Since 1982, when Magistrate Naythons filed his report and recommendation, there have been substantial developments in the case law relevant to Mr. Silo's claims. Nonetheless, I have reached conclusions largely, although not entirely, congruent with the Magistrate's. I disagree with the Magistrate in that he recommended dismissal of all claims against Judge Bradley whereas I conclude that certain of those claims are not subject to dismissal on the pleadings.
Mr. Silo seeks to bring this action under several sections of the Civil Rights Act of 1871. Specifically, Mr. Silo alleges that the City of Philadelphia, the Clerk of Quarter Sessions of the Court of Common Pleas of Philadelphia County, the President Judge of that court, and an unknown employee in the Clerk's Office of that court are liable to him under 42 U.S.C. §§ 1983, 1985, 1986. I find that the section 1985 and 1986 claims are frivolous. But I find that certain aspects of the section 1983 claims are not -- namely those alleging (a) unconstitutional deprivation of Mr. Silo's right of access to the state courts and (b) discrimination against Mr. Silo in violation of the equal protection clause of the Fourteenth Amendment. I will grant Mr. Silo a brief period properly to replead his allegations that the defendants have a policy of mishandling pro se petitions in the Court of Common Pleas. If, after that period, Mr. Silo has not alleged a policy or practice with sufficient particularity, I will dismiss all defendants with the exception of the unknown employee of the Office of the Clerk of Quarter Sessions.
a. Section 1985
Section 1985 codifies section 2 of the Civil Rights Act of 1871. See generally, Kush v. Rutledge, 460 U.S. 719, 103 S. Ct. 1483, 75 L. Ed. 2d 413 (1983). It provides a private right of action for a variety of different torts. Mr. Silo has not made clear which clause of section 1985 he believes grants him a right of action for the wrongs that he has alleged.
Section 1985(1) clearly does not apply to the asserted mishandling of Mr. Silo's petition in Jackson. Section 1985(1) pertains only to interference with officers of the United States. Mr. Silo has not alleged that he is an officer of the United States. Therefore, section 1985(1) is inapposite.
The first clause of section 1985(2) creates a claim for conspiracy to intimidate witnesses, jurors, or parties in a federal case. Mr. Silo has alleged that the mishandling of his Jackson petition interfered with his prosecution of Non-Punitive Segregation Inmates of Holmesburg Prison v. Lyons, Civil Action No. 80-159 (E.D.Pa. filed Jan. 11, 1980). However, Mr. Silo has not alleged that two or more individuals in the Clerk of Quarter Sessions' Office conspired with an intent to bring about the alleged interference with the progress of No. 80-159. Mr. Silo merely alleges that the Clerk of Quarter Sessions, or his office, mishandled Mr. Silo's petition in order to deprive him of access to the Court of Common Pleas. Moreover, Mr. Silo allegedly attempted to file his petition in Jackson several months before filing his complaint in this court. Accordingly, Mr. Silo does not state a claim under the first clause of section 1985(2).
Mr. Silo similarly does not state a claim under either the second clause of section 1985(2) or section 1985(3). Section 1985(3) creates a claim for conspiracy to deprive an individual of equal rights or certain enumerated civil rights. The second clause of section 1985(2) creates a claim for conspiracy to hinder "the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws. . . ."
The Supreme Court has held that a claim under section 1985(3) requires allegation of "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. . . ." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). Our Court of Appeals has held that this requirement also applies to a claim under the second clause of section 1985(2). Brawer v. Horowitz, 535 F.2d 830, 840 (3d Cir.1976). The Supreme Court has recently held that no such animus must be alleged in a claim under the first clause of section 1985(2), but the Court expressly contrasted the first clause of section 1985(2) with the second clause. Kush v. Rutledge, 103 S. Ct. at 1487. The Court noted that the first clause of section 1985(2) did not contain the language common to section 1985(3) and the second clause of section 1985(2) "requiring that the conspirators' actions be motivated by an intent to deprive their victims of the equal protection of the laws." Id. Thus, the authority of Brawer appears to have been strengthened by Kush. See Miller v. Indiana Hospital, 562 F. Supp. 1259, 1281-1282 (W.D.Pa. 1983).
The Supreme Court has adopted a strict view of the conspiracies subject to section 1985(3) or the second clause of section 1985(2). The Court has explained that its Griffin formulation -- a "racial, or perhaps otherwise class-based, invidiously discriminatory animus" -- refers to a motivation of concern to the drafters of the Civil Rights Act of 1871. And this in turn seems to mean that sections 1985(2) and (3) only grant rights of action to victims of racially motivated conspiracies: minorities and their political supporters. United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, , 103 S. Ct. 3352, 3359, 77 L. Ed. 2d 1049 (1983); see also Nilan v. DeMeo, 575 F. Supp. 1225 (E.D.Pa.1983). Pro se petitioners in state court are not a class subject to the Civil Rights Act's protection.
