Opinion
8:02CV5010.
February 4, 2003
MEMORANDUM AND ORDER
This matter is before the court on defendants' motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), Counts III and IV, Filing No. 14, of the plaintiff's complaint, Filing No. 1. Plaintiff was found guilty of murder in state district court, but his conviction was reversed by the Nebraska Supreme Court. He then filed this lawsuit alleging that the defendants in this case conspired to force witnesses to lie in the state court criminal case against him. I have carefully reviewed the record, briefs in support and in opposition, and the relevant case law. I conclude that defendants' motion to dismiss should be granted.
In considering a motion to dismiss a complaint under Rule 12(b)(6), the court must assume all the facts alleged in the complaint are true and must liberally construe the complaint in the light most favorable to the plaintiff. Schmedding v. Tnemec Co., 187 F.3d 862, 864 (8th Cir. 1999). A Rule 12(b)(6) motion to dismiss a complaint should not be granted unless it appears beyond a doubt that the plaintiff can prove no set of facts which would entitle him to relief. Id. Thus, as a practical matter, a dismissal under Rule 12(b)(6) should be granted only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief. Id.
Plaintiff has filed a claim in Count III of his complaint contending that defendants have violated his rights under 42 U.S.C. § 1985. Section 1985 provides in relevant part that it is unlawful to conspire to intimidate or retaliate against witnesses or parties. Defendants argue that plaintiff must allege a class-based or race-based conspiracy to deny equal protection under § 1985(3). Defendants contend that plaintiff has failed to do so. Plaintiff argues that his complaint, although admittedly not totally clear from the pleading, actually alleges a § 1985(2), clause one, claim and that such claim does not require a showing of racial animus to support a conspiracy theory.
I have carefully reviewed plaintiff's complaint. If, as urged by the defendants, the plaintiff is alleging a claim under § 1985(3), he must allege a "class-based, invidiously discriminatory animus." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 268 (1993); Griffin v. Breckenridge, 403 U.S. 88, 101-02 (1971). There are no allegations that allege race as a basis of the conspiracy in plaintiff's complaint. Consequently, to the extent that plaintiff's claim is intended to allege a § 1985(3) claim, I conclude that he has failed to do so.
However, plaintiff argues that he really intended to allege a § 1985(2), clause one, claim. Plaintiff argues that the defendants intimidated a witness in his case, Adam Barnett, into fabricating evidence and lying about the true facts of the case. Plaintiff contends that there is no requirement that this particular part of 42 U.S.C. § 1985(2) must include a claim of racial-based animus.
Although there is early case law to the contrary, I agree with the plaintiff that no racial or class-based animus need be alleged in § 1985(2), clause one. In Jones v. United States, 536 F.2d 269 (8th Cir. 1976), the Eighth Circuit in dictum concluded that racial or class-based discrimination was required to state a claim under section 1985. Id. at 271. However, in Kush v. Rutledge, 460 U.S. 719 (1983), the court concluded that the first part of § 1985(2), dealing with conspiracy to intimidate witnesses, does not require a party to allege racial or class-based discriminatory animus. The court reasoned that § 1985 sets forth five categories of conspiracies. The first two and the fifth categories, said the court, including § 1985(2), clause one, do not contain language requiring any intent to deprive a person of equal protection of the laws. Id. at 724-25. The Eighth Circuit has concluded that "Kush has effectively overruled our decision in Jones." Wisdom v. Department of Housing and Urban Development, 713 F.2d 422, 426 (8th Cir. 1983). I conclude that § 1985(2), clause one, does not require a showing of racial or class-based animus.
However, my analysis must not end there. The language of § 1985 states: "If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court. . . ." As defined in 28 U.S.C. § 451, "court of the United States" means Article III courts and other federal courts that have been created by Congress. In order for a cause of action to exist under § 1985(2), clause one, the alleged conspiracy to intimidate the witnesses must have occurred in a federal lawsuit. Shaw v. Garrison, 391 F. Supp. 1353, 1369 (D. La. 1975), aff'd, 545 F.2d 980 (5th Cir. 1977), rev'd on other grounds sub nom., Robertson v. Wegmann, 436 U.S. 584 (1978); see also, McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1036, n. 2 (11th Cir. 2000); Lewellen v.Raff, 843 F.2d 1103, 1116, n. 16 (8th Cir. 1988); Bradt v. Smith, 634 F.2d 796, 800-01 (5th Cir. 1981); Carter v. Church, 791 F. Supp. 298, 300 (M.D.Ga. 1992); Graves v. United States, 961 F. Supp. 314, 319 (D.D.C. 1997). Injuries that occur in state trial courts are not included under the first clause of § 1985. See McAndrew, 206 F.3d at 1036, n. 2.
Consequently, I shall grant defendants' motion to dismiss this claim. With regard to plaintiff's claim in Count IV, I conclude that Count IV must likewise be dismissed. Both parties concede that a claim under 42 U.S.C. § 1986, as alleged in Count IV, is purely derivative of a cause of action under § 1985. See Robinson v. Fauver, 932 F. Supp. 639, 646 (N.J. 1996); DePugh v. Sutton, 917 F. Supp. 690, 697 (W.D.Mo. 1996), aff'd, 104 F.3d 363 (8th Cir. 1996). A § 1986 claim is dependent on a valid claim under § 1985. Kaylor v. Fields, 661 F.2d 1177, 1184 (8th Cir. 1981). Since I have determined that the § 1985 claim is without merit, I shall likewise dismiss the § 1986 claim.
THEREFORE, IT IS ORDERED that defendants' motion to dismiss Counts III and IV, Filing No. 14, is hereby granted.