MEMORANDUM OPINION AND ORDER
The parties are before the court on defendants’ motion for partial judgment on the pleadings pursuant to Rule 12(c) or for partial summary judgment pursuant to Rule 56 on federal claims arising under the Civil Rights Act. Defendants maintain the complaint fails to state a claim upon which relief can be granted: (1) under 42 U.S.C. § 1983 because it fails to establish defendants were acting under color of law as required by the terms of the statute; (2) under 42 U.S.C. § 1985(3) because it fails to establish any class-based animus or motivation behind the alleged conspiracy; and (3) under 42 U.S.C. § 1986 because recovery under the statute is contingent upon the existence of a viable claim under 42 U.S.C. § 1985. After careful consideration of the sensitive and complicated constitutional questions raised by the instant controversy *485 the court concludes that defendants’ motion must be granted and judgment entered in their favor on plaintiff’s Civil Rights Act claims.
FACTUAL BACKGROUND
Lawrence Baer, an adult Caucasian male, is a follower of the Reverend Moon and a member of the Unification Church. He brings this action against his parents and the Freedom of Thought Foundation (hereinafter Foundation) for violations of sections 1983, 1985(3) and 1986 of the Civil Rights Acts, seeking both injunctive and compensatory relief. Federal jurisdiction is premised upon diversity as well as federal question grounds, and pendent jurisdiction is asserted with regard to non-federal tort claims for abuse of process, false imprisonment, assault and battery, and invasion of privacy.
The gravamen of the complaint is that defendants conspired to and did abduct plaintiff with the purpose of coercing him to relinquish his religious beliefs. The Foundation is-alleged to be in the business of “legal deprogramming.” Deprogramming, as the term has become known, is the process whereby individuals who are members of certain religious groups are subjected to a scheme of brain-washing or mind control in an attempt to dissuade them of their religious beliefs. The Foundation allegedly obtains its “business” from persons who are in disagreement with the religious beliefs of a relative. In this case, the Foundation and plaintiff’s parents allegedly entered into an agreement for plaintiff’s abduction and brainwashing. From the complaint’s scenario it appears that pursuant to the directions of the Foundation, Dr. and Mrs. Baer filed a petition in the Superior Court of Marin County requesting their appointment as conservator for their son. After the court issued the requested order agents of the Foundation abducted plaintiff while he was walking with his parents on a street in Sausalito and took him into custody with the assistance of the local police. Defendants then began to deprogram the plaintiff.
As a proximate result of these actions Lawrence Baer claims he was deprived of his rights: (a) to freedom of religion, association and speech, (b) to due process and equal protection of the laws, (c) to be secure in his person and property, (d) to be let alone and (e) to travel freely. These rights, he asserts, are guaranteed by state law and by the First, Fourth, Fifth, Ninth and Fourteenth Amendments.
THE UNDER COLOR OF LAW REQUIREMENT OF SECTION 1983
To frame a cause of action under 42 U.S.C. § 1983 the plaintiff must allege facts which show the defendants have acted under color of state law or authority and have deprived the plaintiff of a right, privilege or immunity secured by the Constitution and the laws of the United States.
1
Sykes v. California,
The key feature of this type of liability is that the individual possesses power, conferred by statute or otherwise, which the ordinary citizen does not possess and *486 which allows the individual to take actions normally associated with those taken by public officials acting on behalf of the state. Dennis v. Hein,413 F.Supp. 1137 , 1140 (D.S.C.1976);
See also Oller v. Bank of America,
More often, private action is deemed state action because the individual wilfully participates in joint activity with the state or its agents.
See, e. g., Adickes
v.
S. H. Kress and Co.
Although plaintiff alleges defendants acted under color of the California conservatorship law to deprive him of his constitutional rights,
2
it is well established that “the fact that in the deprivation resort was had to the courts of the state does not supply the necessary state action.”
Phillips v. Bridge Structural and Ornamental Iron Workers Local 118,
This court is fortified in its conclusion that defendants did not act under color of law when they resorted to the state court for an ex parte conservatorship order by an analogous Seventh Circuit case. In
Brown v. Dunne,
Plaintiffs argue that the defendants used the Illinois statutes ‘as a mask and shield for the commission’ of the ‘criminal’ and ‘tortious’ conduct charged in the complaint. This argument supports the district court’s view that plaintiffs’ real complaint is that defendants misused the statutes in a state forum. This does not present a denial of rights under the Fourteenth Amendment, or a claim upon which relief could be granted under the Civil Rights Act.409 F.2d at 343 (citations omitted).
