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November 16, 1973

Nyland MCINTOSH, Plaintiff,
Ralph GAROFALO, Defendant

Teitelbaum, District Judge.

The opinion of the court was delivered by: TEITELBAUM

In June of 1970, the plaintiff filed a medical malpractice suit against the defendant doctor in Common Pleas Court of Fayette County, Pennsylvania. The case was tried in January of 1973 and ended in a hung jury. Thereupon, plaintiff brought this action in federal court, alleging a conspiracy between the defendant and a juror to deprive plaintiff of a favorable verdict, allegedly in violation of 42 U.S.C. § 1985. Defendant filed an answer and moved for judgment on the pleadings under F.R. Civ. P. 12(c). Plaintiff countered with a motion to amend his complaint so as to assert claims under 42 U.S.C. §§ 1981 and 1983 and 28 U.S.C. § 1331. This motion to amend the complaint was granted by the Court. Defendant then filed a motion to dismiss. Briefs have been filed by the parties as to the issues raised by both the motion for judgment on the pleadings and the motion to dismiss.

  While Rule 12(b) motions to dismiss and Rule 12(c) motions for judgment on the pleadings are to some extent merely interchangeable weapons in a party's arsenal of pretrial challenges, *fn1" there are differences in the scope and effect of the two motions. A Rule 12(b) motion to dismiss is directed solely toward the defects of the plaintiff's claim for relief, without concern for the merits of the controversy. A Rule 12 (c) motion for judgment on the pleadings, on the other hand, at least theoretically requires some scrutiny of the merits of the controversy. See Wright and Miller, Federal Practice and Procedure, § 1369.

 This case will be determined on defendant's Rule 12(b) motion to dismiss. The merits of the case need not be, and will not be, examined here. Plaintiff has failed to state a claim upon which relief can be granted and so defendant's motion to dismiss will be granted. Each of plaintiff's jurisdictional allegations will be dealt with seriatim.

 42 U.S.C. § 1981

 Section 1981 reads as follows:

"Equal rights under the law: 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 . . "

 As would seemingly be clear from the face of the statute, it has been held that any complaint which fails to allege discrimination based upon race fails to state a claim cognizable under 42 U.S.C. § 1981. Braden v. University of Pittsburgh, 343 F. Supp. 836, 838 (W.D. Pa. 1972), *fn2" Perkins v. Banster, 190 F. Supp. 98 (D. Md. 1960) aff'd 285 F.2d 426 (4th Cir. 1960); contra Gannon v. Action, 303 F. Supp. 1240 (E.D. Mo. 1960). Racial discrimination has not been, and apparently could not be, claimed in this case. Therefore, that portion of plaintiff's action brought under § 1981 must be dismissed.

 42 U.S.C. § 1983

 Section 1983 reads as follows:

"Civil Action for deprivation of rights: 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 at law, suit in equity, or other proper proceeding for redress."

 In order to state a cause of action under 42 U.S.C. § 1983, there must be a demonstration that (1) the conduct complained of was done by a person acting under color of state law and (2) that such conduct deprived plaintiff of rights, privileges and immunities secured by the Constitution and laws of the United States. Chism v. Price, 457 F.2d 1037 (9th Cir. 1972), Brownley v. Gettysburg College, 338 F. Supp. 725 (M.D. Pa. 1972). Without passing on the question of whether plaintiff was deprived of Constitutional rights by defendant's conduct for the moment, it is clear that plaintiff's § 1983 action must fail since it does not comply with the first prerequisite for such a suit, the requirement of state action. State action cannot be founded upon the status of the juror as an alleged co-conspirator because a juror is immunized against an action for damages brought under the Civil Rights Act.

 In Roberts v. Barbosa, 227 F. Supp. 20, 26 (S.D. Cal. 1964), a case in which a criminal defendant's § 1983 suit against those involved in his conviction was dismissed, it was stated:

"I have found no case which touches on the question of immunity of a jury. Perhaps this is the first case where anyone has had the gall to attempt to secure damages from a jury for ...

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