The opinion of the court was delivered by: BECKER
EDWARD R. BECKER, District Judge.
The plaintiff is an inmate at the Pennsylvania State Correctional Institution at Graterford. He filed this action pro se under 42 U.S.C. §§ 1983 and 1985 seeking $4 million in punitive damages for an alleged violation of his civil rights.
Paragraph 7 of the complaint sets forth the facts on which the cause of action is based:
7. On the 6 day of October, 1971, defendants maliciously published in the Philadelphia Daily News, of and concerning plaintiff the following matter:
"PRISONERS WALK ALL OVER US ABOUT HALF THE TIME."
A picture of the plaintiff appears in full view thereunder, without his face being blackened out. The matter so published was untrue, false and defamatory.
Plaintiff alleges that the article and photograph were published without his permission and that they caused him humiliation and mental anguish, defamed him, invaded his privacy, and subjected him to unfair publicity. The defendants are the newspaper which published the story, its owner and officers, and the reporter and photographer who wrote the story and took the photograph. The superintendent of Graterford is also joined on the theory that he admitted the reporter and photographer to the institution. The complaint asserts a deprivation of the plaintiff's civil rights under color of law (the § 1983 claim) and a conspiracy to deprive him of equal protection of the laws (the § 1985 claim). The complaint is captioned ACTION TO RECOVER DAMAGES FOR LIBEL.
At the time the complaint was filed, we granted plaintiff leave to proceed in forma pauperis. The defendants have now moved us to dismiss the complaint for failure to state a claim upon which relief may be granted.1a We of course construe the complaint liberally, recognizing that pro se pleadings are to be judged by less stringent standards than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Marshall v. Brierley, 461 F.2d 929 (3rd Cir. 1972). Nevertheless, the motion to dismiss must be granted because, even giving plaintiff the benefit of the most liberal construction, we are constrained to hold that: (1) he has not stated a federal claim upon which relief can be granted; and (2) we lack jurisdiction as to his viable cause of action, a claim based on defamation and invasion of privacy. We will deal first with the § 1983 claim and then turn to the claim under § 1985.
First, the complaint does not -- and could not -- allege that defendants other than the warden acted under color of law. They are newspaper people whose orbit is far from the governmental sphere and, by virtue of the first amendment, essentially insulated from it.
Secondly, no deprivation of federally secured rights is alleged. Admittedly the complaint is framed in constitutional language.
However, the wrongs plaintiff asserts, namely libel and invasion of privacy, are not normally considered federally guaranteed rights.
A tort committed by a state official acting under color of law is not in and of itself sufficient to show an invasion of rights under the Civil Rights Act. United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3rd Cir. 1969), cert. denied, 396 U.S. 1046, 90 S. Ct. 696, 24 L. Ed. 2d 691 (1970); Gittlemacker v. Prasse, 428 F.2d 1 (3rd Cir. 1970). Of course, many successful civil rights complaints have been brought to redress tortious conduct. But those cases have all involved conduct that amounted to either deprivation of life or liberty without due process of law or cruel and unusual punishment. See, e.g., Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972), where police officers beat an arrested man in the police station with fists, a blackjack, and a wooden club, directing blows to the head, stomach, and shins; Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970), where a police officer recklessly shot an unarmed suspect and drove him to the police station before taking him to the hospital; Coleman v. Johnston, 247 F.2d 273 (7th Cir. 1957), where the denial of medical care to an unconvicted prisoner with gunshot wounds resulted in the amputation of his leg.
We have found only one case, York v. Story, 324 F.2d 450 (9th Cir. 1963), cert. denied, 376 U.S. 939, 84 S. Ct. 794, 11 L. Ed. 2d 659 (1964), in which an invasion of privacy was held to give rise to a cause of action under the civil rights laws. There, however, the conduct complained of was so outrageous as to shock anyone's conscience. The plaintiff alleged that the police had photographed her nude in indecent poses ostensibly in preparation of a criminal case but in reality to procure photographs for circulation among police department personnel for non-official purposes. The case before us is more akin to Baker v. Howard, 419 F.2d 376 (9th Cir. 1969), where a less egregious invasion of privacy -- causing the broadcast of a false radio report implicating the plaintiff in a crime -- was held not to give rise to a cause of action under § 1983. The Baker opinion cited and distinguished York v. Story.
Neither is a defamation claim cognizable under the Civil Rights Act. See Church v. Hamilton, 444 F.2d 105 (3rd Cir. 1971) (per curiam) and People Cab Co. v. Bloom, 472 F.2d 163 (3rd Cir., Oct. 20, 1972) (per curiam), dismissing civil rights actions for slander. Indeed, it is fundamental that where violation of purely state created rights is alleged, § 1983 is inapplicable.