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ALEX v. ALLEN

February 17, 1976

Henry ALEX, by Floyd K. Alex and Edith Alex
v.
E. J. ALLEN, Individually and in his official capacity as Assistant Principal of the Cranberry Senior High School, et al.



The opinion of the court was delivered by: KNOX

 KNOX, District Judge.

 This cause of action arises from a thirty-day suspension of the plaintiff Henry Alex, from the Cranberry Area Senior High School in Venango County, Pennsylvania. This action was taken at a meeting of the Cranberry Area School District School Board on April 21, 1975. The complaint in this case was filed on May 15, 1975, and on June 30, 1975, a motion to dismiss the Cranberry School District, filed on June 6, 1975, was granted. Motions to dismiss all the other defendants, filed on August 22, 1975, August 28, 1975, and on November 17, 1975, remain pending before the court. Before proceeding to consider the plaintiff's constitutional claims, several issues relating to the jurisdiction of this court need to be considered.

 JURISDICTIONAL ISSUES

 (A) Class Action Certification.

 Rule 23(a)(1) of the Federal Rules of Civil Procedure lists four prerequisites to the maintenance of any class action:

 
"Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class."

 A careful reading of the plaintiff's complaint reveals that the above requirements have not been met and certification of this case as a class action will be denied. The complaint states that:

 
"Plaintiff brings this suit as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure. The suit is brought on Plaintiffs behalf and on behalf of all other students in the Cranberry Area Senior High School, similarly situated, who find their rights violated or in jeopardy because of the enforcement, and arbitrary and capricious application of the policies, practices and procedures of Defendants against Plaintiff and the Class for the purpose of suspension and expulsion from school. The persons in this class are so numerous that joinder of all members is impractical. There are questions of law or fact common to each of the classes, the claims of the representatives are typical of the claims of the class, and the representatives will fairly and adequately protect the interests of the class."

 Yet the complaint also states that:

 
"It was established at the hearings that other students had engaged in activities similar to that charged against Plaintiff as grounds for expulsion of which Defendants DeRUBIES and ALLEN were aware in their official capacities, but that no other such student had been expelled or subject to expulsion procedure.
 
"It was established at the hearing that the last expulsion proceeding convened within the Cranberry Area School District was in excess of twenty years ago."

 The plaintiff's expulsion or rather suspension was thus a unique experience at Cranberry High School -- his claims are individual and distinct from those of the rest of the class. Of course, since the court finds that the requirements of Rule 23(a) have not been established, it is not necessary to discuss the standards for the three types of class actions under Rule 23(b). The requirements of both subdivisions A and B of Rule 23 must be established before the court can certify a class. Richardson v. Hamilton International Corporation, 62 F.R.D. 413 (E.D.Pa. 1974). See also the opinion of this court in Stavrides v. Mellon Bank, et al., D.C., 69 F.R.D. 424, decided on November 25, 1975, in regard to the issues involved in the area of class action certification.

 There is only one claim which the plaintiff might arguably share in common with the other students at Cranberry High School. This is the alleged chilling effect of the overly broad high school regulations. As will be subsequently discussed, these contentions do not contain constitutional merit. The requirements of typicality, numerosity, and commonality have not been met and the court will deny certification of the class under Rule 23(c)(1).

 (B) The 1985 Claim.

 Plaintiff's claim under 42 U.S.C. § 1985 must also be denied on jurisdictional grounds. In relevant part, the statute provides:

 
"If two or more persons in any State or Territory conspire or 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, . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators." 42 U.S.C. § 1985(3).

 The courts have held that the elements of a conspiracy must be specifically pleaded to sustain a 1985 claim. "Broad, conclusory allegations of conspiracy are insufficient to state a cause of action." Weyandt v. Mason's Stores, Inc., 279 F. Supp. 283 (W.D.Pa. 1968). In this case, there is not even a broad, conclusory allegation of conspiracy such as was deemed insufficient in Weyandt. See also Antieu, Chester J., Federal Civil Rights Act, Civil Practice (1971). ("Pleading the conspiracy customarily demands specific allegations." at p. 142, § 106). There is no allegation in this complaint of an agreement among the defendants to intentionally discriminate against the plaintiff which constitutes a conspiracy under 1985. See Antieu, supra, § 106 and cases cited therein. Further actions under 1985(3) must be based on some invidious racial or class discrimination. Nothing of this nature appears here. See Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971).

 II. SUBSTANTIVE ISSUES

 Dismissal of the class action and 1985 claims from plaintiff's complaint leaves the 42 U.S.C. § 1983 and declaratory judgment issues based thereon for substantive consideration. After outlining the constitutional standards by which to evaluate motions to dismiss, the plaintiff's constitutional claims will be discussed in light of the extensive litigation regarding the rights of students in recent years.

 (A) Legal Standards Governing Motions to Dismiss.

 The United States Supreme Court has articulated the standards by which to judge motions to dismiss as follows:

 
"For the purposes of a motion to dismiss, the material allegations of the complaint are taken as admitted. . . . And, the complaint is to be liberally construed in favor of plaintiff. . . . The complaint should not be dismissed unless it appears that appellant could 'prove no set of facts in support of his claim which would entitle him to relief.'" Jenkins v. McKeithen, 395 U.S. 411, 89 S. Ct. 1843, 23 L. Ed. 2d 404 (1969). (Citations omitted).

 This circuit has expressed the rule in similar language:

 
"It is also well-settled that on a motion to dismiss the complaint must be viewed in the light most favorable to the plaintiff and that the complaint should not be dismissed unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim; further, no matter how likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it."

 Melo-Sonics Corp. v. Cropp, 342 F.2d 856 (3d Cir. 1965). The above language is quoted from the early case of Continental Collieries v. Shober, 130 F.2d 631 (3d Cir. 1942). The above tests can now be applied to the three categories of constitutional issues advanced by the plaintiff:

 
(1) Overbreadth and void for vagueness.
 
(2) Procedural due process.
 
(3) Equal protection.

 (B) The Void for Vagueness and Overbreadth Issue.

 The following counts of plaintiff's complaint deal with his constitutional argument that the disciplinary rules of the Cranberry High School are vague and overboard:

 
"The Defendants actions were done pursuant to the alleged authorization of the Discipline Rules of the ...

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