Likewise, plaintiff here argues defendants used the California conservator-ship law as a “cover” for the commission of the tortious conduct alleged in the complaint. His pendent state claim for abuse of process is incorporated by reference into his § 1983 claim and specifically alleges that defendants “knowingly and fraudulently misused the conservatorship/guardianship process” and that defendants’ “ulterior purpose” in so misusing state process was “to obtain custody of plaintiff so that they could spirit him to Arizona, imprison him and subject him to brainwashing and mind-control in an effort to dissuade him of his religious beliefs.” This private misuse of California law presents neither a denial of constitutional rights under the Fourteenth Amendment nor a claim upon which relief could be granted under the Civil Rights Act.
Plaintiff also relies on the joint participation or conspiracy method of establishing defendants acted under color of state law. In support of this proposition he refers to the paragraph of the complaint in which it is alleged that “uniformed members of the Sausalito Police Department and agents or employees of the Foundation forcibly took Plaintiff into custody.” He also points to the portions of the complaint mentioning the Marin County Superior Court as indicative of the fact that the judge who issued the conservatorship order is implicated as well. Admitting he has not alleged a conspiracy between the state officials and the defendants, plaintiff asserts he has met his burden by alleging “joint participation.”
The issue raised by the allegations of “joint participation” in the complaint is not simply whether facts alleging a lesser level of concerted activity will suffice to state a claim under § 1983, but whether the complaint states sufficient facts to establish that the state officials, mentioned but not named as party defendants, participated in the wrongful conduct with the shared intention of depriving plaintiff of his constitutional rights. There is nothing magical about the word “conspiracy,” and courts have held that a showing of concerted activity will suffice to state a claim under § 1983.
See, e. g., Canty v. City of Richmond,
There is no allegation in the complaint that the Sausalito police were a part of a conspiracy between Lawrence Baer’s parents and the Foundation to deprive him of his constitutional rights. Neither is there any allegation that the police shared this goal. The facts pleaded show only that *488 the police assisted in the effectuation of a court order, which is insufficient to establish that defendants and the police came to a “meeting of the minds.” The same is true with respect to the superior court judge. There is no allegation in the complaint that the judge was conspiring with the defendants, or, short of conspiring with them, shared their intention to deprive Lawrence Baer of his constitutional rights. The complaint, therefore, fails to state a § 1983 claim upon which relief can be granted under the second method as well as the first.
Assuming for the moment plaintiff could amend his complaint to allege a conspiracy between the public officials and the defendants he would still have to allege sufficient facts to overcome the immunity from liability courts have granted public officials in § 1983 suits. “Private persons cannot be' held liable for conspiracy under the Civil Rights Statutes if the other conspirators are state officials who are themselves immune to liability under the facts alleged.”
Sykes v. California (Department of Motor Vehicles),
It is well established that judges are absolutely immune from liability for acts done in the performance of their judicial functions.
Pierson v. Ray,
Unlike judges, police officers only enjoy a qualified immunity for acts done in the performance of their official functions. Their immunity extends only to acts taken in good faith and upon a reasonable belief.
Pierson v. Ray,
The complaint as presently drafted fails to state a claim under 42 U.S.C. § 1983 because it fails to allege action under color of state law. Accordingly, defendants are entitled to judgment on the pleadings dismissing the § 1983 cause of action. Plaintiff, however, has requested leave to amend if dismissal is granted. Since it appears to the court that amendment would be futile in most respects, plaintiff is given leave to amend his complaint only if he can allege facts sufficient to demonstrate a conspiracy of the variety described in this memorandum involving defendants and the Sausalito Police department. 6
SECTION 1985(3), CLASS BASED ANIMUS AND CONGRESSIONAL POWER
A claim based on § 1985(3) must allege all of the following elements: (1) a conspiracy to go in disguise on the highway or on the premises of another; (2) for the purpose of depriving a person or class of persons of the equal protection of the.laws, or of equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy resulting in; (4) injury to the person or to property or deprivation of any of the rights or privileges of a citizen.
7
Griffin v. Breckenridge,
The language requiring intent to deprive of equal protection or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.403 U.S. at 102 ,91 S.Ct. at 1798 .
