Lynn v. McElroy, Civ. A. No. 9357.

• Decision Date: 16 September 1959
• Docket Number: Civ. A. No. 9357.
• Citation: 176 F. Supp. 661
• Parties: Nell LYNN, Plaintiff, v. Judge J. Russell McELROY et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

176 F. Supp. 661

Nell LYNN, Plaintiff, v. Judge J. Russell McELROY et al., Defendants.

Civ. A. No. 9357.

United States District Court N. D. Alabama, S. D.

September 16, 1959.

Nell Lynn, pro se.

Lange, Simpson, Robinson & Somerville, Reid B. Barnes, and Morgan & Shores, Birmingham, Ala., for defendants.

LYNNE, Chief Judge.

This cause, coming on to be heard, was submitted to the court on a motion of the defendants, separately and severally, to dismiss plaintiff's action. Essentially, defendants contend that the complaint fails to state a claim arising under the Constitution and laws of the United States and, there being no diversity, no jurisdiction is shown in this court of the case made by the complaint.

The complaint abounds in conclusions, but averments of fact characterizing the wrongs which the defendants are supposed to have committed are almost entirely, if not completely, nonexistent. The defendants are accused, without specification or characterization of name, time, occasion, or nature, and entirely without supporting facts, of conspiring and threatening, intimidating and bribing witnesses who have testified on behalf of plaintiff in an action in the State court (Par. 1), of filing false answers to motions (Par. 2), of being guilty of fraudulent concealment amounting to fraud (Par. 3), of falsifying official court records (Par. 4), of victimizing plaintiff (Par. 5), of denying plaintiff representation by counsel and of making it impossible by bribes, intimidation and other influence for plaintiff to trust anyone (Par. 6), of threatening plaintiff because she gave evidence to the Internal Revenue and divisions of the Department of Justice (Par. 7), of threatening plaintiff's life (Par. 8), of threatening, bribing and intimidating plaintiff's detective (Par. 10), and of collaborating with many high officials of the State of Alabama and the City of Birmingham (Par. 13) and of telling lies in order to defend their actions (Par. 14). There is a complete and unexplained failure to name or characterize the person, occasion or nature of any such conspiracy, threat, intimidation, or fraud.

There is an absence of averment that any of the defendants were acting under color of any statute, ordinance, regulation, custom or usage of the State and, although all of the defendants, except the attorneys who represented the defendants in the State court case, are described in the caption of the complaint as being officers of the State of Alabama, there is no charge that they acted in their capacities as such in the discharge of their official duties or under color or guise of their respective offices. While Section 1985 of Title 42 U.S.C.A. (the only provision of Federal law expressly invoked by the plaintiff as creating a right of action arising under the laws of the United States) is not by its terms restricted to acts of public officials acting in the discharge of the duties of their office or under color thereof, and may, therefore, be applied to the actions of individuals in their private capacities, this section, as far as obstructing justice in any State court proceeding is concerned, is limited to conspiracies or acts committed with the intent to effect a denial of the equal protection of the laws. No such charge is made in the complaint, as far as this court can discern or infer. The essential element of intention or purposeful discrimination with respect to a particular class or person, necessary to establish a denial of equal protection of the laws, is not present in this complaint and its absence renders the complaint defective. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497.

There is no showing of deprivation of privileges or immunities of a citizen of the United States (see Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423), obstruction of justice in a Federal proceeding, or other act proscribed in Section 1985.

If the complaint contained an allegation that the defendants, or any of them, were acting under color of statute, the charges nevertheless could be related logically only to the procurement of an adverse judgment rendered against the plaintiff in a suit by her for slander in the Circuit Court for the Tenth Judicial Circuit of Alabama.

As far as the judges of that court, who are made defendants, are concerned, if they did anything in their official capacity, it would necessarily have been in the discharge of a judicial function. The immunity from liability and damages for judicial acts inherent in the common law, and recognized under the decisions of the Supreme Court of Alabama even in cases of deliberate wrong or corruption,¹ was neither destroyed nor abrogated by the Civil Rights Acts.²

While there appears to be a contrary decision in the Third Circuit, Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240, this is the minority view, according to this court's research, and was decided prior to the decision of the Supreme Court of the United States in Tenney v. Brandhove, supra, as pointed out in Cuiksa v. City of Mansfield, supra.

As to the other public officials who are impleaded as parties defendant, including the Circuit Solicitor, the Clerk of the Circuit Court, the Register in Chancery and the Probate Judge of ...