Slavin v. Curry, No. 77-2922

CourtU.S. Court of Appeals — Fifth Circuit
Writing for the CourtBefore MORGAN, CLARK and TJOFLAT; CHARLES CLARK; Charles Lindsey
Citation574 F.2d 1256
Docket NumberNo. 77-2922
Decision Date13 June 1978
PartiesFrank SLAVIN, Plaintiff-Appellant, v. Tim CURRY etc., et al., Defendants-Appellees. Summary Calendar. *

Page 1256

574 F.2d 1256
Frank SLAVIN, Plaintiff-Appellant,
v.
Tim CURRY etc., et al., Defendants-Appellees.
No. 77-2922
Summary Calendar. *
United States Court of Appeals,
Fifth Circuit.
June 13, 1978.

Page 1259

Frank Slavin, pro se.

Marvin Collins, Asst. Dist. Atty., Fort Worth, Tex., for Curry, Walls, Robinson, Shannon, Lindsey, Starr and Chaney.

Doug Crouch, Dist. Atty., Fort Worth, Tex., for Pringle.

Roswald E. Shrull, Fort Worth, Tex., for Kohl.

Gordon H. Rowe, Jr., Dallas, Tex., for Lon Evans.

Davis Grant, Gen. Counsel, Wayne Paris, Asst. Gen. Counsel, Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before MORGAN, CLARK and TJOFLAT, Circuit Judges.

CHARLES CLARK, Circuit Judge:

In his pro se complaint Slavin named twenty persons who he alleged had conspired and acted to deprive him of rights guaranteed by the United States Constitution. Slavin based his cause of action on 42

Page 1260

U.S.C. §§ 1983, 1985, and 1986. The defendants responded with motions to dismiss for various reasons, among them, failure to state a claim, immunity, and the statute of limitations. The district court granted dismissals or summary judgment to all of the defendants without holding a hearing. Slavin has appealed from these actions. We vacate portions of the final order of the district court and remand for a hearing.

A judge cannot allow the personal view that the allegations of a pro se complaint are implausible to temper his duty to appraise such pleadings liberally. As we said in Cruz v. Skelton :

We note initially that a § 1983 complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. The allegations of the complaint, especially a pro se complaint, must be read in a liberal fashion. Haines v. Kerner, 1972, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652; Cruz v. Beto, 1972, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263, and they must be accepted as true in testing their sufficiency, Haines v. Kerner, supra, Cruz v. Beto, supra.

543 F.2d 86, 88 (5th Cir. 1976), cert. denied, 433 U.S. 911, 97 S.Ct. 2980, 53 L.Ed.2d 1096 (1977). See also Taylor v. Gibson, 529 F.2d 709, 714 (5th Cir. 1976); Goff v. Jones, 500 F.2d 395, 397 (5th Cir. 1974); Reed v. Jones, 483 F.2d 77, 78 (5th Cir. 1973).

Read in the light of those admonitions, Slavin's complaint describes a conspiracy which began in March 1974 when he applied for a beer and wine permit for his grocery store. The chief of police told him that under no circumstances would he be granted the permit even though a similar store, in the same neighborhood, had recently received a permit. When Slavin indicated that he would sue to obtain the permit, the police chief and others initiated a plan to frame Slavin. A family with young children was moved into the neighborhood near Slavin's store and an attempt was made to have Slavin employ the mother. One of the young children began coming into the store regularly. In May 1974, Slavin was arrested on a charge of indecency with this child. The police officers and representatives of the county district attorney who arrested Slavin beat him and verbally abused him. He was held in jail until July 2, when he was released and, after another beating, told to leave town. By then Slavin had retained as his attorney a man who visited Slavin in jail after learning from others that he might need assistance. Upon his release, Slavin discovered that the attorney had used the authority given him to take possession of Slavin's property for his own use, rather than protecting Slavin's interests. Even so, Slavin followed the admonition of his accusers and left town. He had no other contact with the conspirators until April 1975 when he contacted his retained counsel to discuss filing a civil suit against the conspirators, including the attorney. As a result of that inquiry, Slavin was again arrested and a date was set for his trial. After Slavin's retained attorney withdrew, the court appointed an attorney and an investigator to assist him. Instead of assisting him, however, they joined with the conspirators to thwart Slavin's attempts to prepare his defense. Slavin was found guilty by a jury. When he filed his appeal, the trial judge ordered the court reporters to change the transcript to reflect a stronger case for the prosecution and to delete testimony favorable to Slavin. Despite this tampering, the Texas Court of Criminal Appeals vacated the conviction because of a faulty indictment. Slavin filed this suit in federal court on December 31, 1976, before the conviction was vacated. Slavin had been reindicted, but not retried when the federal district court issued its order dismissing the complaint. The record before this court does not reveal the outcome of any subsequent state proceedings against Slavin.

