Flood v. Margis

• Decision Date: 15 January 1971
• Docket Number: No. 70-C-110.,70-C-110.
• Parties: John N. FLOOD, M.D., Plaintiff, v. John MARGIS, Jr., Stephen Horvath, Jr., John Kroes, Donald Boutell, Edward Krivsky, Virginia Healy, Attorney Kenneth Hostak, Sheriff Joseph Blessinger, Does One Through Ten, and Town of Caledonia, a Municipal Corporation, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

322 F. Supp. 1086

John N. FLOOD, M.D., Plaintiff, v. John MARGIS, Jr., Stephen Horvath, Jr., John Kroes, Donald Boutell, Edward Krivsky, Virginia Healy, Attorney Kenneth Hostak, Sheriff Joseph Blessinger, Does One Through Ten, and Town of Caledonia, a Municipal Corporation, Defendants.

No. 70-C-110.

United States District Court, E. D. Wisconsin.

January 15, 1971.

COPYRIGHT MATERIAL OMITTED

John N. Flood, pro se.

Harold D. Gehrke, Corp. Counsel, Racine County, Racine, Wis., for Sheriff Blessinger.

Prosser, Zimmermann, Wiedabach, Koppa & Quale, by John E. Feldbruegge, Milwaukee, Wis., for Kenneth Hostak.

Foley, Capwell, Foley & Seehawer, by Robert A. Christensen, Racine, Wis., for other defendants.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The plaintiff, a resident of California, brings this action against certain present and former officials of the town of Caledonia, Racine County, Wisconsin, and others, including the sheriff of Racine County. This decision will consider various motions now before the court.

The complaint states that the plaintiff operated a mobile home park in Caledonia from 1948 to 1966. In 1964, the town board allegedly refused to renew the plaintiff's license to operate the park, and in 1969 the park property was sold at a sale conducted by the defendant sheriff. This court's jurisdiction is invoked under 28 U.S.C. §§ 1331, 1332 and 1342, and 42 U.S.C. §§ 1981, 1982, 1983 and 1985.

Although the plaintiff, who appears pro se, relies on § 1342, such section appears to be inapplicable. Section 1342 provides for enjoining the enforcement of a state rate order, and the plaintiff must allege that he falls within one of the statute's exceptions. 2A Moore, Federal Practice ¶ 8.091, at 1647 (1968). It is probable that the plaintiff intended, instead, to proceed under 28 U.S.C. § 1343, which gives this court jurisdiction to hear actions in which the deprivation of civil rights is alleged.

On two previous occasions, the plaintiff herein has been obliged to amend his complaint. In my opinion, however, the plaintiff's erroneous reference to § 1342 is not fatal to his complaint. The pleadings of one who pleads pro se for the protection of civil rights should be liberally construed. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L. Ed.2d 80 (1957); Kelly v. Butler County Bd. of Com'rs, 399 F.2d 133 (3d Cir.1968); Weaver v. Pate, 390 F.2d 145 (7th Cir.1968); Eaton v. Bibb, 217 F.2d 446, 448 (7th Cir.1954), cert. denied, 350 U.S. 915, 76 S.Ct. 199, 100 L. Ed. 802 (1955); Rule 8(f), Federal Rules of Civil Procedure.

The civil rights statutes relied upon by the plaintiff create causes of action for the redress of certain wrongs. Under the allegations of the present complaint, 42 U.S.C. §§ 1981 and 1982 are inapplicable, and only §§ 1983 and 1985 need be considered for the purposes of the present action. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968); Tyler v. Russel, 410 F.2d 490 (10th Cir.1969); Daly v. Pedersen, 278 F.Supp. 88 (D.C.Minn. 1967).

All of the defendants have moved to dismiss and for increased security for costs. The plaintiff has moved for summary judgment and to strike an allegedly defective affidavit of one of the defendants. In addition, some of the defendants have asked that this action be abated pending the outcome of certain state court proceedings, and the defendant sheriff has moved, in the alternative, for a more definite statement. The motions to dismiss will be considered first.

The broad thrust of Dr. Flood's claims is contained in paragraph 5 of the complaint, where it is stated:

"That the defendants acted `under color of' Wisconsin State Statutes 66.058 and Town of Caledonia Ordinance 3.05, regulating mobile homes and mobile home parks. That the defendants used their official positions and acted in the name of the Town of Caledonia. That the individual defendants conspired together to deprive, preclude, hinder, circumvent, abrogate, and harass the plaintiff in his constitutional rights to due process of law, and equal protection of the laws, the right to contract, the right to own, lease, and sell real property, the right to be free from unconstitutional searches and seizures, the right to prior notice and a fair and impartial hearing, the right to a renewal license in the absence of prior charges filed, and a hearing thereon, the right of privacy and the right to be safe and secure in his person and property, the right to be free from official fraud and deceit, and the right to be free from defamation, and the right to be free from the abuse of the legal process, and other privileges, immunities, and rights guaranteed to him as a United States Citizen by the United States Constitution, including Article 4, section 2, the 14th Amendment thereto, and other federal laws and statutes including 42 USC 1983 and others. That the individual defendants discriminated invidiously, intentionally, and maliciously against the plaintiff, and stated publicly that their objective was to destroy the plaintiff."

