The plaintiffs, Larry Joe Purkey and James Edward Cripps, initiated this civil rights action to redress alleged violations of their First, Sixth, and Eighth Amendment rights. The vehicles the plaintiffs have chosen for the assertion of these alleged constitutional violations are 42 U.S.C. §§ 1981, 1983, 1985 and 1986. The plaintiffs ground jurisdiction on 28 U.S.C. §§ 1331, 1343(3) and (4), 2201 et seq., 2251, 2254 and 42 U.S.C. § 1988.
The defendants are Edward G. Koch, John C. Ciolino, Jim Garrison, who was the District Attorney of New Orleans, C. Murray Henderson, who is the Warden of the Louisiana State Penitentiary at Angola, Louisiana, Edward W. Edwards, who is the Governоr of the State of Louisiana, William J. Guste, who is the Attorney General of the State of Louisiana, Louis Heyd, who was the Criminal Sheriff of Orleans Parish, Charles Ward, Matthew S. Braniff, Jerome Winsberg, Thomas M. Brahney, Jr., Rudolph F. Becker, Jr., Oliver P. Schulingkamp, Frank J. Shea, Bernard J. Bagert, Israel M. Augustine, Jr., *105 and Alvin V. Oser, who are the Judges of the Criminal District Court of Orleans Parish, Joseph R. Bossetta, Andrew C. Búcaro, James E. Glancy, Jr., W. Blair Lancaster, Jr., who are the Municipal Court Judges of the City of New Orleans, and the City of New Orleans. Though not identified in the caption of the complaint as a defendant, the State of Louisiana is named as a defendant in the body of the complaint.
The suit arises from a state criminal proceeding in which the plaintiffs, Mr. Purkey and Mr. Cripps, .were defendants. The plaintiffs were charged with murder in the Criminal District Court of the Parish of Orleans, State of Louisiana. Since the plaintiffs were indigent, the Criminal District Court Judge appointed Mr. Ciolino to represent Mr. Purkey and Mr. Koch to represent Mr. Cripps. The trial resulted in the cоnviction of Mr. Purkey and Mr. Cripps and they were sentenced to death. Mr. Purkey and Mr. Cripps are incarcerated presently in the Louisiana State Penitentiary at Angola, Louisiana.
The plaintiffs allege that their appointed counsel initiated an appeal with the Louisiana Supreme Court but failed to file briefs or appear for argument. The Louisiana Supreme Court reprimanded Mr. Ciolino and Mr. Koch for that incident.
See,
State of Louisiana ex rel. Gremillion v. Ciolino,
From these factual allegations, the plaintiffs cite numerous violations of their civil rights. The violations may be summarized as the rendition of ineffective counsel, appointment of Mr. Koch and Mr. Ciolino by judges who knew or should have known of Mr. Koch’s and Mr. Ciolino’s propensity to render an ineffective counsel, failure to provide funds with which appointed counsel were to be compensated and failure to allow the plaintiffs to seek other appointed counsel. As a state cause of action, the plaintiffs assert a legal malpractice claim against Mr. Koch and Mr. Ciolino. Based on these allegations and civil rights statutes, the plaintiffs seek the following relief:
1. Actual damages in the amount of $1,000,000 and punitive damages in the amount of $500,000 in favor of Mr. Purkey and against the State of Louisiana and Mr. Ciolino;
2. Actual damages in the amount of $1,000,000 and punitive damages in the amount of $500,000 in favor of Mr. Cripps аnd against the State of Louisiana and Mr. Koch;
3. A declaratory judgment that the ' system of appointing counsel without compensation in state criminal proceedings is unconstitutional;
4. An injunction prohibiting appointments under such a system;
5. A judgment releasing the plaintiffs from state confinement; and,
6. An injunction prohibiting further prosecution of the plaintiffs.
In connection with the requested declaratory and injunctive relief, the plaintiffs seek to represent the class of indigent, criminal defendants who have had court appointed attorneys.
