Coltharp v. Cutler

• Decision Date: 22 July 1976
• Docket Number: No. C 76-47.,C 76-47.
• Citation: 419 F. Supp. 924
• Parties: Edward H. COLTHARP, Plaintiff, v. Dal H. CUTLER et al., Defendants.
• Court: U.S. District Court — District of Utah

419 F. Supp. 924

Edward H. COLTHARP, Plaintiff, v. Dal H. CUTLER et al., Defendants.

No. C 76-47.

United States District Court, D. Utah, C. D.

July 22, 1976.

COPYRIGHT MATERIAL OMITTED

Richard J. Leedy, Salt Lake City, Utah, for plaintiff.

Walker E. Anderson, Salt Lake City, Utah, for defendants Cutler, Potter, Century and Franciscan.

Roger G. Segal, Salt Lake City, Utah, for defendants Cougar and Patrie.

MEMORANDUM OPINION

ALDON J. ANDERSON, District Judge.

Arguments

The plaintiff filed his verified complaint on February 18, 1976, alleging:

4. The defendants in this action have all conspired amongst each other and agreed and utilized state action in depriving the plaintiff of his property without due process of law in violation of the plaintiff's civil rights guaranteed to him by the Fifth and Fourteenth Amendments to the United States Constitution and in violation of 42 U.S.C. §§ 1979-1988.

The plaintiff maintains that the defendants "spirited" a TD-24 International tractor dozer owned by the plaintiff from Nevada to Utah to prevent the plaintiff from recovering the tractor through process issued by the Nevada courts. The plaintiff contends that, once the tractor was in Utah, some of the defendants instituted a state court action and executed a writ of garnishment to prevent the defendant Patrie, who had possession of the tractor, from returning it to the plaintiff:

12. (c) Said garnishment was issued by state court action and upon information and belief served by state or local officials acting under color of law.

The plaintiff maintains that the defendants combined, conspired and agreed to deprive the plaintiff of his property and to allow the defendants to use the property without payment. The plaintiff maintains that:

13. The process which the defendants served entitled "Writ of Garnishment" failed to comply, not only with Utah law, but with the due process clause of the United States Constitution in that said garnishment was issued prior to the judgment without sufficient averment negating the opportunity to be heard and without an immediate notice to be heard, and without sufficient bond all in violation of 42 U.S.C. §§ 1979-1988.

The plaintiff maintains that the defendants' actions amount to an "abuse of process." The plaintiff alleges that the Utah process was issued in bad faith, with malice and with an improper motive to deprive the plaintiff of his property.

In his memorandum opposing the defendants' motions to dismiss, the plaintiff clarified the basis of his claim by explaining that his cause of action was based on 42 U.S.C.A. §§ 1983 and 1985(3) (1974) and that this court has jurisdiction under 28 U.S.C.A. § 1343 (1962). The plaintiff argues that he was deprived of a property interest by the defendants' use of persons acting under "color of statute" to prevent the plaintiff from regaining his property. The plaintiff contends that the defendants violated 42 U.S.C.A. § 1983 (1974) by serving garnishment against his tractor prior to either a court hearing or notice to the plaintiff. The plaintiff further argues that a cause of action exists under 42 U.S.C.A. § 1985(3) (1974) because of the defendants' conspiracy to deprive him of his property and to deny him equal protection and due process of the law. See, e. g., Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969).

The defendants argue that the section 1983 claim should be dismissed because the defendants are not state officials, did not enter into a conspiracy with state or local officials and, as such, have not acted "under color of state law" as is required by the statute. 15 Am.Jur.2d, Civil Rights § 14; e. g., Gillibeau v. City of Richmond, 417 F.2d 426, 430 (9th Cir. 1969). The defendants also point out that an attorney, such as the defendant Cutler, acting for private parties, is not acting in an official capacity and his actions are not under "color of law." E. g., Haldane v. Chagnon, 345 F.2d 601 (9th Cir. 1965).

The defendants point out that a conspiracy is not actionable under section 1985(3) unless it deprives the plaintiff of equal protection of the laws or of equality of privileges and immunities under the law. See Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951); 15 Am.Jur.2d, Civil Rights § 16. The defendants argue that a conspiracy, the purpose of which is to deprive the plaintiff of due process of law, as opposed to equal protection of the law, does not give rise to a cause of action under section 1985. Dunn v. Gazzola, 216 F.2d 709, 711 (1st Cir. 1954).

