Phillips v. Fisher, No. 77-4145.

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Writing for the Court: ROGERS
• Citation: 445 F. Supp. 552
• Parties: Gregory W. PHILLIPS and Paula J. Phillips, Plaintiffs, v. Katherine FISHER, Wayne Fisher, Roy Barnes, Kari Snyder, Dennis Phelps, Charles L. Davis, Jr., Michael J. Unrein, J. Franklin Hummer, Robert Thurnes, Laura Thurnes a/k/a Elnora Thurnes, Capital City Moving & Storage, Inc., and Bekins Van Lines, Defendants.
• Docket Number: No. 77-4145.
• Decision Date: 12 October 1977

445 F. Supp. 552

Gregory W. PHILLIPS and Paula J. Phillips, Plaintiffs,
v.
Katherine FISHER, Wayne Fisher, Roy Barnes, Kari Snyder, Dennis Phelps, Charles L. Davis, Jr., Michael J. Unrein, J. Franklin Hummer, Robert Thurnes, Laura Thurnes a/k/a Elnora Thurnes, Capital City Moving & Storage, Inc., and Bekins Van Lines, Defendants.

No. 77-4145.

United States District Court, D. Kansas.

October 12, 1977.

445 F. Supp. 553

Fred W. Phelps, Topeka, Kan., for plaintiffs.

Thomas E. Wright, Topeka, Kan., for Phelps, Davis, Unrein and Hummer.

Charles S. Fisher, Jr., Topeka, Kan., for Barnes, Snyder, Robert Thurnes, Laura Thurnes, Capital City Moving & Storage, Inc. and Bekins Van Lines and Fishers.

MEMORANDUM AND ORDER

ROGERS, District Judge.

This is a civil rights action which comes before the Court upon defendants' motions to dismiss. The complaint alleges that jurisdiction over this matter is proper pursuant to 28 U.S.C. § 1343(3), and 42 U.S.C. §§ 1981, 1985(2), 1985(3), and 1986.

The factual allegations contained in the complaint see appendix reflect that at some unknown time in the past plaintiffs moved from California to Topeka. During the move, some of plaintiffs' belongings were lost by the moving company plaintiffs hired. This transaction has generated state court litigation (apparently three separate lawsuits by these plaintiffs against the defendants) which is ongoing. The defendants are apparently the movers of plaintiffs' belongings, or their attorneys.

The essence of the plaintiffs' claim is that defendants (1) lost plaintiffs' belongings while moving them, and (2) conspired to prevail in the resulting state court litigation by committing perjury, falsifying evidence, and threatening witnesses. Paragraph # 2 of the complaint alleges that plaintiff Gregory Phillips is a black man and plaintiff Paula Phillips is a white woman, and that the defendants committed the alleged wrongs "because Gregory is black and because Paula is white, and because plaintiffs are married to each other . . ."

445 F. Supp. 554

In deciding whether to grant motions to dismiss, we must "take the allegations of the complaint at face value" California Transport v. Trucking Unlimited, 404 U.S. 508, 515, 92 S.Ct. 609, 614, 30 L.Ed.2d 642 (1972) and construe all "allegations of the complaint favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). We must not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

Though we are willing to give the plaintiffs the benefit of every doubt in judging a motion to dismiss, we shall not hesitate to dismiss a complaint which clearly does not state a cause of action. As Judge O'Connor recently noted in Taylor v. Nichols, 409 F.Supp. 927, 932 (D.Kan.1976), aff'd 558 F.2d 561 (10th Cir. 1977):

A dispute regarding the alleged deprivation of such a constitutional right is necessary because it is an express prerequisite of federal jurisdiction under 28 U.S.C. § 1343. . . . It should be clear, however, that the standard for dismissal set forth in Conley, et al., does not become operative unless a privilege or right secured by the Constitution is identified and put into issue by the allegations of the complaint; that is, if the denial of a specific constitutional right is alleged, the action should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief."

We have examined plaintiffs' complaint and detect no valid allegation of an identifiable constitutional right and find no basis for a cause of action under the Civil Rights Acts.

