Heyn v. BOARD OF SUP'RS OF LA. STATE UNIVERSITY, Civ. A. No. 73-2027.

• Decision Date: 26 July 1976
• Docket Number: Civ. A. No. 73-2027.
• Citation: 417 F. Supp. 603
• Parties: Anton N. J. HEYN v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY et al.
• Court: U.S. District Court — Eastern District of Louisiana

417 F. Supp. 603

Anton N. J. HEYN v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY et al.

Civ. A. No. 73-2027.

United States District Court, E. D. Louisiana.

June 4, 1976.

Supplemental Memorandum and Order July 26, 1976.

Robert E. Barkley, Jr., Sessions, Fishman, Rosenson, Snellings & Boisfontaine, New Orleans, La., for plaintiff.

Rutledge C. Clement, Jr., Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, La., for defendants.

MEMORANDUM AND ORDER

R. BLAKE WEST, District Judge.

Plaintiff, a professor of biology at the University of New Orleans, brought suit against the University and its Board of Supervisors, based upon Title 42, United States Code, Sections 1983 and 1985(3). On March 11, 1976, the Court issued a judgment granting Defendants' motions to dismiss and for summary judgment. The motions were granted for the following reasons:

I. Section 1983 Cause of Action

Because Defendants filed both a motion to dismiss and a motion for summary judgment as to Plaintiff's Section 1983 claim, it is necessary to discuss each motion separately.

A. Motion to dismiss Section 1983 claim

Defendants sought to dismiss all claims alleged to have occurred prior to July 31, 1972 on the ground that such claims had prescribed. Because Section 1983 makes no provision for a limitation period, the Court must apply the statute of limitations which governs the most analogous claim under appropriate state law. Scott v. Vandiver, 476 F.2d 238 (C.A.4, 1973); Waters v. Wisconsin Steel Works of International Harvester, 427 F.2d 476 (C.A.7, 1970); Smith v. Olincraft, 404 F.Supp. 861 (W.D.La., 1975). Plaintiff argues that, since there is no statute under state law analogous to Section 1983, the general (catch-all) limitation of ten years, provided by Louisiana Civil Code Article 3544, is applicable.

Defendants, on the other hand, contend that Plaintiff's action sounds in tort and that the one-year prescriptive period of Civil Code Articles 2315 and 3536 applies.

The proposition that "`. . . § 1983 should be read against the background of tort liability . . .'" has been recognized as correct by the United States Court of Appeals for the Fifth Circuit in Bryan v. Jones, 519 F.2d 44, 45 (C.A.5, 1975), and is well-established law. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

A careful review of the facts in the instant case, as summarized by plaintiff in Paragraph 8, page 4, of the final pre-trial order,¹ makes it clear that Plaintiff sought damages for violation of his civil rights. Plaintiff did not file a claim under Section 1981, which is the section of the Civil Rights Act which affords protection of contractual rights. Plaintiff's claim sounds in tort, and his contention that his civil rights were violated by a breach of any contractual rights is without merit.

Plaintiff's First Amendment rights are in no way dependent upon the existence of any rights he may possess as a result of breach of his contractual relationship with Defendants. This simple distinction was drawn in Holden v. Boston Housing Authority, 400 F.Supp. 399 (D.Mass., 1975), where the Court held:

"If the plaintiff seeks to enforce rights under the First Amendment against deprivations by state officials, he would have that claim regardless of his contractual relationship with those officials or the agency for which they work." Id. at 402.

The fact that a contractual relationship existed between Plaintiff and Defendants is incidental; the alleged violation of Plaintiff's civil rights is not more or less serious because of it. The alleged wrongful acts occurred, and the alleged injurious words were spoken, before July 31, 1972.²

Furthermore, Plaintiff's claim that he is entitled to back pay, asserted under the Civil Rights Act, sounds in tort, not in contract. Watkins v. Scott Paper Co., 530 F.2d 1159 (C.A.5, 1976).

