UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: July 26, 1974.
FRANK PHILLIPS, SR., AND FRANK PHILLIPS, JR., BY HIS NATURAL GUARDIAN, FRANK PHILLIPS, SR., APPELLANTS,
FRED A. TRELLO, GERALD ORSINI, LOUIS LUCENTI, RUDY FLASCO, JAMES SPATARA, DORA HARVARD AND MARY CASASANTA
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Submitted Under Third Circuit Rule 12(6).
Staley, Gibbons and Weis, Circuit Judges.
Opinion OF THE COURT
GIBBONS, Circuit Judge.
This is an appeal from an order of the district court which granted a Rule 12(b) (6) motion by two of seven defendants to dismiss failure to state a cause of action against them.*fn1 The plaintiffs, residents of Coraopolis, Pennsylvania, alleging jurisdiction under 28 U.S.C. § 1343 and claims under 42 U.S.C. §§ 1983 and 1985, sued a councilman of Coraopolis, four local police officers, and the two appellees, Dora Harvard and Mary Casasanta, charging all defendants with a conspiracy to cause various police and other regulatory authorities of Coraopolis Borough to carry on a campaign of illegal harassment against the plaintiffs. The complaint alleges:
"7. The defendants did conspire to commit and did commit the acts set forth hereinafter in concert with each other and/or with others.
8. The defendants did commit the acts set forth hereinafter in concert with each other and/or with others.
9. The acts set forth hereinafter did subject or cause to be subjected the plaintiff to the deprivation of his rights, privileges and immunities secured by the Constitution and the laws."
It then goes on to allege the series of claimed harassments quoted in the margin*fn2 and alleges personal and business injuries including the expenditure of large sums of money to provide legal services in defense of the groundless criminal actions brought against him and his son. The order granting the Rule 12(b) (6) motion by defendants Harvard and Casasanta provides in full:
" AND NOW, this 2nd day of March, 1973, upon consideration of motions of defendant Dora Harvard and Mary Casasanta to dismiss as to them, and of briefs in support thereof and in opposition thereto, and it appearing that said defendants are housewives and residents of Coraopolis, and that nothing is alleged against them except exercising their constitutional rights of petitioning their borough council for redress of grievances and of writing letters for newspaper publication [see Eastern R.R. Presidents Conference v. Noerr Motor Freight Inc., 365 U.S. 127, 135, 136, 5 L. Ed. 2d 464, 81 S. Ct. 523 (1961); N.Y. Times v. Sullivan, 376 U.S. 254, 266, 11 L. Ed. 2d 686, 84 S. Ct. 710 (1964)]; and it also appearing that said defendants are private citizens and that no State action is involved insofar as they are concerned;
IT IS ORDERED that said motions be and it hereby is granted, and the above-styled action be and it hereby is dismissed as to said defendants." Appendix at 33a-34a.
There is no doctrine that housewives or residents of Coraopolis are immune from suit.
The complaint certainly alleges more than the facts that Harvard and Casasanta petitioned the borough council for redress of grievances and wrote letters for publication in newspapers. It alleges that all the defendants, the above included, acting in concert, conspired to commit the acts set forth in paragraph 10 of the complaint.
The complaint sufficiently sets forth a cause of action under the Civil Rights Acts to survive a Rule 12(b) (6) motion.
A. The § 1983 cause of action
An action based upon § 1983 involves two distinct elements. First, the plaintiff must assert a deprivation of rights, privileges and immunities secured by the Constitution and laws. Next an assertion must be made that the defendants acted "under color of" state law. The appellees do not seriously contest that the charge of conspiracy to subject a citizen to such acts of improper harassment as illegal searches in violation of the fourth amendment is insufficient to satisfy the first element of a § 1983 action. They contend, however, that since they are citizens holding no official capacity, they cannot be regarded as having acted "under color of" state law. But the law has long been settled that when two or more persons conspire to violate the civil rights of another, if one or more of the conspirators is a state officer acting under color of state law, then the mere fact that other conspirators are not state officers is no defense to them in a suit under the Civil Rights Acts. E.g., Adickes v. Kress & Co., 398 U.S. 144, 152, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Gillibeau v. City of Richmond, 417 F.2d 426, 439 (9th Cir. 1969); Hoffman v. Halden, 268 F.2d 280, 298 (9th Cir. 1959); Valle v. Stengel, 176 F.2d 697, 702 (3d Cir. 1949); Picking v. Pennsylvania R. Co., 151 F.2d 240, 249-50 (3d Cir. 1945). Thus the district court's stated reason for dismissing, "that no State action is involved insofar as they are concerned" must be rejected.
