Spencer v. Casavilla

• Decision Date: 27 July 1989
• Docket Number: No. 87 Civ. 3424 (CSH).,87 Civ. 3424 (CSH).
• Citation: 717 F. Supp. 1057
• Parties: Mrs. Ernestine SPENCER, individually as the mother of Samuel Benjamin Spencer, III, deceased, and as Administratrix of the estate of Samuel Benjamin Spencer, III, Mr. Samuel B. Spencer, Jr., father of Samuel Benjamin Spencer, III, deceased, Plaintiffs, v. Frank CASAVILLA, Frank D'Antonio, Cosmo Muriale, Douglas Mackey, John Does, Defendants.
• Court: U.S. District Court — Southern District of New York

717 F. Supp. 1057

Mrs. Ernestine SPENCER, individually as the mother of Samuel Benjamin Spencer, III, deceased, and as Administratrix of the estate of Samuel Benjamin Spencer, III, Mr. Samuel B. Spencer, Jr., father of Samuel Benjamin Spencer, III, deceased, Plaintiffs, v. Frank CASAVILLA, Frank D'Antonio, Cosmo Muriale, Douglas Mackey, John Does, Defendants.

No. 87 Civ. 3424 (CSH).

United States District Court, S.D. New York.

July 27, 1989.

James I. Meyerson, New York City, for plaintiffs.

Frank Casavilla, pro se.

Frank D'Antonio, pro se.

Cosmo Muriale, pro se.

Douglas Mackey, pro se.

John Does, pro se.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Plaintiffs Ernestine Spencer and Samuel B. Spencer, Jr. are the parents of the late Samuel Benjamin Spencer, III (hereinafter "plaintiffs' decedent"). The complaint alleges that on May 28, 1986 defendants assaulted and beat plaintiffs' decedent, the incident occurring in the vicinity of Surf and Mermaid Avenues and 20th Street, Kings County. Plaintiffs' decedent died later that day at Coney Island Hospital. Plaintiffs' decedent was black. The defendants are white.

The District Attorney of Kings County prosecuted the defendants on criminal charges. Defendant Mackey testified for the prosecution and was convicted on a plea of guilty to attempted manslaughter in the first degree. Defendant Casavilla was convicted of murder in the second degree and sentenced to 15 years to life imprisonment. Defendant Muriale was convicted of manslaughter in the first degree and sentenced to eight and a third to 25 years imprisonment. Defendant D'Antonio was convicted of assault in the third degree and sentenced to one year imprisonment.

Plaintiffs commenced this civil action against these four defendants and "John Does" (defendants never further identified) to recover compensatory and punitive damages arising out of this dreadful and tragic incident. The defendants are currently imprisoned or are otherwise indigent. None has retained counsel to conduct the defense of this civil action.

Plaintiffs allege federal question subject matter jurisdiction. Their predicates for doing so are found in the civil rights statutes, namely, 42 U.S.C. §§ 1981, 1985(3), and 1986. Plaintiffs allege claims under those sections. In addition, state law claims are alleged under pendent jurisdiction. At a status conference the Court raised the question sua sponte whether viable federal claims were pleaded. Counsel for plaintiffs has submitted a memorandum in support of federal jurisdiction. Defendants, unrepresented by counsel, have submitted no authorities. The Court has considered the brief on behalf of plaintiffs and conducted independent research.

I.

§ 1981

§ 42 U.S.C. § 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

This statute, derived in part from the Civil Rights Act of 1866, "has roots in the Thirteenth as well as the Fourteenth Amendment" to the United States Constitution. General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 390, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982). To state a claim under the Fourteenth Amendment, unlike the Thirteenth Amendment, a plaintiff must allege state involvement of some kind. Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972). Defendants at bar are private persons who did not act in conjunction with public officers. Accordingly the question arises whether § 1981, read in conjunction with the Thirteenth Amendment, covers the private acts alleged in the complaint.

