Bretz v. Kelman, No. 82-3111

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING, Chief Judge, and GOODWIN, HUG, TANG, SKOPIL, SCHROEDER, FARRIS, ALARCON, FERGUSON, CANBY and REINHARDT; GOODWIN
Citation773 F.2d 1026
PartiesL.R. BRETZ, Plaintiff-Appellant, v. Zollie KELMAN, Jack R. Lande, Eugene R. Welborn, Defendants-Appellees.
Decision Date08 October 1985
Docket NumberNo. 82-3111

Page 1026

773 F.2d 1026
L.R. BRETZ, Plaintiff-Appellant,
v.
Zollie KELMAN, Jack R. Lande, Eugene R. Welborn, Defendants-Appellees.
No. 82-3111.
United States Court of Appeals,
Ninth Circuit.
Argued En Banc and Submitted July 11, 1984.
Decided Oct. 8, 1985.

Page 1027

L.R. Bretz, Billings, Mont., Morton P. Cohen, San Francisco, Cal., for plaintiff-appellant.

Gregory H. Warner, Graybill, Ostrem, Warner & Crotty, Great Falls, Mont., for defendants-appellees.

Appeal from the United States District Court for the District of Montana.

Before BROWNING, Chief Judge, and GOODWIN, HUG, TANG, SKOPIL, SCHROEDER, FARRIS, ALARCON, FERGUSON, CANBY and REINHARDT, Circuit Judges.

GOODWIN, Circuit Judge

Appellant challenges the dismissal for failure to state a claim of his action alleging a conspiracy among police, prosecutors and personal enemies to accuse and prosecute him falsely for burglary. We reverse the judgment and remand for further proceedings.

Bretz alleges that the defendants, by means of false testimony, perjury and other prosecutorial misconduct denied him bail on unrelated charges and ultimately caused his imprisonment in a maximum security facility all in violation of his right to liberty under the Fourteenth Amendment.

On October 24, 1976, Lande, Welborn and a third person were arrested for the burglary of Kelman's residence in Great Falls, Montana. On January 26, 1977, Bretz, who had been incarcerated on an unrelated charge since December 1, 1976, was charged by an information with conspiracy in the Kelman burglary. Upon trial, Bretz was later acquitted for lack of credible evidence. Following his acquittal, Bretz' application for bail on the unrelated charges was denied, allegedly because of the recent prosecution on the unfounded burglary charge. Bretz alleges that the burglary charge was the result of a conspiracy among Lande, Welborn, Kelman, two Great Falls police officers and the City of Great Falls. He alleges that all five named defendants committed perjury, threatened and coerced witnesses, and concealed and falsified evidence.

After he was exonerated on the allegedly framed charges, Bretz filed pleadings, which, when liberally construed, allege a cause of action under 42 U.S.C. Sec. 1983 and Sec. 1985. 1 The district court, treating the papers as pleadings which attempted to federalize a routine state tort claim for malicious prosecution and slander, dismissed the claim. A divided panel of this court affirmed. Bretz v. Kelman, 722 F.2d 503 (9th Cir.1983), withdrawn, 729 F.2d 613 (9th Cir.1984). We took this case en banc along with two other Sec. 1983 prisoner claims because of the importance and complexity of the questions and the doctrinal ambiguity which exists in this circuit over application of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). 2

Even though the petitioner's brief does not specifically refer to Sec. 1985, we must first determine whether Bretz has stated a cause of action under Sec. 1985(2) or Sec. 1985(3) for a conspiracy to deny him equal protection of the laws. 3 In Griffin v.

Page 1028

Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), the Supreme Court held that the language of Sec. 1985(3) requiring an intent to deprive the victim of equal protection or equal privileges and immunities must be limited to cases alleging some racial or class-based invidious discrimination. Otherwise, the court explained, Sec. 1985 would become a generalized federal tort law to be invoked for any private tortious conspiracy. Id. at 101-102, 91 S.Ct. at 1797-98.

Recently the Supreme Court limited Griffin to the first clause of Sec. 1985(3), holding that Griffin did not apply to conspiracies to intimidate witnesses in federal courts under the first clause of Sec. 1985(2). Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 (1983). The Court noted that, beyond applying to the first clause of Sec. 1985(3), "[t]here is no suggestion [in Griffin] that its reasoning applies ... to the portions of the statute that prohibit interference with federal officers, federal courts, or federal elections." Id. at 726. The Kush court left undisturbed the Griffin holding that the first clause of Sec. 1985(3) requires a showing of discriminatory animus, because the "underlying activity ... is not institutionally linked to federal interests and ... is usually of primary state concern." Id at 725. See Mollnow v. Carlton, 716 F.2d 627, 630 (9th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1595, 80 L.Ed.2d 126 (1984).

Because Bretz does not assert any federal interest or involvement with the alleged conspiracy, we must conclude that his Sec. 1985 claims are based upon the second clause of Sec. 1985(2) or the first clause of Sec. 1985(3). Bretz does not, moreover, allege that he is a member of a class (e.g., state convicts) which suffers from invidious discrimination. Even construing his complaint liberally, we cannot find an allegation of racial or class-based discrimination. He cannot, therefore, state a cause of action under the first clause of Sec. 1985(3). Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. The question remains, then, whether Bretz has stated a claim under the second clause of Sec. 1985(2). We hold that he has not, because we conclude that an allegation of class-based animus is required for a claim under that clause as well.