The Ninth Circuit has further explained this requirement in the following manner:
[T]he statutory action is restricted to injuries inflicted upon the victim because of his status as a member of an identifiable class; the statutory “purpose to deprive of equal rights” requirement is inferred *490 from the racial or other class motivation underlying the tortious conduct.
Under Griffin, we think the class status providing the motivating animus must be created by a fact other than possession of the right deprived — otherwise virtually, every conspiratorial deprivation of a primary right would be actionable under § 1985(3) . . . Lopez v. Arrowhead Ranches,523 F.2d 924 , 927-28 (9th Cir. 1975).
The complaint before the court fulfills the requirements of elements (1), (3) and (4). It alleges that Lawrence Baer was abducted while he was with his parents on a street in Sausalito and thereafter agents of the Foundation detained and restrained him in various places with the intent of coercing him into relinquishing his religious beliefs. This much defendants concede. What defendants dispute is that the class-based animus essential to a § 1985(3) claim is present in this case.
Most of the allegations in the complaint regarding defendants’ motives involve claims that they were engaging in the alleged activities for the purpose of depriving Lawrence Baer as an individual of his constitutional rights. However, plaintiff maintains that the allegation the Foundation holds itself out to be a “business” dedicated to deprogramming members of certain religious “factions” satisfies the class-based animus requirement, insofar as it may be inferred from this alleged purpose of the Foundation that its agents and plaintiff’s parents conspired to deprive plaintiff of his constitutional rights because of his status as a member of such a religious group. The court is satisfied the complaint alleges sufficient facts to establish that a class-based animus existed in this case.
A far more important issue raised by the complaint is whether a religious group may be deemed a class for purposes of § 1985(3); it is a question of first impression not only in this court but in the Ninth Circuit as well. In
Griffin
the Supreme Court dealt with an alleged beating of a black man by a group of whites who believed he was a member of a civil rights organization. The Court had no difficulty in concluding that such racially-motivated discrimination, which “lies so close to the core of the coverage intended by Congress,” was redressable under § 1985(3).
Certainly, referring to the “equal and impartial course of justice” mentioned in the second section of the third page. This obstruction of the equal and impartial course of justice, however, must, under the provisions of all this bill, go so far as to deny and withhold from citizens of the United States that equality of protection in seeking justice which the Constitution of the United States gives them. We do not undertake in this bill to interfere with what might be called a private conspiracy growing out of a neighborhood feud of one man or set of men against another to prevent one getting an indictment in the State courts against men for burning down his barn; but, if in a case like this, it should appear that this conspiracy was formed against this man because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, . . . then this section could reach it. Cong.Globe, 42d Congress, 1st Sess. 567 (1871) (remarks of Senator Edmunds).
This passage demonstrates that the 1871 Congress did consider the possibility that § 1985 would be applied in general to classes of citizens other than racial groups and in particular to religious groups.
*491
Since
Griffin
several federal appellate and district courts have extended the protection of § 1985(3) to religious groups. Shortly after the Supreme Court decided
Griffin,
the Eighth Circuit in
Action v. Gannon,
{17] Although by no means compelling, the above authorities support this court’s conclusion that the religious followers of the Reverend Moon constitute a class within the meaning of § 1985(3). This dispute has many of the earmarks of a case involving racial discrimination. The raison d’etre of the Foundation is to deprogram members of particular religious groups whose views the Foundation finds repugnant. A fair and reasonable reading of the complaint demonstrates the Foundation singled out Lawrence Baer because of his status as a member of such a group, namely the Unification Church, and not because of his individual beliefs. In other words, this class status is not created by the mere, fact plaintiff possesses the right to freedom of religion, as do all persons, but rather by the fact he is a member of a fringe or minority religious group. It is defendants’ abhorrence of this group that motivates them to deprogram individuals such as plaintiff. While religious status may differ from racial status because it is not a congenital and inalterable trait, membership in a minority religious group, like membership in a minority racial group, has often excited the fear, hatred and irrationality of the majority. Two thousand years of human history compellingly prove that no easier road to martyrdom is found than in adherence to an unpopular religious faith. For these reasons, and because the legislative history does not indicate otherwise, this court concludes that religious discrimination may be encompassed by the terms of § 1985(3).
Once it is established that the complaint sufficiently alleges the elements of a § 1985(3) cause of action, however, the court must observe the teachings of
Griffin
and identify a source of congressional power to reach the private conspiracy so alleged.