Read with the required liberality, Slavin's complaint relates, with sufficient specificity, facts that could entitle him to relief. Cf. Johnson v. Wells, 566 F.2d 1016, 1017 (5th Cir. 1978). Even though his complaint

Page 1261

contains adequate factual content, Slavin is entitled to a favorable ruling on the pleadings only if his complaint suffices under other legal standards. Here the trial court ruled that part of Slavin's complaint was barred by the statute of limitations. The court held that a two-year limitation period barred any action against the defendants who arrested Slavin in May 1974. That conclusion depends upon reading the complaint as showing several, separate conspiracies. When the complaint is read with the required liberality, however, it asserts a single, continuing conspiracy. That is, it reveals a conspiracy that began with the intention of denying Slavin the equal protection of the laws and continued by obstructing justice and denying due process in an attempt to conceal the complicity in the first action. The complaint recounts a number of incidents. While they state separate causes of action against individual defendants, they also charge participation in a single conspiracy. The district court erred in treating the incidents as alleging only separate causes of action.

Since there is no congressionally enacted statute of limitation for actions under the Civil Rights Act, federal courts must apply the appropriate state limitation period. Under Texas law the statute of limitations for a civil conspiracy begins to run after "the last overt act alleged to have caused damage." Harang v. Aetna Life Insurance Company, 400 S.W.2d 810, 814 (Tex.Civ.App.1966). In the present case, the last overt act occurred on December 30, 1975, when the court reporters certified the transcript of Slavin's trial. We need not decide which limitation period would be appropriate for Slavin's complaint, for he filed it within a year of the last act and the shortest period of limitation for personal actions under Texas law is one year. See Tex.Rev.Civ.Stat.Ann. arts. 5524-5536a (Vernon 1958 & Supp.1978). Thus, regardless of the characterization of Slavin's single conspiracy claim, none of its individual components is barred by the statute of limitations.

The conclusion that no part of Slavin's action is barred by a limitation period depends upon his being able to maintain the action as one for conspiracy either under section 1983 or section 1985. Absent a connecting conspiracy, the statute of limitations would run from the date of each violation and, as the district court held, some portions of the action would be barred.

An action for conspiracy may be maintained under section 1983. As this court said in Nesmith v. Alford, 318 F.2d 110, 126 (5th Cir. 1963), cert. denied, 375 U.S. 975, 84 S.Ct. 489, 11 L.Ed.2d 420 (1964):

Of course, for a claim under § 1983, a conspiracy as such is not an indispensable element as it is under § 1985. But it may be charged as the legal mechanism through which to impose liability on each and all of the Defendants without regard to the person doing the particular act. Conspiracy is asserted in that situation on more or less traditional principles of agency, partnership, joint venture, and the like.

To maintain a conspiracy action under § 1983 here, however, it is necessary that there have been an actual denial of due process or of equal protection by someone acting under color of state law. Hanna v. Home Insurance Company, 281 F.2d 298, 303 (5th Cir. 1960), cert. denied, 365 U.S. 838, 81 S.Ct. 751, 5 L.Ed.2d 747 (1961). Here, taking the allegations as true, the conspirators framed Slavin, thereby denying him due process, and prevented him from obtaining a beer and wine license, thereby denying him equal protection of the laws. In particular, the court reporters acted under color of state law in preparing the trial transcript. Slavin's complaint is therefore legally sufficient to state a cause of action for conspiracy under section 1983.