For these reasons, Mr. Silo's complaint does not state a claim under 42 U.S.C. § 1985.
b. Section 1986
A viable claim under 42 U.S.C. § 1986 takes as its predicate the allegation of facts sufficient to support a claim under section 1985, albeit not necessarily against the same defendants. Section 1986 creates a right of action for failure to prevent a wrong mentioned in section 1985. Mr. Silo has alleged no wrong actionable under section 1985. Consequently, he has stated no claim under section 1986.
c. Section 1983
42 U.S.C. § 1983 creates a private right of action against "every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights privileges, or immunities secured by the Constitution and laws. . . ." Mr. Silo has adequately alleged that the Clerk of Quarter Sessions or someone in his office acted in his or her official capacity and therefore "under color" of state law. Mr. Silo's section 1983 claims are not frivolous, then, if he has properly alleged a violation of his federal rights.
Mr. Silo begins with a series of claims arising under the due process clause of the Fourteenth Amendment. He claims that he has suffered a deprivation of "access to the courts, and unlawful "CONTENT-BASED-CENSORSHIP" of PETITION-SPEECH, [and] unlawful interference with the right to petition to government for redress of grievance. . . ." Complaint para. 29 (capitalization in original). His censorship claim is frivolous. Mr. Silo's complaint alleges that the Clerk of Quarter Sessions' Office failed properly to handle a court petition. This does not state a claim of deprivation of Mr. Silo's right to free speech.
Mr. Silo's claim that the defendants have denied him access to the Court of Common Pleas, however, is not clearly frivolous. This right exists under the petition clause of the First Amendment as applied through the due process clause. California Motor Transport Corp. v. Trucking Unlimited, 404 U.S. 508, 510, 92 S. Ct. 609, 611, 30 L. Ed. 2d 642 (1972). If the Common Pleas court refused systematically to accept filings from Mr. Silo, he would rather effectively be denied access to that court, in violation of the due process clause and the petition clause.
Mr. Silo also claims that the Clerk of Quarter Sessions has mishandled his petition intentionally because he is a pro se prisoner petitioner. He claims that the court treats such petitioners differently from all other petitioners and only loses filings from pro se prisoners. This states a claim for violation of the equal protection clause of the Fourteenth Amendment which is not clearly frivolous.
d. Proper Defendants
Mr. Silo only alleges one incident of mishandling. The individual who mishandled his petition in Jackson is unknown to Mr. Silo. He identifies him or her only as John or Jane Doe. Mr. Silo alleges that the other defendants (the Clerk of Quarter Sessions, the President Judge, and the City of Philadelphia) are liable only in their supervisory or corporate capacities. He alleges this liability because "it can be shown that it is the official policy of the City and Phila. Courts to act in a similar manner as described, herein, in regard to the record keeping or processing of prisoner pro se petitions." Complaint para. 31.
Only if such a policy exists can the City be held liable for John or Jane Doe's mishandling of Mr. Silo's petition. Only if they participated in the setting of that policy can Judge Bradley or Mr. Campbell be held liable. See Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984). Absent proof of such a policy, Mr. Silo has alleged only that Judge Bradley, Mr. Campbell, and the City are liable on a theory of respondeat superior. Section 1983 does not impose liability on this theory.
Mr. Silo has not alleged the policy of which he complains with more specificity than the above-quoted paragraph 31 of his complaint. This is not sufficient. "In this circuit, plaintiffs in civil rights cases are required to plead facts with specificity." Rotolo v. Borough of Charleroi, 532 F.2d 920, 922 (3d Cir.1976). Nevertheless, a remedy for a failure to plead a policy with adequate specificity is, in this district, typically a grant of time to substantiate the overly general pleading, rather than a dismissal. See Durkin v. Bristol Township, 88 F.R.D. 613 (E.D.Pa.1980); but see Shirey v. Bensalem Township, 501 F. Supp. 1138 (E.D.Pa.1980).
For this reason, I will not dismiss the section 1983 claims for deprivation of equal protection or access to the courts against any of the defendants at this time. I will grant Mr. Silo a period of thirty days from the date of the accompanying Order to file an amended complaint in this action. This amended complaint should allege with particularity the facts underlying Mr. Silo's allegation of a policy of the City and the Philadelphia Court of Common Pleas. If, at the end of thirty days, Mr. Silo has not adequately amended his complaint, I will dismiss all remaining claims based upon an allegation of a policy or practice to mishandle pro se prisoner plaintiffs' submissions to the Philadelphia Court of Common Pleas.
An appropriate Order follows.
For the reasons stated in the accompanying Memorandum:
1. Plaintiff's motion to vacate Chief Judge Luongo's Order of November 12, 1982, is DENIED.
2. Plaintiff's petition for leave to proceed in forma pauperis is GRANTED.
3. Plaintiff's claims under 42 U.S.C. §§ 1985, 1986 are DISMISSED AS FRIVOLOUS.
4. Plaintiff's claims under 42 U.S.C. § 1983 are DISMISSED AS FRIVOLOUS EXCEPT FOR plaintiff's claim that he has been denied equal protection of the laws and plaintiff's claim that he has been denied access to the Court of Pennsylvania.
5. Plaintiff SHALL HAVE thirty (30) days from the date of this Order to amend his complaint to allege with particularity the facts underlying the allegations of paragraph 31 of that complaint.