not satisfied that defendant Vitril was either distantly remote or adequately ignorant to elude Fialkowski's "general knowledge direct supervisory" test.
The § 1985(3) Claim
Defendant Vitril has also moved to dismiss the 42 U.S.C. § 1985(3) claim as to him on the same general grounds as the § 1983 claim. At oral argument a defect in plaintiff's § 1985(3) claim was uncovered: the failure to allege membership in a class of persons against which the defendants had directed a class-based animus. The United States Supreme Court recently reconsidered the scope and purposes of § 1985(3) in Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 99 S. Ct. 2345, 60 L. Ed. 2d 957 (1979). On the way to holding that § 1985(3) could not be invoked to redress alleged violations of Title VII of The Civil Rights Act of 1964, 42 U.S.C. § 2000e Et seq., the Supreme Court stated "a plaintiff in an action under § 1985(c) must prove both a conspiracy and a group animus." at -- , 99 S. Ct. at 2352. See also Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971). Although the "racial or, perhaps otherwise class-based, invidiously discriminatory animus" recognized by the Griffin court has not been fully defined, Id. at 102 and notes 9-10, 91 S. Ct. at 1798, the plaintiff here has alleged only a conspiracy directed toward him for individual exercise of First Amendment rights. We cannot conceive of a class of persons which would fit the requirements of § 1985(3) precedent among whom plaintiff claims protection. See Pendrell v. Chatham College, 370 F. Supp. 494 (W.D.Pa.1974) (race and sex are classifications against which class-based animus may be directed); Kimble v. D. J. McDuffy, Inc., 445 F. Supp. 269 (D.La.1978) (a class under § 1985(3) must have common characteristics of an inherent nature); Askew v. Bloemker, 548 F.2d 673 (6th Cir. 1976) (class status must be independent of allegedly unconstitutional actions); Western Telecasters, Inc. v. California Federation of Labor, AFL-CIO, 415 F. Supp. 30 (D.Cal.1976) (bias against non-union employees was not a class-based animus). As the Sixth Circuit noted in the Askew case, Supra, the requirement of showing a broad discriminatory animus prevents § 1985(3) from becoming a general tort law for persons injured by groups of two or more.
All persons entitled to exercise of First Amendment rights if considered as the class here would necessarily include all citizens of the United States and therefore vitiate the class requirement of § 1985(3) as construed by the Supreme Court.
Therefore, defendant Vitril's motion to dismiss the § 1985(3) claim will be granted for plaintiff's failure to state a cause of action.
An appropriate order will be entered.
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