lead to divergent legal interests by the proposed representatives and members.
Second, we note that, notwithstanding the common theme of mistreatment of female anti-abortion protestors and the allegation that badges and name tags were removed by detaining officers, the factual allegations by each Jane Doe plaintiff are very fact specific. Thus, under these circumstances, certification of a defendant class or classes is not the appropriate vehicle by which to maintain such claims. Thus, we conclude that because the representatives will not fairly and adequately protect the interests of the proposed classes and because questions of law and fact are not sufficiently common, plaintiffs' motion for certification will be denied.
II. Motions to Dismiss
We must construe the third amended complaint in the light most favorable to plaintiffs and may dismiss the third amended complaint only if plaintiffs have alleged no set of facts under which relief could be granted. Banks v. Wolk, 918 F.2d 418, 419 (3rd Cir. 1990). We hold that plaintiffs' claims for alleged violations of 42 U.S.C. § 1985(3) are foreclosed by the United States Supreme Court's recent decision in Bray v. Alexandria Women's Health Clinic, U.S. , 122 L. Ed. 2d 34, 61 U.S.L.W. 4080, 113 S. Ct. 753 (1993). In Bray the Court considered whether § 1985(3) provided a federal cause of action against persons obstructing access to abortion clinics. Although the claim here is being pursued by anti-abortion protestors and not against them, we nevertheless find that the Court's discussion of the scope of § 1985(3) is relevant and hold that this statute does not provide a federal cause of action on behalf of protestors opposed to abortion, regardless whether that "class" of protestors consists only of females.
In Bray, the Court noted that it had previously held that "the language [of § 1985(3)] requiring intent to deprive of equal protection, or equal privileges and immunities, means that here must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." 61 U.S.L.W. at 4081 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971) (emphasis in original)). The Court rejected the argument that opposition to abortion, as well as race discrimination, qualifies as an "otherwise class-based invidiously discriminatory animus." Bray, 61 U.S.L.W. at 4081-83. Specifically, the Court stated that "the term [class] unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors." Id. at 4081. Thus, in our view, this statement is dispositive of whether those who express opposition to abortion and protest may allege a conspiracy claim under this statute against law enforcement personnel who disagree with that viewpoint. They may not. Defendants' motions to dismiss will be granted with respect to the § 1985(3) claim.
Plaintiffs also allege violations of 42 U.S.C. § 1994 and the Thirteenth Amendment, which, generally speaking, prohibit peonage and involuntary servitude, respectively. As we read the third amended complaint, plaintiffs specifically contend that defendants violated plaintiffs' rights under the Thirteenth Amendment and § 1994 in that plaintiffs were forced to stand or walk when arrested or detained. Third Amended Complaint at 28-29. We hold that such claims fail as a matter of law even when the allegations are construed in the light most favorable to plaintiffs as we must. The prohibitions set forth in the Thirteenth Amendment and § 1994 are simply not implicated by such allegations. Defendants' motions will be granted with respect to plaintiffs' claims for violations of these provisions.
Defendants have also moved to dismiss the claims brought by Amnesty America in its representational capacity for lack of standing. In light of the other rulings contained in this opinion, Amnesty is left only with claims for alleged violations of the Fourth and Fourteenth Amendment for excessive force and sexual assault. We agree with defendants that Amnesty America lacks associational standing to assert claims on behalf of Jane Does Nos. 1 through 60. "An association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hospital Council of W. Pa. v. City of Pittsburgh, 949 F.2d 83, 86 (3rd Cir. 1991) (quoting Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977)).
Amnesty America certainly shares a common political viewpoint with the Jane Doe plaintiffs and the interests that it seeks to protect are germane to the organization's purpose of ensuring the protection of anti-abortion protestors' civil rights. However, it fails to satisfy the two remaining prongs of the test for association standing. First, with respect to the first prong referenced above, nowhere is it alleged that the any Jane Doe plaintiffs are members of the self-described "proprietary organization" Amnesty America. Thus, while it is not questioned that Jane Doe plaintiffs have standing to sue in their own right, as Jane Does Nos. 10, 17, 26, 37, 47 and 52 have done, implicit in the first prong is the requirement that the association seeking to bring claims on behalf of its members is that the allegedly injured parties are members of the organization.
Second, and more importantly in our view, Amnesty America has failed to satisfy the third prong. The serious allegations of excessive force and sexual assault require the participation of individual "members" in this action. The allegations and claims for relief concerning the § 1983 claims are fact-intensive and the testimony of Jane Doe plaintiffs will be necessary to sustain such claims. Thus, defendants' motions to dismiss the claims asserted by Amnesty America for lack of associational standing will be granted.
This brings us to a related issue, namely, the propriety of Jane Doe plaintiffs proceeding anonymously in this action. In our judgment, plaintiffs cannot proceed anonymously if they wish to continue this civil action. As noted above, these Jane Doe plaintiffs must establish a constitutional violation by employees of defendant County or by employees of defendant City to establish a claim against the supervisory defendants, the municipal defendants, and, of course, the employees themselves if named.
Under the circumstances, fairness to these defendants outweighs any right to privacy of the Jane Doe plaintiffs to proceed anonymously. In sum, plaintiffs will be ordered to provide defendants with the names of the Jane Doe plaintiffs who desire to proceed and will be ordered to identify and serve those officers alleged to have committed the acts of brutality and assault.
Defendants also contend that the intentional tort claims set forth in pages 32-35 of the third amended compliant must be dismissed against the City and County because they are immune under Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa.C.S.A. § 8541 et seq. Agresta v. City of Philadelphia, 694 F. Supp. 117, 123 (E.D. Pa. 1988) (Section 8542(a)(2) renders city immune from liability for state-law intentional torts). We agree. Defendants' motions to dismiss the intentional tort claims will be dismissed to the extent that such claims are asserted against the City and County.
III. Motion to Strike
Finally, defendants have moved to strike the allegations contained in the caption of plaintiffs' third amended complaint and the addendum attached to the original complaint and incorporated into the third amended complaint. The motion will be granted with respect to the factual allegations contained in the caption. With respect to the addendum, defendants argue that it contains scandalous and/or repetitive allegations. We have reviewed the addendum, and while arguably repetitive, we conclude that defendants will suffer no prejudice, other than the anonymity of the affiants, from the attachment of the affidavits. However, we note that our ruling with regard to Jane Doe plaintiffs proceeding anonymously applies to any affidavits should the case move forward. Defendants' motions to strike will be granted in part and denied in part.
A written order will follow.
DATED: APRIL 23, 1993
Donald E. Ziegler, United States District Judge
ORDER OF COURT
AND NOW, this 23rd day of April 1993, after consideration of the submissions of the parties,
IT IS ORDERED that plaintiffs' motion for certification of defendant classes be and hereby is denied.
IT IS FURTHER ORDERED that defendants' motions to dismiss be and hereby are granted with respect to the claims for alleged violations of the Thirteenth Amendment, 42 U.S.C. § 1994, and 42 U.S.C. § 1985(3).
IT IS FURTHER ORDERED that defendants' motions to dismiss the intentional tort claims be and hereby are granted to the extent that such claims are asserted against the City and County.
IT IS FURTHER ORDERED that any Jane Doe plaintiff must provide her name to defendants within 30 days if she desires to continue a claim under 42 U.S.C. § 1983.
IT IS FURTHER ORDERED that plaintiffs must identify and serve within 60 days any employees of the City and County against whom a claim pursuant § 1983 is alleged.
IT IS FURTHER ORDERED that defendants' motions to strike be and hereby are granted in part and denied in part.
Donald E. Ziegler, United States District Judge