C. Plaintiff's Claims under Section 1985(3)
Section 1985(3) was passed by the Reconstruction-era Congress in order to provide a cause of action against participants in private conspiracies to deprive others of legal rights. Volunteer Medical Clinic, Inc. v. Operation Rescue, 948 F.2d 218, 223 (6th Cir. 1991) citing Griffin v. Breckenridge, 403 U.S. 88, 101, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971). That section states:
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 protections of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; 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.
The elements of a cause of action under section 1985(3) are (1) a conspiracy; (2) 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 laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States. United Brotherhood of Carpenters & Joiners of America, Local 610 v. Scott, 463 U.S. 825, 828-829, 103 S. Ct. 3352, 3356, 77 L. Ed. 2d 1049 (1983); Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 627 (11th Cir. 1992). More specifically, the second element requires a showing of some racial or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action. Id. at 628. Such discriminatory purpose is not presumed; intentional discrimination must be clearly shown. deBotton v. Marple Township, 689 F. Supp. 477, 482 (E.D.Pa. 1988). That women constitute a cognizable class under § 1985(3) is now generally well recognized. Volunteer Medical Clinic, supra, at 224, citing, inter alia, Carchman v. Korman Corp., 594 F.2d 354, 356 (3rd Cir.), cert. denied, 444 U.S. 898, 100 S. Ct. 205, 62 L. Ed. 2d 133 (1979); Roe v. Operation Rescue, 710 F. Supp. 577, 581 (E.D.Pa. 1989), reversed in part on other grounds, 919 F.2d 857 (3rd Cir. 1990).
Instantly, we find that while the plaintiff's complaint sufficiently alleges three out of the four elements necessary to state a claim under § 1985(3), it fails to make clear the "whys" and "wherefores" behind the alleged conspiracy in that it avers only in vague and conclusory manner that the defendants "agreed and conspired between themselves and possibly others, to violate the civil, Constitutional and statutory rights of plaintiff and to deny her the equal protection of the laws and due process." However, in view of the federal rule policy of deciding cases on the basis of the substantive rights involved rather than on technicalities, which policy requires that a plaintiff be given every opportunity to cure a formal defect in his or her pleading, Ms. Palace shall be given the opportunity to correct the above-referenced deficiencies by filing a second and final amended complaint within twenty days of the entry date of this Memorandum and Order. See: 5A Wright & Miller, Federal Practice and Procedure: Civil 2d § 1357, 361-364 (1990).
D. Plaintiff's § 1986 Cause of Action
Section 1986, in turn states, in pertinent part:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action . . .
Inasmuch as section 1986 creates a right of action for failure to prevent a wrong mentioned in section 1985, 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. Guillory v. St. Landry Parish Police Jury, 802 F.2d 822, 825 (5th Cir. 1986), cert. denied, 482 U.S. 916, 107 S. Ct. 3190, 96 L. Ed. 2d 678 (1987); Howard v. Pine Forge Academy, 678 F. Supp. 1120, 1125 (E.D.Pa. 1987); Silo v. City of Philadelphia, 593 F. Supp. 870, 874 (E.D.Pa. 1984). In view of plaintiff's failure to state a cause of action under section 1985, we are likewise compelled to grant the defendants' motion with respect to her claim under § 1986. Leave to replead this claim in a separate count will also be given.
E. Plaintiff's State Law Claim for Assault and Battery
Finally, defendants submit that plaintiff's state law claim be dismissed as well because she has stated no federal cause of action against them. In light of our previous rulings, this court shall retain supplemental jurisdiction of Count II of the amended complaint charging the defendant Robert Deaver with the common law tort of assault and battery. See: 28 U.S.C. § 1367(a); Roe v. Operation Rescue, Inc., 919 F.2d 857, 867 (3rd Cir. 1990).
An appropriate order follows.
AND NOW, this day of December, 1993, upon consideration of Defendants' Motion to Dismiss the Plaintiff's Amended Complaint, it is hereby ORDERED that the Motion is GRANTED IN PART and DENIED IN PART and Plaintiff's claims under 42 U.S.C. §§ 1985(3) and 1986 are DISMISSED with leave to file a second and final amended complaint within twenty (20) days of the filing date of this Memorandum and Order.
BY THE COURT:
J. CURTIS JOYNER, J.
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