Joyce v. Ferrazzi, 6170.

• Decision Date: 30 October 1963
• Docket Number: No. 6170.,6170.
• Parties: Edward M. JOYCE, Plaintiff, Appellant, v. William FERRAZZI et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

323 F.2d 931 (1963)

Edward M. JOYCE, Plaintiff, Appellant, v. William FERRAZZI et al., Defendants, Appellees.

No. 6170.

United States Court of Appeals First Circuit.

October 30, 1963.

Edward M. Joyce, Quincy, Mass., pro se.

William A. Cotter, Jr., Boston, Mass., with whom Philander S. Ratzkoff and Parker, Coulter, Daley & White, Boston, Mass., were on brief, for William M. MacPhee, appellee.

Stephen T. Keefe, Jr., Asst. City Sol., for William Ferrazzi and another, appellees.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

The plaintiff, invoking the jurisdiction conferred by Title 28 U.S.C. § 1343, filed a complaint, subsequently amended, in the court below in two counts charging a mayor, a chief of police, a sergeant of police, a doctor in private practice and the superintendent of a Massachusetts institution for the care of the mentally ill with depriving him of rights, privileges and immunities secured by the Constitution and laws of the United States in violation of 42 U.S.C. § 1983, and with conspiracy to deprive him of the equal protection of the laws in violation of 42 U.S.C. § 1985(3). The court below, after hearing on cross-motions under Rule 56 Fed.R.Civ.P. supported by affidavits, entered a judgment granting the defendants' motions and dismissing the plaintiff's complaint with costs. The plaintiff appealed.

Class or racial discrimination is not here involved. Stripped of irrelevancies, conclusory allegations and opprobrious epithets the plaintiff's complaint and his affidavit in support of his motion for summary judgment boil down to the charge that the defendants acting in concert falsely arrested the plaintiff in his home and wrongfully committed him under Massachusetts General Laws, Chapter 123 § 79 for ten days to the state institution for the mentally ill of which one of the defendants was the superintendent.

These basic facts emerge from the record: The defendant sergeant of police, with other subordinate officers, acting on orders of a police lieutenant based on independent telephone complaints made by the plaintiff's wife and by a neighbor of a disturbance in the plaintiff's home, went to the plaintiff's house, were admitted by the plaintiff's wife and found the plaintiff on the floor struggling with his 17-year-old son. These not being the first complaints of similar disturbances in the plaintiff's home, and the officers, being of the opinion from their observation of the plaintiff that he was not behaving rationally, carried the plaintiff — he refused to walk — to a police vehicle and took him to the police station where, after he was searched and his outer clothing removed, he was put in a cell.

The plaintiff's wife followed the police to the station and asked the officer in charge to call the defendant doctor, who had treated various members of the plaintiff's family for years. The doctor promptly responded by coming to the police station where he spoke to the defendant and then committed him under the Massachusetts statute mentioned above to the institution of which one of the defendants was superintendent. The plaintiff was kept in the institution for nine or ten days and then released.

Section 1985(3), supra, by its terms, does not give a cause of action for conspiracy to deny federally guaranteed rights generally, including the right to due process of law. See Dunn v. Gazzola, 216 F.2d 709, 711 (C.A. 1, 1954). It clearly "* * * does not attempt to reach a conspiracy to deprive one of rights, unless it is a deprivation of equality, of `equal protection of the law,' or of `equal privileges and immunities under the law.'" Collins v. Hardyman, 341 U.S. 651, 661, 71 S.Ct. 937, 941, 95 L.Ed. 1253 (1951). That is to say, to recover under the section a plaintiff must show invidious discrimination. "But a discriminatory purpose is not presumed, Tarrance v. Florida, 188 U.S. 519, 520, 23 S.Ct. 402, 47 L.Ed. 572; there must be a showing of `clear and intentional discrimination,' Gundling v. Chicago, 177 U.S. 183, 186 20 S.Ct. 633, 44 L.Ed. 725." Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944). In this the plaintiff has utterly failed. Not only has he made no adequate allegation in his complaint or showing in his affidavit in support of his motion for summary judgment of a conspiracy by the defendants, but he has also wholly failed to show that he was treated any differently than anyone else would have been treated under the same circumstances.

Section 1983, supra, gives a broader right of action than § 1985(3) albeit against a restricted class. It provides:

"Every person who, under

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