The opinion of the court was delivered by: ROSENBERG
The plaintiff, Stephen Sinchak, brings this action for damages based upon the provisions of the Civil Rights Act (42 U.S.C. § 1981 et seq.), its criminal counterpart (18 U.S.C. §§ 241-242) and general jurisdiction (28 U.S.C. § 1340), the Constitution of the United States and the Constitution of the State of Pennsylvania, together with Federal legislation providing for the entry of action under authority of deprivation of Federal rights. In addition, the plaintiff seeks to create a common-law cause of action here.
In the complaint as filed, the plaintiff alleges that he is and was a duly elected councilman of the City of Monessen, Westmoreland County, Pennsylvania; that the defendant is and was the duly elected mayor of the City of Monessen, Westmoreland County, Pennsylvania; that both the plaintiff and the defendant were candidates in a primary election on May 18, 1965 for the office of Mayor with the defendant seeking re-election; that in order to stifle opposition, prevent free speech and free election, the defendant and others conspiring with him took the following actions: (a) filed a libelous advertisement in a local newspaper on May 11, 1965, (b) retained the largest law firm in Western Pennsylvania to enter suit for civil damages and filed the same on May 11, 1965 in the Court of Common Pleas, Westmoreland County; (c) caused Westmoreland Engineering Company, Inc., as plaintiff to enter a suit against the defendant based on an alleged libel; (d) improperly used discovery processes under the Pennsylvania Rules of Civil Procedure, Rule 4007, 12 P.S. Appendix, for harassing and intimidating the defendant; (e) also used this process for the purpose of a grand jury investigation to flush out supporters of the defendant; (f) used said discovery processes for the purpose of collecting evidence for a proposed criminal prosecution of the plaintiff and others; and (g) requested a judge of the Common Pleas Court to place the plaintiff in contempt because he did not answer; that the defendant used his great wealth and power to deprive the plaintiff of his constitutional rights; that the defendant's activity and abuse of court process was an abuse of authority by him as Mayor and as a private citizen; that the incarceration for failure to answer interrogatories amounted to false imprisonment and that the actions of the defendant in all of this was done to make the plaintiff a "pariah" and thus deprive him and others of their rights as citizens in seeking public office.
The defendant has filed a Motion to Dismiss on the grounds (1) that there is no jurisdiction and (2) that the complaint fails to state a claim against the defendant upon which relief can be granted.
On a motion such as this it is incumbent upon me to consider as true all the well-pleaded allegations of the complaint, but not the conclusions of law or any unwarranted deductions not based upon pleaded facts; and this is to be done in the light most favorable to the plaintiff while resolving all doubts which may arise on the allegations of the pleadings in view of their sufficiency. Solomon v. Neisner Bros., 93 F. Supp. 310 (D.C.Pa.1950), affirmed 187 F.2d 735, C.A. 3, 1951. We take as true all facts well pleaded in the complaint. Kossick v. United Fruit Co., 365 U.S. 731, 81 S. Ct. 886, 6 L. Ed. 2d 56 (1961); rehearing denied 366 U.S. 941, 81 S. Ct. 1657, 6 L. Ed. 2d 852; Supchak v. United States, 365 F.2d 844, C.A. 3, 1966; Melo-Sonics Corp. v. Cropp, 342 F.2d 856, C.A. 3, 1965; Manning v. Manning, 197 F. Supp. 871 (D.C.Pa., 1961); Federal Rules of Civil Procedure, Rule 8(f), 28 U.S.C.A.
The test is stated in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957):
"In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim 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."
The plaintiff's theory for the support of his action is expressed in Paragraph 8 of the complaint: "That the activity of defendant is an abuse of authority both as Mayor and a private citizen and an abuse of Court process." We may quickly dispose of any theory averred in the complaint which is based upon an abuse of authority as a "private citizen"; for if this action is to have any hold here, it must be because of any activities of the defendant under color of law.
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action of law, suit in equity, or other proper proceeding for redress." 42 U.S.C. § 1983.
Its criminal counterpart in pertinent part provides as follows:
"If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured by him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secure -
They shall be fined not more than $5,000 or imprisoned not more than ten years, or both." 18 U.S.C.A. § 241.
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both." 18 U.S.C.A. § 242.
The action here is one for damages; sections 241 and 242 contain no provisions authorizing the awarding of damages. Their purpose is to procure criminal remedies or impositions of penalties only. These sections may not be used as bases for civil actions for damages. Fullerton v. Monongahela Connecting Ry. Co., 242 F. Supp. 622 (W.D.Pa.1965); Pugliano v. Staziak, 231 F. Supp. 347 (W.D.Pa.1964), affirmed 345 F.2d 797, C.A.3, 1965. Therefore, they cannot support this cause of action.
28 U.S.C.A. § 1340, also relied upon by the plaintiff here for jurisdictional support, provides as follows:
"The district courts shall have original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the Customs Court. June 25, 1948, c. 646, 62 Stat. 932."
Since this action does not deal with revenue, the reference is obviously misplaced and needs no further consideration. The plaintiff no doubt intended to invoke the general jurisdiction provisions of 28 U.S.C.A. § 1343(3).
The claim here then must stand or fall on authority of the Civil Rights Act. Considering the defendant's motion and arriving at a determination thereon as gauged by our authorities, we examine the averments of the complaint to ascertain whether or not they qualify this action under the Civil Rights Act. In Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), the Supreme Court said at page 171, 365 U.S. at 476, 81 S. Ct. 473, at page 476, 5 L. Ed. 2d 492: "Its purpose is plain from the title of the legislation, 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States * * *'"
The Civil Rights Act prescribes two elements as requisites for recovery: (1) the conduct complained of must have been done by some person acting under color of law; and (2) such conduct must have subjected the complainant to the deprivation of rights, privileges, or immunities secured to him by the Constitution and laws of the United States. Basista v. Weir, 340 F.2d 74, 79, C.A.3, 1965; Marland v. Heyse, 315 F.2d 312, C.A.10, 1963; United States ex rel. Hoge v. Bolsinger, 211 F. Supp. 199, 201 (W.D.Pa.,1962).
The defendant argues that the complaint is lacking in any averments of fact that he acted in any way other than as a private citizen engaged in a political primary campaign, or that his actions were other than ordinary actions of any private citizen, and that in any event there is no averment of fact that the defendant acted in his capacity as mayor. The averment is that he happened to be the mayor when he committed ...