Plaintiffs' first attempt to obtain jurisdiction is pursuant to 28 U.S.C. § 1343(3). A plain requirement of that section is that defendants must have acted under color of state law. Aasum v. Good Samaritan Hospital, 542 F.2d 792, 794 (9th Cir. 1976). Such state action is not alleged. It is clear that the non-attorney defendants did not act under color of state law simply by being involved in, or testifying in state court litigation. Taylor v. Nichols, supra 558 F.2d at 564, citing Grow v. Fisher, 523 F.2d 875 (7th Cir. 1975). Similarly, attorneys who participate in state court litigation do not act under color of law. As this Court recently noted in Brown v. Chaffee, No. 77-4133 (D.Kan., 10/4/77, unpublished):

While private attorneys are often spoken of as "officers of the court," Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), it has long been the rule that acting in such capacity they are not "under color of law" so as to give rise to liability under § 1983. Waits v. McGowan, 516 F.2d 303 (3d Cir. 1975); Jones v. Jones, 410 F.2d 365 (7th Cir. 1969); Meier v. State Farm Mut. Auto Ins. Co., 356 F.2d 504 (7th Cir. 1966); Byrne v. Kysar, 347 F.2d 734 (7th Cir. 1965), cert. den. 383 U.S. 913, 86 S.Ct. 902, 15 L.Ed.2d 668 (1966); Rhodes v. Meyer, 225 F.Supp. 80 (D.Neb.1963), aff'd 334 F.2d 709 (8th Cir. 1964), cert. den. 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964); Skolnick v. Martin, 317 F.2d 855 (7th Cir. 1963); Cooper v. Wilson, 309 F.2d 153 (6th Cir. 1962); State ex rel. Purkey v. Ciolino, 393 F.Supp. 102 (E.D. La.1975); Ehn v. Price, 372 F.Supp. 151 (N.D.Ill.1974); Morrow v. Ingleburger, 67 F.R.D. 675 (S.D.Ohio 1974); Dreyer v. Jalet, 349 F.Supp. 452 (S.D.Tex.1972); Hamrick v. Norton, 322 F.Supp. 424 (D.Kan.1970), aff'd 436 F.2d 940 (10th Cir. 1971).

In their responsive brief, plaintiffs assert that "the jurisdictional statute (§ 1343) is to be given as broad and extensive an application as 42 U.S.C. § 1981 et seq. This statement implies that the "under color of law" requirement does not apply to § 1343, for it does not apply to 42 U.S.C. § 1981. However, the case which plaintiffs cite for this proposition, Blue v. Craig, 505 F.2d 830 (4th Cir. 1974), refers to § 1983, which does require "state action", not to § 1981. (505 F.2d at 839).

445 F. Supp. 555

A valid claim of racial discrimination is a prerequisite to a cause of action under 42 U.S.C. § 1981. Melanson v. Rantoul, 421 F.Supp. 492, 499-500 (D.R.I.1976) (and cases cited therein). Similarly, a claim of some class-based discriminatory animus is an essential element of a claim under 42 U.S.C. § 1985(3) Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1970), and under that portion of 42 U.S.C. § 1985(2) which follows the semicolon. Smith v. Yellow Freight Systems, Inc., 536 F.2d 1320, 1323 (10th Cir. 1976); See Lessman v. McCormick, No. 77-4154 (D.Kan., 9/20/77, unpublished). Racially discriminatory intent would certainly constitute the class-based discriminatory animus that is required under either § 1985(3) or § 1985(2). Failure to adequately plead a claim of racial discrimination would constitute a bar to assertion of any claims under § 1981, 1985(3), or the latter portion of § 1985(2). Whether plaintiffs have adequately pled their claim of racial discrimination is a question to which we shall turn shortly.

That portion of § 1985(2) which precedes the semicolon contains no "equal protection" language and therefore may not require any showing of class-based discriminatory animus. This clause prohibits two or more persons from conspiring to disrupt proceedings of "any court of the United States". Since plaintiffs claim only that defendants have subverted state court proceedings, they have not stated a claim under this portion of § 1985(2). Shaw v. Garrison, 391 F.Supp. 1353, 1370...