It is true that in Kush v. Rutledge, 460 U.S. 719, 103 S.Ct. 1483, 75 L.Ed.2d 413 the Supreme Court held that no allegations of racial or class-based animus were required to state a claim under the first clause of Sec. 1985(2), which proscribes conspiracies to interfere with the administration of justice in the federal courts. The reasoning of the Supreme Court in Kush, however, as well as that in Griffin, supports our conclusion that class-based animus is an essential part of a cause of action under the second clause of Sec. 1985(2).

As the Court pointed out in Kush, 460 U.S. at 724, 103 S.Ct. at 1487, all parts of Sec. 1985 were originally passed by Congress as a single statutory paragraph. Five types of conspiracy were proscribed: (1) conspiracies to interfere with the performance of federal duties by federal officers, now covered by Sec. 1985(1); (2) conspiracies to interfere with justice in the federal courts, now covered by the first clause of Sec. 1985(2); (3) conspiracies to interfere with justice in the state courts "with intent to deny any citizen" "due and equal protection of the laws," now covered by the second clause of Sec. 1985(2) (emphasis added); 4 (4) private conspiracies to deny "any

Page 1029

person or class of persons ... the equal protection of the laws," now covered by the first clause of Sec. 1985(3) (emphasis added); and (5) conspiracies to interfere with voting in federal elections, now covered by the second clause of Sec. 1985(3). It bears emphasis that only two of these statutory provisions require an intent to deny the victim the equal protection of the laws, see Kush, 460 U.S. at 725, 103 S.Ct. at 1487, and they are the two provisions of Sec. 1985 upon which Bretz must rely, if he may rely upon any.

In holding in Griffin that class-based animus was required for a claim under the first clause of Sec. 1985(3), the Supreme 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....

Griffin, 403 U.S. at 102, 91 S.Ct. at 1798 (emphasis original) (footnote omitted). While the Supreme Court was addressing the first clause of Sec. 1985(3), its words apply equally well to the second clause of Sec....

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1591 practice notes
  • Survine v. Cottle, CASE NO. CV F 12-1453 LJO JLT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 8, 2013
    ...statement of a claim under that clause." Portman v. County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993) (quoting Bretz v. Kelman, 773 F.2d 1026, 1029 (9th Cir.1985)). "Congress intended the act [section 1985(2)] to apply only in cases where there was racial or class-based animus." Kimb......
  • Park v. Thompson, No. 14-56655
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 14, 2017
    ...action" as required under Section 1985(2), (3). Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) ; see also Bretz v. Kelman, 773 F.2d 1026, 1029–30 (9th Cir. 1985) ("[A]n allegation of class-based animus is an essential requirement of a claim under the second clause of § 1985(2).").8 T......
  • Gonzalez v. Dep't (Bureau) of Real Estate, No. 2:15-cv-2448 GEB GGH PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 1, 2016
    ...in connection therewith, and the second clause concerns conspiracies to affect the due course of justice in a state. See Bretz v. Kelman, 773 F.2d 1026, 1028 n. 4 (9th Cir.1985); see also Usher v. City of Los Angeles, 828 F.2d 556, 561 n. 4 (9th Cir.1987). The requirement of racial or class......
  • Sykes v. Las Vegas Metro. Police Dep't, 2:21-cv-01479-RFB-DJA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • December 3, 2021
    ...of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights.” Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir.1985) (en banc). To proceed on a malicious prosecution claim under § 1983, then, a plaintiff must show he was prosecuted “with ma......
  • Request a trial to view additional results
1581 cases
  • Survine v. Cottle, CASE NO. CV F 12-1453 LJO JLT
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • January 8, 2013
    ...statement of a claim under that clause." Portman v. County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993) (quoting Bretz v. Kelman, 773 F.2d 1026, 1029 (9th Cir.1985)). "Congress intended the act [section 1985(2)] to apply only in cases where there was racial or class-based animus." Kimb......
  • Park v. Thompson, No. 14-56655
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 14, 2017
    ...action" as required under Section 1985(2), (3). Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) ; see also Bretz v. Kelman, 773 F.2d 1026, 1029–30 (9th Cir. 1985) ("[A]n allegation of class-based animus is an essential requirement of a claim under the second clause of § 1985(2).").8 T......
  • Gonzalez v. Dep't (Bureau) of Real Estate, No. 2:15-cv-2448 GEB GGH PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 1, 2016
    ...in connection therewith, and the second clause concerns conspiracies to affect the due course of justice in a state. See Bretz v. Kelman, 773 F.2d 1026, 1028 n. 4 (9th Cir.1985); see also Usher v. City of Los Angeles, 828 F.2d 556, 561 n. 4 (9th Cir.1987). The requirement of racial or class......
  • Sykes v. Las Vegas Metro. Police Dep't, 2:21-cv-01479-RFB-DJA
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • December 3, 2021
    ...of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights.” Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir.1985) (en banc). To proceed on a malicious prosecution claim under § 1983, then, a plaintiff must show he was prosecuted “with ma......
  • Request a trial to view additional results

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