Griffin v. Breckenridge,
The Supreme Court also held in
Griffin
that the creation of a statutory cause of action for black persons who have been the victims of racially motivated private conspiracies was a valid exercise of Congress’ power to enforce the guarantees of the Thirteenth Amendment.
This interpretation of the substantive power of Congress under § 2 was recently reaffirmed by the Supreme Court in
Runyon
v.
McCrary,
Whether § 2 of the Thirteenth Amendment empowers Congress to regulate private discrimination not based on
*493
race is an open question.
10
Nevertheless, for this court to hold that § 1985(3) as applied to a private religious conspiracy is a valid exercise of Congress’ § 2 power would require, preliminarily, a judicial determination that Congress has concluded the badges and incidents of slavery are borne by religious minorities as well as racial minorities.
11
See
Buchanan,
The Quest for Freedom: A Legal History of the Thirteenth Amendment,
12 Hous.L.Rev. 331, 843, 1080; 13 Hous.L.Rev. 63 (1975); Note,
Federal Power to Regulate Private Discrimination: The Revival of the Enforcement Clauses of the Reconstruction Era Amendments,
74 Colum.L.Rev. 449, 500-05 (1974). The Supreme Court has yet to interpret § 2 of the Thirteenth Amendment as conferring upon Congress the power to enact a statute creating a cause of action against racially motivated private interference with the bill of rights guarantees,
see Runyon v. McCrary,
Undoubtedly because the Supreme Court has never expanded the scope of Congress’ § 2 power beyond the protection of racial minorities, courts considering congressional power to reach private conspiracies under § 1985(3) have looked to the enforcement clause of the Fourteenth Amendment. At first blush it seems more logical that the power to enforce the guarantees of equal protection and due process would support a law proscribing private conspiracies to deny religious freedom than the power to eradicate badges and incidents of slavery. Yet decisions of the Supreme Court interpreting the substantive power of Congress under § 5 of the Fourteenth Amendment reveal significant uncertainty that § 5 power will suffice where § 2 power fails.
No single interpretation of the expanse of Congress’ § 5 power has consistently commanded the adherence of a majority of the members of the Supreme Court. In
Katzenbach v. Morgan,
Only four years later, however, Justice Brennan could not muster a majority of the Court in support of his view that § 5 gives Congress definitional authority over the substantive reach of the Fourteenth Amendment. The case,
Oregon v. Mitchell,
Katzenbach v. Morgan, supra, does not hold that Congress has the power to determine what are and what are not “compelling state interests” for equal protection purposes. . . . The Court’s opinion made clear that Congress could impose on the States a remedy for the denial of equal protection that elaborated upon the direct command of the Constitution, and that it could override state laws on the ground that they were in fact used as instruments of invidious discrimination even though a court in an individual lawsuit might not have reached that factual conclusion. Cf. Swain v. Alabama,380 U.S. 202 [,85 S.Ct. 824 ,13 L.Ed.2d 759 ],
But it is necessary to go much further to sustain § 302. The state laws that it invalidates do not invidiously discriminate against any discrete and insular minority. Unlike the statute considered in Morgan, § 302 is valid only if Congress has the power not only to provide the means of eradicating situations that amount to a violation of the Equal Protection Clause, but also to determine as a matter of substantive constitutional law what situations fall within the ambit of the clause, and what state interests are “compelling.”400 U.S. at 295-96 ,91 S.Ct. at 350 .
Thus, at least three Justices appear to concede that Congress has the power under § 5 to pass preventative legislation to rectify invidious discrimination, but they steadfastly maintain Congress has no such power to determine what constitutes invidious discrimination violative of the Fourteenth Amendment.
Oregon v. Mitchell
is the Supreme Court’s most recent pronouncement on the power of Congress under § 5 of the Fourteenth Amendment. As the above examination of that case reveals, however, the question whether Congress has the power to define the substantive reach of § 5 is still a hotly contested one. This conflict over the extent of Congress’ § 5 power is particularly important to the instant case for the following reasons. The Fourteenth Amendment by its express terms is limited to state action, and the Supreme Court has never held that it implicitly prohibits private discrimination. Neither has the Court directly held that § 5 supplied the power for congressional legislation designed to eliminate racial, religious or sexual discrimination in the private sector. Such legislation has been sustained instead as an exercise of Congress’ commerce power.