The first civil right enumerated in § 1981 is that "to make and enforce contracts." Most acts brought against private persons under § 1981 deal with contracting. The Supreme Court's most recent decision in that area is Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), a ruling this Term which narrowed the scope of § 1981 contractual relief. The Court held that racial harassment on the job does not fall within § 1981: "Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts." Id. 109 S.Ct. at 2372.

The case at bar does not involve contractual rights. But § 1981 goes on to enumerate other rights. In Mahone v. Waddle, 564 F.2d 1018, 1026-27 (3rd Cir.1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978), the Third Circuit referred to them as the "equal benefit" and "like punishment" clauses, as opposed to the right "to make and enforce contracts." The plaintiffs in Mahone alleged that municipal police officers, motivated by racial bias, verbally and physically abused them, falsely arrested them, and gave false testimony against them. Defendants argued that a broad reading of § 1981 to embrace such conduct would create a § 1981 action in federal court "whenever a white man strikes a black in a barroom brawl", 564 F.2d at 1029. The Third Circuit rejected that argument, on the basis of a "fundamental distinction" between the rights involved:

The right "to make and enforce contracts" necessarily is concerned with relations between private individuals. It is usually with another individual, not the state, that a black person would seek to make a contract; it is that other individual's racially motivated refusal to make a contract which can cause harm to the black person. The right "to make and enforce contracts" can thus be infringed by private individuals and it is appropriate that private individuals be held liable for that infringement.

The words "full and equal benefit of all laws and proceedings for the security of persons and property" (emphasis supplied), on the other hand, suggest a concern with relations between the individual and the state, not between two individuals. The state, not the individual, is the sole source of law, and it is only the state acting through its agents, not the private individual, which is capable of denying to blacks the full and equal benefit of the law. Thus, while private discrimination may be implicated by the contract clause of section 1981, the concept of state action is implicit in the equal benefit clause. The like punishment clause may be read in the same way.

564 F.2d at 1029.

Two district courts have followed this reasoning by the Third Circuit and held that state action is necessary to support a claim under the equal benefits or like punishment clauses of § 1981. Eggleston v. Prince Edward Volunteer Rescue Squad, 569 F.Supp. 1344, 1353 (E.D.Va.1983), aff'd, without opinion, 742 F.2d 1448 (4th Cir. 1984); Williams v. Northfield Mt. Hermon School, 504 F.Supp. 1319 (D.Mass.1981). But see Hawk v. Perillo, 642 F.Supp. 380, 390 (N.D.Ill.1985) (assault by white males upon black males; district court regarded the Third Circuit's Mahone analysis as "entirely unnecessary to the court's conclusion", declined to follow it, and held that § 1981 prohibits "private as well as official acts of discrimination" in non-contractual areas as well).

Neither the Supreme Court nor the Second Circuit appear to have squarely addressed this particular issue. I find myself in agreement with the Third Circuit's analysis in Mahone, and accordingly conclude that the complaint at bar, involving private conduct of a non-contractual nature, does not allege a viable claim under § 1981. That conclusion is based in part upon considerations which underlie plaintiff's alternative jurisdictional basis, § 1985(3), to which I now turn.

II.

§ 1985(3)

42 U.S.C. § 1985(3) provides in pertinent part:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

To state a cause of action under § 1985(3) a plaintiff must allege (1) a conspiracy (2) for the purpose of depriving a person or class of persons of the equal protection of the laws, or the equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) an injury to the plaintiff's person or property, or a deprivation of right or privilege of a citizen of the United States. Traggis v. St. Barbara's Greek Orthodox Church, 851 F.2d 584, 586-87 (2d Cir.1988), citing Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971). § 1985(3) provides no substantive rights itself; instead, it "provides a remedy for violation of the rights it designates." Great American Federal Savings & Loan Association v. Novotny, 442 U.S. 366, 372, 99 S.Ct. 2345, 2349, 60 L.Ed.2d 957 (1979). However, as the Second Circuit observed in Traggis at 587: "Determining which rights the statute `designates' ... is not...