We reach a different conclusion regarding his claims under section 1985. In his complaint, Slavin mentions only section 1985(3). Even so, the complaint states facts sufficient to support a claim of obstruction of justice. We therefore treat the complaint as though it had also pled a cause of

Page 1262

action under section 1985(2). Cf. Baldwin v. Morgan, 251 F.2d 780, 791 (5th Cir. 1958). The Supreme Court has said that the language of section 1985(3), "requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971) (emphasis in original). The language of section 1985(2) is similar to that of section 1985(3). The relevant portion of section 1985(2) establishes a cause of action against two or more persons who:

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190 practice notes
  • Williams v. Treen, No. 80-3792
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 31, 1982
    ...n. 3 (5th Cir. 1981). "... dismissal without a hearing is seldom appropriate when the defense of immunity is pled ..." Slavin v. Curry, 574 F.2d 1256, 1262 (5th Cir. 1978). In a recent case involving the question of official immunities, this Court stated, "It must be determined whether the ......
  • McCord v. Bailey, No. 79-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 15, 1980
    ...1979). In their capacities as representatives of a client in court, private counsel do not act under color of state law. Slavin v. Curry, 574 F.2d 1256, 1265 (5th Cir. 1978); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. McCord argues, however, that the defendants are subject to sectio......
  • Emory v. Peeler, No. 83-8477
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 8, 1985
    ...immunity is not a bar to prospective injunctive relief against a judicial officer acting in his judicial capacity); Slavin v. Curry, 574 F.2d 1256, 1264, modified, 583 F.2d 779 (5th Cir.1978) (judge not immune from suit for declaratory relief); United States v. McLeod, 385 F.2d 734, 738 n. ......
  • Smith v. Turner, Civ. A. No. 1:89-CV-0907-JOF.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 25, 1991
    ...under § 1983 must allege both a conspiracy and an actual deprivation of a constitutionally protected interest. See Slavin v. Curry, 574 F.2d 1256, 1261 (5th Plaintiff has alleged that defendants have acted unlawfully and unconstitutionally in attempting to remove him from both his elected o......
  • Request a trial to view additional results
190 cases
  • Williams v. Treen, No. 80-3792
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 31, 1982
    ...n. 3 (5th Cir. 1981). "... dismissal without a hearing is seldom appropriate when the defense of immunity is pled ..." Slavin v. Curry, 574 F.2d 1256, 1262 (5th Cir. 1978). In a recent case involving the question of official immunities, this Court stated, "It must be determined whether the ......
  • McCord v. Bailey, No. 79-1085
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 15, 1980
    ...1979). In their capacities as representatives of a client in court, private counsel do not act under color of state law. Slavin v. Curry, 574 F.2d 1256, 1265 (5th Cir. 1978); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. McCord argues, however, that the defendants are subject to sectio......
  • Emory v. Peeler, No. 83-8477
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 8, 1985
    ...immunity is not a bar to prospective injunctive relief against a judicial officer acting in his judicial capacity); Slavin v. Curry, 574 F.2d 1256, 1264, modified, 583 F.2d 779 (5th Cir.1978) (judge not immune from suit for declaratory relief); United States v. McLeod, 385 F.2d 734, 738 n. ......
  • Smith v. Turner, Civ. A. No. 1:89-CV-0907-JOF.
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • March 25, 1991
    ...under § 1983 must allege both a conspiracy and an actual deprivation of a constitutionally protected interest. See Slavin v. Curry, 574 F.2d 1256, 1261 (5th Plaintiff has alleged that defendants have acted unlawfully and unconstitutionally in attempting to remove him from both his elected o......
  • Request a trial to view additional results

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