For the foregoing reasons, the Court concluded that Plaintiff's claim, based on events which occurred more than one year prior to institution of suit, July 31, 1972, are barred by the one year limitation of Articles 2315 and 3536, and the motion to dismiss was granted.

B. Motion for Summary Judgment

Defendants' motion to dismiss the cause of action under Section 1983 for claims which accrued prior to July 31, 1972 having been granted, the only remaining Section 1983 claim to be considered was based upon events which allegedly occurred during the period from July 31, 1972 to July 31, 1973. A thorough review of the record reveals that, as Defendants contend, there exists no allegation of wrong-doing on the part of Defendants on or after July 31, 1972,³ and that all of the alleged violations of Plaintiff's civil rights occurred well before July 31, 1972. The fact that actions on the part of Defendants (i. e., the wrongful denial of promotion) were allegedly still causing Plaintiff injury after July 31, 1972 is not relevant to a determination of the date on which the one-year limitation period began to run. Prescription began to run from the date the alleged act which caused the alleged injury took place. Plaintiff admits that he had been planning to bring this suit for over ten years.⁴ Indeed, if it were otherwise, once injured, a plaintiff's suit would never prescribe.

Hence, in the absence of any genuine issue as to any material fact, Defendants' motion for summary judgment was granted in regard to any remaining claims the plaintiff asserted under Section 1983.

II. Section 1985(3) Cause of Action

Plaintiff asserted a claim under Title 42 United States Code Section 1985(3), which was enacted by Congress in 1871 as the enforcement vehicle for the Thirteenth Amendment. The original intent of the Congress in passing the Act, then commonly known as the Ku Klux Klan Act, was to provide to black persons equal protection of the laws of the United States and to rectify pre-existing moral and physical inhumanities. The legislative intent is clearly evident from the terms of the statute itself, which states:

"If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, 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; 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; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."

The United States Supreme Court in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), formulated four elements necessary to establish a cause of action under Section 1985(3). These elements are:

1. A conspiracy by the defendants,

2. With a purpose of depriving the plaintiff of equal protection of the law or equal privileges or immunities under the law,

3. A purposeful intent to discriminate, i. e., there must be some racial or perhaps otherwise class based invidiously discriminatory animus behind the conspirators' action, and

4. Injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in the furtherance of the conspiracy.

See also, Jacobson v. Industrial Foundation of Permian Basin, 456 F.2d 258 (C.A.5, 1972); Kletschka v. Driver, 411 F.2d 436, 447 (C.A.2, 1969).

Plaintiff asserts that he is a member of a class of university professors who were discriminated against in the exercise of their First Amendment privileges, and, therefore, that Section 1985(3) should apply. The Court does not agree. The mere allegation that Professor Heyn was discriminated against does not of itself make Section 1985(3) applicable. The courts have consistently "rejected complaints containing mere conclusory allegations of deprivations of constitutional rights protected under § 1985(3). `A conspiracy claim based upon § 1985(3) requires a clear showing of invidious, purposeful and intentional discrimination . . .'" Robinson v. McCorkle, 462 F.2d 111, 113 (C.A.3, 1972). See also, Byrd v. Local Union # 24, IBEW, 375 F.Supp. 545, 552 (D.Md., 1974). Furthermore, the requisite invidiously discriminatory intent must be shown to be class-based. O'Neill v. Grayson County War Memorial Hospital, 472 F.2d 1140 (C.A.6, 1973).

As the Fifth Circuit succinctly stated in Westberry v. Gilman Paper Company, 507 F.2d 206, 210 (C.A.5, 1975); reh. en banc granted, March 18, 1975; opinion withdrawn, May 23, 1975 (based on mootness):

"Plaintiff's 1985(3) action cannot be sustained under the Griffin Court's Thirteenth Amendment rationale. The aim of the amendment is to provide protection for racial groups which have historically been oppressed, Jones v. Mayer, 1968, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 or those chafing under the hands of involuntary servitude. Clyatt v. United States, 1905, 197 U.S. 207, 25 S.Ct. 429, 49 L.Ed. 726. Plaintiff is neither in a

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