The defendants caution the court not to entertain a civil rights action in a case such as this unless the federal court is convinced that the state court proceedings were a nullity and had the purpose of depriving the plaintiff of his property without due process of law. See Johnson v. Stone, 268 F.2d 803, 804-05 (7th Cir. 1959); Bottone v. Lindsley, 170 F.2d 705, 707 (10th Cir. 1948), cert. denied, 336 U.S. 944, 69 S.Ct. 810, 93 L.Ed. 1101 (1949). The defendants contend that the plaintiff has an adequate remedy in the proceeding pending in the Third Judicial District, Salt Lake County, State of Utah, Civil No. 277090 in which the Franciscan Oil Company is suing E. H. Coltharp, the plaintiff in this action, E. H. Coltharp and Company, and three other individual defendants. It was pursuant to that state court action that the Writ of Garnishment was executed which is the basis of this suit. The defendants have filed copies of the materials from the state court case. The court notes that Mr. Coltharp has filed a counterclaim which states the same allegations as are contained in the complaint before this court and has filed a motion before the state court requesting that the remaining defendants from this case be added as third-party defendants in the state court proceeding. The filed materials show that the state court quashed the Writ of Garnishment on February 23, 1976, five days after this case was filed.

Discussion

Section 1985

Although there are many cases that declare that the basis of a section 1985 cause of action must be acts done under color of state law or authority E. g., Colon v. Grieco, 226 F.Supp. 414 (D.N.J.1964), it is apparent that section 1985(3) can be the basis of a cause of action arising solely from a private conspiracy such as the one the plaintiff alleges in this case. E. g., Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971); Ward v. St. Anthony Hospital, 476 F.2d 671 (10th Cir. 1973); Spampinato v. M. Breger & Co., 270 F.2d 46, 49 (2d Cir. 1959), cert. denied, 361 U.S. 944, 80 S.Ct. 409, 4 L.Ed.2d 363 (1960). The purpose of the private conspiracy must be to deprive "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; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws . . .." 42 U.S. C.A. § 1985(3) (1974). Section 1985(3) "does not give a cause of action for a conspiracy the purpose of which is to deny due process." Dunn v. Gazzola, supra 216 F.2d at 711; see Dear v. Rathje, 391 F.Supp. 1, 8 (N.D.Ill.1975). The court concluded in Dunn that the plaintiff merely made a bare conclusory allegation that the defendants had jointly conspired to deprive the plaintiff of equal protection of the laws without adequate support in the facts alleged in the complaint. The First Circuit Court of Appeals determined that the plaintiff was really complaining of a denial of due process and affirmed the district court's dismissal of the case. After examining the complaint and filed materials in this case, the court concludes that it presents the same problem as was presented in Dunn—the plaintiff has presented mere allegations unsupported by facts concerning a denial of equal protection of the laws and is really complaining of an alleged denial of due process. The filed materials indicate that Mr. Coltharp had the same rights, protection, and privileges as any other defendant has in Utah state court proceedings. As such, the section 1985(3) claim was properly dismissed.

The plaintiff's section 1985(3) cause of action is also defective because the defendants' actions do not appear to be motivated by class-based, invidiously discriminatory purposes:

The constitutional shoals that would lie in the path of interpreting § 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose—by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment. . . . 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 v. Breckenridge, supra 403 U.S. at 102, 91 S.Ct. at 1798 (emphasis in original). Even if the plaintiff's complaint does contain a denial of equal protection allegation that could otherwise be considered by this court, the section 1985(3) cause of action would have to be dismissed because the plaintiff shows no racial or otherwise class-based "invidiously discriminatory animus behind the conspirators' action," as is required by Griffin. See Ward v. St. Anthony Hospital, supra 476 F.2d at 676; Dear v. Rathje, supra 391 F.Supp. at 8-9.

Section 1983

As a general rule, federal courts are reluctant to use the federal civil rights statutes as a basis for interfering in state court proceedings:

It is conceivable that persons, either individually or acting in concert

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