B. The § 1985 cause of action
Moreover, the complaint relies on § 1985. In Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), the Supreme Court held that action "under color of state law" is not an element of a § 1985(3) cause of action. That section makes actionable private conspiracies to deprive a citizen of the equal enjoyment of rights secured to all. Griffin v. Breckenridge overruled Collins v. Hardyman, 341 U.S. 651, 95 L. Ed. 1253, 71 S. Ct. 937 (1951), which had held that § 1985(3) did not reach the conspiracy alleged because it was private and not under color of state law. Since the plaintiffs in Griffin v. Breckenridge were Negro citizens of Mississippi and charged harassment on racial grounds, the Court expressly reserved the question whether a conspiracy motivated by invidiously discriminatory intent other than racial bias would be actionable under § 1985(3). 403 U.S. at 102 n. 9. Since then the task of defining the scope of the private conspiracy cause of action under § 1985(3) has been going forward in the lower federal courts. See Hampton v. City of Chicago, 484 F.2d 602 (7th Cir. 1973); Denman v. Leedy, 479 F.2d 1097 (6th Cir. 1973); Bricker v. Crane, 468 F.2d 1228 (1st Cir. 1972), cert. denied, 410 U.S. 930, 35 L. Ed. 2d 592, 93 S. Ct. 1368 (1973); Hughes v. Ranger Fuel Corp., 467 F.2d 6 (4th Cir. 1972); Azar v. Conley, 456 F.2d 1382 (6th Cir. 1972); McCurdy v. Steele, 353 F. Supp. 629 (D. Utah 1973).
Section 1985(3) was enacted as a part of the Civil Rights Act of 1871 and thus draws vitality from the fourteenth amendment as well as the thirteenth. As Judge Stevens explains:
"With respect to plaintiff's protected interests, the language of §§ 1983 and 1985(3) also differs, but the coverage of the two provisions is probably co-extensive. Thus, the state involvement aspects of § 1983 cases which are directed to the 'protected interests' rather than the 'proscribed conduct ' portion of § 1983 are relevant in understanding the coverage of § 1985 (3)." Dombrowski v. Dowling, 459 F.2d 190, 194-95 (7th Cir. 1972). (footnote omitted).
Azar v. Conley, supra, is particularly enlightening since it recognizes a § 1985(3) cause of action on behalf of white plaintiffs based on allegations quite similar to those before us. 456 F.2d at 1386.
Because settled law under § 1983 compels a reversal of the Rule 12(b) (6) dismissal, we think it premature to rule definitively upon appellants' contention that the complaint adequately charges a § 1985(3) private conspiracy cause of action. We do suggest that the district court must consider that contention in the light of Griffin v. Breckenridge, supra, if as the facts develop only a private conspiracy not within the coverage of § 1983 should be proved. It may be that a private conspiracy to cause unlawful harassment by state enforcement officials which never succeeded to the point where action "under color of state law" occurred could nevertheless cause recoverable damage. We reiterate that our discussion of § 1985(3) is intended only to raise the issue for the district court's initial consideration.
C. The defamation allegations
Paragraph 10(q) of the complaint refers to a libelous letter, and paragraph 10(r) refers to the circulation of petitions directed at instigating efforts to have the police "run the plaintiff out of town." The district court treated these paragraphs as allegations of activities protected by the first amendment. They may nevertheless be taken into consideration in evaluating the conspiracy allegation. See Azar v. Conley, 456 F.2d at 1390. Moreover, the plaintiff alleges that he has been personally slandered and libeled to the detriment of himself and his business. To the extent that the allegations of the complaint set forth a cause of action arising under the defamation laws of the Commonwealth of Pennsylvania, since the libels and slander are claimed to arise out of the § 1983 conspiracy, the district court may undertake pendant jurisdiction over them. Hagans v. Lavine, 415 U.S. 528, 94 S. Ct. 1372, 39 L. Ed. 2d 577, 42 U.S.L.W. 4381, 4384 (1974); Rosado v. Wyman, 397 U.S. 397, 402-05, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970); United Mine Workers v. Gibbs, 383 U.S. 715, 721-29, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
The judgment of the district court will be reversed and the cause remanded for further proceedings consistent with this opinion.