of the Plaintiff's facts as constituting the truth. Even under this strict standard the Court has no difficulty in finding that the Plaintiff has not stated a cause of action under §§ 1983 and 1985 of the United States Code.
§ 1983 of the Civil Rights Act guarantees to every person who is a citizen of the United States and within the jurisdiction thereof the "rights, privileges, or immunities secured by the Constitution and laws." Suit against one said to be depriving a person of his rights under the Constitution or laws of the United States may only proceed against a defendant said to be acting "under color of any statute, ordinance, regulation, custom, or usage" of any state. Reading Plaintiff's complaint as liberally as possible the Plaintiff does not allege that the State of Pennsylvania was in any way involved in the supposed deprivation of his Constitutional rights by the Defendants. At most Hohensee may be interpreted as claiming that the Defendants have utilized the State law to his detriment. The mere fact that an individual utilizes state process against another does not make the actor's conduct cognizable as state action. Gibbs et al. v. Titelman et al., 502 F.2d 1107 (3d Cir., filed August 1, 1974). A private party may be brought under the purview of § 1983 when a plaintiff alleges a conspiracy between that private party and one acting under color of state law. At the least a Petitioner must allege active cooperation by the state in the private party's conduct in order for state action to be present. Gilmore et al. v. City of Montgomery, Ala. et al., 417 U.S. 556, 94 S. Ct. 2416, 41 L. Ed. 2d 304 (decided June 17, 1974); Phillips et al. v. Trello et al., 502 F.2d 1000 (3d Cir., filed July 26, 1974).
In Gilmore v. City of Montgomery, supra, the defendant municipality permitted organizations known to discriminate against Negroes to utilize its park facilities to the exclusion of other park users. The Court found that the city's policy fostered and contributed in a significant way to denial of "due process" and "equal protection" of the laws to the black citizens of Montgomery, Alabama. No such state involvement is alleged or appears present in the case herein. The Plaintiff merely accuses the defendants of utilizing an otherwise legal regime, to carry out what Hohensee considers to be an illegal eviction by the Daileys. Neither is the doctrine of the Phillips case, supra, called upon by the allegations of Hohensee's complaint. Plaintiff, Frank Phillips and others, had clearly charged that private individuals conspired with state officials to deprive them of their constitutional rights. While Hohensee alleges the existence of a conspiracy between Thomas and Virginia Dailey with attorney Boyd Hughes, there is no suggestion whatsoever that the District Magistrate or any other state official has acted to violate Hohensee's constitutional rights. The mere fact that Mr. Hughes is an attorney is not enough to invoke the state action concept. See Steward v. Meeker, 459 F.2d 669 (3d Cir., 1972). The paragraphs of Hohensee's complaint referring to conspiracy describe an action in the nature of the tort of malicious prosecution.
We now turn to a discussion of the application of § 1985 of the Civil Rights Act. Defendants assert and the Plaintiff does not contest that sub-sections 1 and 2 of § 1985 cannot apply to this case. Those sections apply to suit against a defendant who attempts to prevent a state or federal officer from performing his duties or who intimidates a party, witness or juror in a legal proceeding. Sub-section 3 of § 1985 makes actionable a conspiracy between private parties who do not act under color of state law, to "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 law." At first blush this section might appear to allow the Plaintiff to proceed with his nebulous and ill-defined equal protection argument against the defendants. The parameters of § 1985(3) are drawn by Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). Griffin, at p. 101, 91 S. Ct. at p. 1798 stated: "That the statute was meant to reach private actions does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others." Griffin explained that the words "equal protection" and "equal privileges and immunities" must be given the meaning customarily given to them by cases discussing the equal protection protection clause of the Federal Constitution. To deny someone equal protection or equal privileges and immunities there must be "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Griffin v. Breckenridge at p. 102, 91 S. Ct. at p. 1798. The only kind of discrimination alleged in Hohensee's complaint involves accusations of personal hostility and animosity usually associated with state actions arising in tort. Hohensee makes no allegation in his complaint and brought forth none at the hearing on the preliminary injunction which would indicate that he is a member of any class, race, or other category against which the Defendants have formed an illegal conspiracy. The Circuit Courts which have had the opportunity to rule on the scope of § 1985(3) have uniformly held that a private business decision to deprive a person of a property interest does not without some discriminatory purpose based upon invidious class discrimination or involving some state action give rise to a right of action against such individuals. See, for example, Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972); and Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973). Since § 1985(3) only recognizes a right of action against private individuals conspiring to deprive a person of his rights under the equal protection clause of the Constitution, any other constitutional deprivations allegedly visited upon Hohensee by the Defendants cannot be recognized under this section of the Civil Rights Law.
The Defendants' motion to dismiss the Plaintiff's complaint for failure to state a cause of action upon which relief can be granted will be treated as a motion for Summary Judgment under Rule 56 F.R.Civ.P. as matters outside the pleadings have been presented to the Court.
An appropriate order will be entered.