Maniaci v. Warren

• Decision Date: 20 July 1970
• Docket Number: No. 70-C-14.,70-C-14.
• Citation: 314 F. Supp. 853
• Parties: Joseph MANIACI and Francis Maniaci, Plaintiffs, v. Robert W. WARREN, individually and as Attorney General of the State of Wisconsin, Peter Peshek, individually and as Assistant Attorney General of the State of Wisconsin, Herbert Krusche, individually and as Investigator, State Department of Justice, State of Wisconsin, and Walter A. Younk, individually and as Investigator, State Department of Justice, State of Wisconsin, Defendants.
• Court: U.S. District Court — Western District of Wisconsin

314 F. Supp. 853

Joseph MANIACI and Francis Maniaci, Plaintiffs, v. Robert W. WARREN, individually and as Attorney General of the State of Wisconsin, Peter Peshek, individually and as Assistant Attorney General of the State of Wisconsin, Herbert Krusche, individually and as Investigator, State Department of Justice, State of Wisconsin, and Walter A. Younk, individually and as Investigator, State Department of Justice, State of Wisconsin, Defendants.

No. 70-C-14.

United States District Court, W. D. Wisconsin.

July 20, 1970.

Donald S. Eisenberg, Madison, Wis., for plaintiffs.

David J. Hanson, Asst. Atty. Gen., Madison, Wis., for defendants.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This action is brought by Joseph Maniaci, the president of a Wisconsin corporation (hereinafter referred to as the corporation) which owns and operates bars and restaurants, and Francis Maniaci, his wife, the vice-president of the corporation.

Plaintiffs seek damages allegedly resulting from defendants' concerted actions in (1) instituting, in the state courts, a civil action for injunction and forfeiture against the corporation for failure to carry workmen's compensation insurance; (2) obtaining, in that action, an order temporarily restraining the corporation from doing business without workmen's compensation insurance coverage, and an order to show cause why the corporation should not be permanently enjoined from continuing such action; and, (3) subsequently obtaining, in that same civil action, a second order to show cause why the corporation should not be held in contempt for failing to abide by the terms of the earlier temporary restraining order.¹ Plaintiffs further allege that the "defendants conspired and confederated together by instituting these proceedings" and causing the previously mentioned order to be issued, and that the proceedings "were maliciously instituted * * * without any semblance of right, and without any legal foundation, and in violation of the plaintiffs' rights as citizens, and for the purposes of annoyance, harassment, and otherwise perplexing the plaintiffs."

Federal jurisdiction was invoked under 28 U.S.C. § 1343(1) on the grounds that defendants have "conspired * * * for the purpose of depriving * * * the plaintiffs of the equal protection of the laws, or of equal privileges and immunities under the laws * * *" within the meaning of 42 U.S.C. § 1985(3); under 28 U.S.C. § 1343(3) on the grounds that defendants' acts constitute a "deprivation under color of * * * state law * * * of * * * rights, privileges, or immunities secured by the Constitution of the United States * * *;" and under 28 U.S.C. § 1331 on the grounds that "the matter in controversy * * * arises under the Constitution * * * of the United States."

Specifically, the asserted cause of action is claimed to arise under the Fifth,² Ninth, and Fourteenth Amendments to the Constitution of the United States.

Defendants have moved to dismiss for lack of jurisdiction over the subject matter and, alternatively, on the ground that the complaint fails to state a claim upon which relief can be granted.

A distinction must be drawn between the question of federal jurisdiction and the question of the sufficiency of the complaint to show a cause of action based upon rights, privileges, or immunities alleged to be secured by the United States Constitution. Under the Supreme Court's analysis of federal jurisdiction in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), it would be error to dismiss this action for want of federal jurisdiction.

"* * * where the complaint, as here, is so drawn as to seek recovery directly under the Constitution * * * of the United States, the federal court, but for two possible exceptions later noted, must entertain the suit.

* * * * * *

"The reason for this is that the court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy.

"Jurisdiction, therefore, is not defeated as respondents seem to contend, by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover. For it is well settled that the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction. Whether the complaint states a cause of action on which relief could be granted is a question of law and just as issues of fact it must be decided after and not before the court has assumed jurisdiction over the controversy. If the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.

* * * * * *

"The previously carved out exceptions are that a suit may sometimes be dismissed for want of jurisdiction where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 681-683, 66 S.Ct. 773, 776.

It appears from the complaint that plaintiffs claim a deprivation of rights secured to them by the Ninth and Fourteenth Amendments. Whether they are entitled to recover will depend upon an interpretation of the Civil Rights Acts and upon a determination of the scope of the Ninth and Fourteenth Amendments. As was said in Bell v. Hood, supra at 685, 66 S.Ct. at 777:

"Thus, the right of the petitioners to recover under their complaint will be sustained if the Constitution and laws of the United States are given one construction and will be defeated if they are given another. For this reason the district court has jurisdiction."

I hold that this court has jurisdiction over the subject matter.

Assuming that the constitutional rights of plaintiffs have been violated, they cannot then assert a federal cause of action for damages by relying solely on 28 U.S.C. § 1331 (general federal question jurisdiction). Congress has provided specific statutory authority for federal damage actions against state officials. But statutory authority is a prerequisite for a federal cause of action for damages, even though the wrong complained of is the violation of a constitutional right. This view has been adopted by all of the courts which have examined the question recently. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 409 F. 2d 718, 720 (2d Cir. 1969); United States v. Faneca, 332 F.2d 872, 875 (5th Cir. 1964), cert. denied 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965); Johnston v. Earle, 245 F.2d 793, 796-797 (9th Cir. 1957); Koch v. Zuieback, 194 F.Supp. 651, 656 (S.D.Cal.1961), aff'd 316 F.2d 1 (9th Cir. 1963); Garfield v. Palmieri, 193 F.Supp. 582, 586 (E.D.N. Y. 1960), aff'd per curiam, 290 F.2d 821 (2d Cir.), cert. denied 368 U.S. 827, 82 S.Ct. 46, 7 L.Ed.2d 30 (1961); Bell v. Hood, 71 F.Supp. 813 (S.D.Cal.1947). Therefore the complaint must state a claim under 42 U.S.C. § 1983 or 42 U.S. C. § 1985.

Defendants have urged that the plaintiffs' allegations are insufficient to support a cause of action under 42 U.S.C. § 1985. They contend that plaintiffs have merely made an unsupported allegation that defendants conspired to deprive them of their rights and that necessary highly specific factual averments are missing.

Despite broad language used in decisions concerning conclusory allegations, I do not believe that plaintiffs should be required to list the place and date of defendants' meetings and a summary of their conversations. A plaintiff pleading a conspiracy violation under § 1985 need not plead his evidence as to defendants' meetings, but may allege that "defendants conspired," provided he then enumerates overt acts in furtherance of the alleged conspiracy. Hoffman v. Halden, 268 F.2d 280, 294-295 (9th Cir. 1959). "This is because while in a...