Opinion
An action was brought under civil rights statutes by a plaintiff alleging he had been illegally arrested for pandering. On motion by the defendants to dismiss, the District Court, Reynolds, Chief Judge, held that an action for illegal arrest, i. e., an arrest without probable cause to believe that the accused violated a criminal statute, may be brought under the statute imposing liability upon a person who, under color of law, deprives another of rights, privileges or immunities incurred by Constitution and laws. The Court also held, however, that plaintiff who alleged illegal arrest but did not allege invidious discrimination did not allege claim under civil rights statute imposing liability for conspiracy to interfere with civil rights.
Motion to dismiss claim under civil rights conspiracy statute granted; motion to dismiss claim under statute imposing liability for deprivation under color of laws denied.
Victor C. Cairo, Racine, Wis., for plaintiff.
Jack Harvey, City Atty., Edward A. Krenzke, Deputy City Atty., and William F. Bock, Asst. City Atty., Racine, Wis., for defendants.
DECISION AND ORDER
REYNOLDS, Chief Judge.
Plaintiff contends he was illegally arrested for pandering in July 1972. He brings this action pursuant to 42 U.S.C. §§ 1983 and 1985 for monetary relief. Defendants move to dismiss this action.
An action for an illegal arrest, i. e., an arrest without probable cause to believe the accused has violated a criminal statute, may be brought under 42 U.S.C. § 1983. Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971); MacDonald v. Musick, 425 F.2d 373 (9th Cir.1970); Kerr v. Chicago, 424 F.2d 1134 (7th Cir.1970); Joseph v. Rowlen, 402 F.2d 367 (7th Cir.1968); Marland v. Heyse, 315 F.2d 312 (10th Cir.1963). Ever since the Supreme Court decision of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), a wide variety of tort actions, once the exclusive concern of the state judiciary, are properly presented to the federal courts under § 1983. In his concurring opinion in Monroe, Justice Frankfurter suggested the effect of that decision by summarizing the attitude that had existed in the past:
‘ * * * Most courts have refused to convert what would otherwise be ordinary state-law claims for false imprisonment or malicious prosecution or assault and battery into civil rights cases on the basis of conclusory allegations of constitutional violation. * * *’ Monroe v. Pape, 365 U.S. at 240 n. 68, 81 S.Ct. at 512.
Plaintiff does not state a claim under 42 U.S.C. § 1985, however. Conclusory allegations of conspiracy, without any specification of the agreement forming the conspiracy, are insufficient. Powell v. Workmen's Compensation Board of State of New York, 327 F.2d 131 (2d Cir.1964); Thompson v. Heither, 235 F.2d 176 (6th Cir.1956); Post v. Payton, 323 F.Supp. 799 (E.D.N.Y.1971); Weise v. Reisner, 318 F.Supp. 580 (E.D.Wis.1970). Moreover, the plaintiff's claim rests on considerations of due process, not equal protection. He has not alleged the invidious discrimination which § 1985 was designed to prohibit. If, in fact, the defendants conspired to cause an illegal arrest and the arrest that resulted was illegal, § 1983 is capable of providing plaintiff full relief, and recourse to § 1985 is not necessary.
On a motion to dismiss, the allegations of fact in plaintiff's complaint are taken as true, and all inferences from those facts are drawn in plaintiff's favor. Defendants' affidavits which dispute the factual allegations have no bearing on such a motion.
It is therefore ordered that defendants' motion to dismiss the claim under 42 U.S.C. § 1985 be and it hereby is granted.
It is further ordered that defendants' motion to dismiss the claim under 42 U.S.C. § 1983 be and it hereby is denied.