See e. g., Heart of Atlanta Motel, Inc. v. United
*495
States,
The closest the Supreme Court has come to holding that Congress has the power under § 5 to regulate private conduct not cloaked with the authority of the state is its decision in
United States v. Guest,
Only one federal appellate court, the Eighth Circuit, has reached the contrary conclusion.
12
In
Action v. Gannon,
Aside from the absence of a firm constitutional foothold this court is persuaded by the limits of its own power that § 1985(3) should not be applied to private religious controversies. As a blue print for the exercise of power, the Constitution protects individuals from oppression by government not from private villany. Accordingly, private conduct is left to state regulation or the freedom of individual choice. This is not to say that the past two decades have not witnessed a subtle restructuring of the Constitution. In its wisdom, Congress has determined that private discrimination on grounds of race, religion, sex or national' origin, for example, so affects the national welfare that it must be prohibited. See, e. g., Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. Such restructuring of the Constitution, if it be one, may be justified when accomplished by the representatives of the people after long debate and careful analysis. It is an entirely different matter, however, for a federal trial court with only equivocal legislative history and scant judicial precedent to work the same result. This court has the power to interpret the Constitution and the law but not the power to write its own.
Since the complaint establishes no factual basis for finding any form of state involvement, it fails to state a claim upon which relief can be granted under § 1985(3) as well as § 1983. Inasmuch as the § 1985 cause of action is insufficient the allegations under 42 U.S.C. § 1986 must also fail.
Taylor v. Nichols,
Notes
. Rev.Stat. § 1979, 42 U.S.C. § 1983 provides: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
. Plaintiff does not challenge the constitutionality of this law. 1957 Cal.Stats., ch. 1902, § 1 (current version at Cal.Prob.Code § 1751 (West Supp. 1978)). Rather, the gist of the complaint is that defendants did not follow the procedure it prescribed.
Cf. Coltharp v. Cutter,
. Judicial immunity thus includes judicial acts done maliciously or corruptly.
Pierson v. Ray,
. As is the case with judges, an officer’s good faith enforcement of a law that is subsequently held to be invalid is still a good defense to a § 1983 suit.
Milton v. Nelson,
. Defendants request summary judgment on the ground plaintiff himself has refuted the allegation in the complaint that the Sausalito police were present when he was abducted. When, answering interrogatories requesting him to list all persons who were present at the time he was taken into custody plaintiff did not include any Sausalito police officers. If this answer is correct there would be no basis for inferring that a conspiracy existed between defendants ancj the police. Nevertheless, it is improper for this court to consider materials outside the pleadings in ruling on a Fed.Rule Civ.Pro. 12(c) motion for summary judgment.
Condosta v. Vermont Electronic Cooperative,
. This is not to suggest this court would look with favor upon an attempt to bring new parties into the litigation at this late date.
. Rev.Stat. § 1980, 42 U.S.C. § 1985(3) provides:
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 protection of the laws or of equal privileges and immunities under the laws [and] 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 Court reaffirmed that “the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well
*492
as governmental interference.”
. This court also perceives no basis upon which congressional power under the commerce clause could be invoked to reach the private conspiracy in this case.
. It should be noted, however, congressional legislation effectuating the Thirteenth Amendment’s express prohibitions of slavery and involuntary servitude applies to all groups and not just to racial minorities.
See, e. g., Ciyatt v. United States,
. Unlike §§ 1981 and 1982, § 1985 was originally codified in the Civil Rights Act of 1871 which was enacted to enforce the provisions of the Fourteenth Amendment. One commentator has concluded after analyzing the legislative history of the 1871 Act that the provisions relating to private conduct provoked heated debate and a split of opinion on the question of congressional power to reach such conduct. Even those leaders who had advocated a maximum view of congressional power during the debates surrounding the passage of the Civil Rights Act of 1866'reversed their position during the debates surrounding the passage of the Act of 1871. Buchanan, The Quest for Freedom: A Legal History■ of the Thirteenth Amendment, 12 Hous.L.Rev. 331, 339-40 (1975).
. But see Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975) (opinion withdrawn for mootness) (holding that private employee who was a member of an environmental group had a § 1985(3) cause of action for employment discrimination because § 5 of the Fourteenth Amendment was believed to encompass discriminatory acts by private persons).
Although the Third Circuit has also allowed a private employee to recover for employment discrimination under § 1985(3), the court failed to consider whether Congress possessed the power to reach such private discrimination.
See Richardson v. Miller,