing one of them as conservator for plaintiff's client. The plaintiff further alleged the court thereafter issued a citation ordering him to produce certain documents. As a result of these proceedings plaintiff claimed he had been denied his constitutional rights to due process and equal protection of the law. The district court dismissed the complaint brought under § 1983 on the ground that the essence of the claim was defendant had misused a state forum and process in causing the alleged deprivation and such conduct was insufficient to state a claim for which relief could be granted. The Seventh Circuit affirmed and responded as follows to the argument that state action existed by virtue of defendants' resort to the ...