By order of this Court on August 24, 1973, the plaintiffs were allowed to proceed in forma pauperis. The plaintiffs *106 now request the appointment of counsel to aid their presentation of this case. The statutory authorization for such an appointment of counsel is 28 U.S.C. § 1915(d), which reads:
“The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the aсtion is frivolous or malicious.”
When an individual civil litigant applies for appointment of counsel, the court at that time should determine if the plaintiff’s claim is frivolous or malicious. Allison v. Wilson,
An action is frivolous within the meaning of 28 U.S.C. § 1915(d) when the plaintiff’s realistic chance of ultimatе success is slight. Jones v. Bales,
First, the Court will address the plaintiffs’ claims which are based on 42 U.S.C. § 1981. 42 U.S.C. § 1981 reads as follows:
“All persons within the jurisdiction of the United States shall hаve the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
The purpose of the section is to give all citizens equal benefit of all laws which provide fоr the security and property as enjoyed by white citizens. Gonzales v. Fairfax-Brewster School, Inc.,
The plaintiffs seek damages from Mr. Koch, Mr. Ciolino аnd the State of Louisiana. The plaintiffs base claims for recovery of damages on 42 U.S.C. § 1983, which reads as follows:
“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 *107 an action at law, suit in equity, оr other proper proceeding for redress.”
The plaintiffs each pray for damage recovery against the State of Louisiana in the amount of $1,500,000. Various state officials, the governor, the attorney general, the warden of a state prison, a district attorney, certain criminal district court judges and a criminal sheriff are named as defendants. A state is not a person for 1983 purposes and is not amenable to suit under 1983. United States ex rel. Gittlemacker v. County of Philadelрhia,
Though only Mr. Koch and Mr. Ciolino are identified individually as being liable for damages, the Court will consider the plaintiffs’ 1983 claims for damages in respect to each defendant.
A 1938 claim against Mr. Koch and Mr. Ciolino has no chance of ultimate success. One element of a 1983 claim is that the conduct complained of was engaged in under color of state law. Hamrick v. Norton,
No 1983 claim for damages can be asserted successfully against Orleans Parish Criminal District Court Judge Frank Shea for his appointment of Mr. Ciolino and Mr. Koch to represent the plaintiffs. A judge acting in his judicial capacity is absolutely immune for damage suits for acts committed within their jurisdiction. Pierson v. Ray,
“When a defendant charged with a capital offense appears for arraignment without counsel, the court shall assign counsel for his defense. Such counsel may be assigned earlier, but must be assigned before the defendant рleads to the indictment. Counsel assigned in a capital case must have been admitted to the bar for at least five years. An attorney with less experience may be assigned as assistant counsel. The defendant shall not be required to pay for such representation.”
*108 LSA-C.Cr.P. art. 513 reads as follows:
“In other felony cases, when a defendant appears for arraignment without counsel, the court shall inform him, before he pleads to the indictment, of his right to have the court appoint counsel to dеfend him if he is financially unable to procure counsel. When a defendant states under oath that he desires counsel but is financially unable to procure counsel, and the court finds the statement to be true, the court shall assign counsel to the defendant before he pleads to the indictment. The defendant shall not be required to pay for such representation.”
No 1983 claim for damages is assertible against Judge Shea.
If the plaintiffs intended to assert 1983 claims against the governor, the attorney general, the criminal sheriff, the warden of the state prison, and the district attorney, those claims are frivolous. Assuming for the moment that factors such as personal involvement or respondeat superior can be established, the law is clear that individuals serving in those capacities are entitled to certain qualified immunities from damage suits. Governors are entitled to immunity
from
damage suits for acts within the sphere of executive activity. Scheuer v. Rhodes,
The plaintiffs cite 42 U.S.C. § 1985 as a further ground for recovery of damages. 42 U.S.C. § 1985 reads as follows:
“(1) If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;
Obstructing justice; intimidating party, witness, or juror
(2) If two or more persons in any State or Territory conspire to deter, *109 by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impеding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
Depriving persons of rights or privileges
(3) 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; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all person 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 suрport 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 ease 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.”