This remarkable mélange of allegations, as expanded in subsequent paragraphs of the complaint, can best be divided into eight separate areas, each of which will be discussed individually.

I.

Paragraph 7 of the complaint charges that several of the defendants "invaded" the plaintiff's attorney-client relationship. There is nothing in the complaint, however, to illustrate the circumstances surrounding the accomplishment of this alleged act. This claim is nothing more than the plaintiff's conclusion, unsupported by any factual statement and is not admitted by a motion to dismiss. See Hess v. Petrillo, 259 F.2d 735, 736 (7th Cir.1958), cert. denied, 359 U.S. 954, 79 S.Ct. 743, 3 L.Ed.2d 761 (1959); Borchlewicz v. Partipilo, 44 F. R.D. 540, 542 (E.D.Wis.1968). As was stated in Friedman v. Younger, 46 F.R.D. 444, 446 (C.D.Cal.1969):

"It is well established that in an action for damages against public officials under the Civil Rights Act, the plaintiff must allege highly specific facts to defeat a Motion to Dismiss. Agnew v. City of Compton, (CACal. 1956) 239 F.2d 226, cert. denied 353 U.S. 959, 77 S.Ct. 868, 1 L.Ed.2d 910."

In a recent decision, this court considered the need for particularization of facts in a civil rights complaint. In Weise v. Reisner, 318 F.Supp. 580 (E. D.Wis.1970), the court stated at pages 583 and 584:

"There are a number of other recent decisions which have indicated that a civil rights complaint may be dismissed when it contains only conclusory allegations. Thus, in Valley v. Maule, 297 F.Supp. 958 (D.Conn. 1968), the court dismissed the complaint and stated at p. 960:

`* * * plaintiff must specify with "at least some degree of particularity" the overt acts which defendants allegedly engaged in * * *.'

"* * *

"* * *

"The same point of view was set forth in Bufalino v. Michigan Bell Telephone Company, 404 F.2d 1023 (6th Cir.1968), cert. denied 394 U.S. 987, 89 S.Ct. 1468, 22 L.Ed.2d 763 (1969), wherein the court made the following statement at p. 1029 of 404 F.2d:

`Jurisdiction is not conferred on a federal court in a non-diversity case by mere conclusory allegations that one's constitutional or civil rights had been violated.'"

In Asher v. Harrington, 318 F. Supp. 82 (E.D.Wis.1970), the court also noted the requirement that a civil rights complaint be specific in its factual assertions. The court of appeals for this circuit very recently stated in Metcalf v. Ogilvie, 436 F.2d 361 (7th Cir. 1970):

"In order to state a cause of action under the Federal Civil Rights Act a complaint must set forth more than bare unsupported conclusionary allegations in support of constitutional deprivation. Ortega v. Ragen, 7 Cir., 216 F.2d 561, 563 (1954). In liberally construing a pro se pleading, as we do here, we conclude the district court was correct in finding that the complaint failed to state a cause of action. In so failing, plaintiff failed to present a substantial constitutional question."

Furthermore, the rights and privileges accruing from the attorney-client relationship are matters of statutory law in Wisconsin. See § 885.22, Wis.Stats. (1967); Baird v. Koerner, 279 F.2d 623 (9th Cir.1960); Davis v. Foreman, 251 F.2d 421 (7th Cir.1958), cert. denied, 356 U.S. 974, 78 S.Ct. 1137, 2 L.Ed.2d 1148 (1958). Violation of a state law does not automatically give rise to a cause of action under the civil rights acts. Ortega v. Ragen, 216 F.2d 561, 562 (7th Cir.1954). It is only when such violation results in the infringement of a federally protected right that a cause of action may be said to exist. Screws v. United States, 325 U.S. 91, 108, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Sigler v. Lowrie, 404 F.2d 659, 662 (8th Cir.1968), cert. denied, 395 U. S. 940, 89 S.Ct. 2010, 23 L.Ed.2d 456 (1969).

In addition, the plaintiff's claim asserted in paragraph 7 is no more cognizable under 28 U.S.C. § 1331 than it is under the civil rights statutes, for it does not rise to the level of a substantial federal question so as to give this court jurisdiction over it. See, e.g., Baird v. Koerner, supra, and Annot., 95 A.L.R.2d 320 (1964). For these reasons, the contentions contained in paragraph 7 of the complaint must fail.

II.

Paragraphs 8, 9, 20, 21, and 25 allege that the defendants misused the state courts to deprive the plaintiff of certain of his constitutionally protected rights. In particular, he contends that the defendants fraudulently and deceitfully made use of false and fabricated statements of fact and law to subject the plaintiff, on occasion, to "sham" trials that resulted in "triggered" state court judgments.

These portions of the complaint are replete with conclusionary allegations that are devoid of factual support, and, like the claim referred to in section I, cannot withstand the defendants' motion to dismiss. In Rodes v. Municipal Authority, 409 F.2d 16 (3d Cir.1969), cert. denied, 396 U.S. 861, 90 S.Ct....