1985(1) and (2) by their clear terms do not apply in this case. The Court will, therefore, direct its attention to 1985(3). The Court, initially, must note that no allegation of conspiracy or concert of action is found in the entire complaint. The Court is of the opinion that the mention of 1985 without any mention of “conspiracy” or “concert of action” means that the cite to 1985 was included inadvertently and unintentionally in the complaint. Civil right cases have been dismissed when the court concluded that allegations of a conspiracy were vague and conclusory. Dieu v. Norton,
The plaintiffs cite 42 U.S.C. § 1986 as the basis for a damage recover. 42 U.S.C. § 1986 reads as follows:
“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; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.”
By its terms, section 1986 relates to section 1985. Where no сause of action was established or alleged under section 1985, a derivative action under section 1986 cannot be maintained. Johnston v. National Broadcasting Co., Inc.,
The plaintiffs seek a declaratory judgment that the appointment of counsel to represent indigent criminal defendants without compensating the .appointed attorneys is unconstitutional, and an injunction against state judges and officials to prohibit the operation of the appointment system. The concepts of immunity previously discussed are inapplicable to suits requesting declaratory and injunctive relief under 1983. Shellburne, Inc. v. New Castle County,
*111 The plaintiffs seek an injunction against the continued operation of the appointment system. In view of the Court’s conclusion that the appointment system is constitutional, the request for injunctive relief need not be discussed.
In challenging the constitutionality of the appointment system, LSA-C.Cr.P. art. 511-4, and in seeking an injunction against its continued operation, the plaintiffs have presented an issue which normally would require the convening of a three-judge court. 28 U.S.C. § 2281. When, however, no substantial constitutional question is raised, a single judge may dismiss a complaint which challenges the constitutionality of a state statute. Rosenthal v. Board of Education of Central High School District No. 3 of Town of Hempstead,
The plaintiffs claim the right to release from confinement. 28 U.S.C. §§ 2251 and 2254 are cited by the plaintiffs. The Court views the cоmplaint as mainly a request for declaratory relief, injunctive relief and damages. In the complaint, the plaintiffs describe the “Nature of the Proceeding” as follows:
“This proceeding is to recover monetary damages, compensatory and punitive, and for the attorneys fees necessary for the prosecution of this case, from the named defendants herein for the violation of the civil, constitutionally, and federally protected rights guaranteed to plаintiffs, by the Constitution of the United States and by the Sixth, Eighth, and Fourteenth Amendments thereto and by 42 U.S.C. 1981, 1983, 1985, and 1986, and by the Act of Congress known as the Civil Rights Act of 1866. This proceeding also seeks a declaration of the unconstitutionality of the system of appointment of defense counsel for indigent defendants in the Criminal District Court for the Parish of Orleans and the Municipal Court for the City of New Orleans. This proceeding is also to recover monetary damages from certain of the named defendants herein under Louisiana law for professional malpractice and for negligent injury and damage, as well as for agency, employer, and respondent superior responsibility therefore. Plaintiffs also seeks an injunction against further proceedings against plaintiffs.”
The Court believes that the references to 28 U.S.C. §§ 2251 and 2254 and the request for release were included incorrectly in their complaint. Well known procedures are available to those who seek a writ of habeas corpus. Suсh procedures have not been followed in this case.
The plaintiffs request the Court to prohibit Judge Shea, the district attorney and the attorney general from initiating further prosecutions of the plaintiffs. 28 U.S.C. § 2283 precludes the issuance of injunctions against state criminal proceedings which are in progress. Dombrowski v. Pfister,
At this point, all federal civil rights claims have been eliminated. Only the plaintiffs’ state cause of action for legal malpractice remains. It is well settled that when federal claims are dismissed before trial, the Court should not exercise pendent jurisdiction over a state claim. United Mine Workers of
*112
America v. Gibbs,
Accordingly, the Application for Appointment of Counsel submitted by the plaintiffs, Larry Joe Purkey and James Edward Cripps is denied. Further,
It is hereby ordered that this case be dismissed.
Notes
. LSA-R.S. following 37 :218.