*1 para- all considered However, have we specification, have
graphs the so-called found and have entire record examined the no reversible error.
Judgment affirmed. et al v. JOHNSTON
WHITTINGTON No. Appeals Court of United States Fifth Circuit. 29, 1953. Jan. April 13,1953. Rehearing Denied Knabe, Ala., Montgomery, Walter W. J. Martin,' Davis, Ozark, Ala.,
R. Hartwell Ala., Montgomery, for appellant. Ala., Williams, Orme, Troy, M. E. C. J. Rushton, Ala., Stakely Jr., Montgomery, Ala., counsel, Johnston, Montgomery, & appellee. for RIVES, STRUM, BORAH, Before and Judges. Circuit STRUM, Judge. Circuit aсtion, upon 8 This based U.S.C.A. §§ 47(3), brought al- redress the civil leged damages resulting to recover from an conspiracy The to that end. ac- judge the district tion was dismissed jurisdiction. federal lack of complaint charges in effect that the below, all of whom are
citizens, 15, 432, acting under Title Code of Ala- §§ conspired to, did, bama, 1940, cause declared insane Ala- probate court when she was in bama fact *2 statute, because sane, for that be confined it is contendеd and caused her to but pro- mandatory commit- the statute no days county jail awaiting five in a contains sanity institution, vision whose hearing person all without for ment a mental the to is is- questioned is commitment heard. Plaintiff as- before a an to be sued, afforded deprived liberty hearing was of her because no serts she was thus instance, law, plaintiff contrary the the defendants process to the without due of pro- by setting invoking al- There is no statute Fourteenth Amendment. plaintiff are, motion, cedure in “caused” the to legation the defendants any that of subjected by they as, be to or that acted officers the State of right process by to due Alabama. Amendment, Fourteenth within the conspiracy The counts are three § upon 47(3). based That sec U.S.C.A. § Tarwater, In Moses v. 257 Ala. material, tion, not at so far as here does Alabama, Supreme So.2d Court of tempt deprive conspiracy one to reach a to judge dissenting, against onе sustained depriva object is a of civil unless its by corpus, collateral attack habeas “equal protection equality, tion of —of person allegedly commitment insane laws,” “equal privileges im or institution, precisely to and under same Hardy munities under v. the laws”. Collins statutes, the same here involved. The man, 95 L.Ed. judge, state circuit before whom the habeas purport 1253. It does not a cause to create corpus proceeding originated, sustained the deny proc conspiracies of action for to constitutionality of statutes. The Ala- conspiracy ess. Yet the burden Supreme bama found Court it unneces- is, counts defendants con pass upon to sary question proc- of due plaintiff spired equality deny to under the ess order to sustain the commitment. We law, conspired deprive to determining question. refrain from also plaintiff process. of her without due sequitur a non say merely to propositions quite The are distinct. two by instituting lunacy proceeding, They equivalents. are not Mitchell v. plaintiff deprived to be 184; “caused” Greenough, Cir,, McShane right of her to due Moldovan, Cir., the mean- v. Allen ing of 8 U.S.C.A. Corsano, any there was D.C., F.Supp. No process, denial of due the efficient pleaded cause plaintiff facts are which show that thereof was the pro- omission of the subjected any inequality state has been to judge give proceed- bate notice of the charge trеatment. There is no said ing. That failure is not attributable these proceedings any has she been defendants. Whether notice greater should any different hazard than other given be person committed the Alabama against whom the Alabama statutes probate statute to the invoked, discretion might deprived that she was nor judge. These defendants had immunity duty no right might which They simply that behalf. instituted the enjoyed by any other under the law. lunacy proceeding as the Alabama conspiracy statute It is clear counts state that the of,action do, them authorized and left the no cause conduct U.S.C.A. § wholly thereof supra. discretion of (3). Hardyman, Collins v. judge probate duty whose and function it theory The of the substantive counts bas- give any necessary towas notice. upon ed is that U.S.C.A. the defend- acting request Johnston, ant Dr. In invoking the Alabama defendants, signed other four a medical defendants were entitled to act insane, certificate that was presumption based valid, the statute is upon which she was declared to be insane it has not been authoritatively declared otherwise, probate the state court without a hear- and that in administering it the pursuant ing probate judge proceed incarcerated would in accordance It is requirements statute. conceded that the with essential law. lunacy proceeding the terms mere lunacy proceed- institution of followed based,
ing, more, is too remote proper which reason it was support chain of causation to action dismiss it. plain- “causing” under 8 U.S.C.A. 43 for Affirmed. proc-
tiff
right
to due
*3
ess.
RIVES, -Circuit Judge (dissenting).
(cid:127)
correct,
contentions are
then
agree
I
conspiracy,
that a mere
fall
one who invokes the
of a state within
ban
47(3),
of 8 U.S.C.A.
must
lunacy proceeding
court
at his
purpose
be “for the
of depriving,
di-
either
U.S.C.A.,
peril,
8
and becomes liable under
rectly
indirectly,
or
any person or class of
43 in
out
the stat-
event it turns
persons
equal protection
laws,
of the
acts,
pro-
ute under
the court
or the
which
equal
privileges
or
and immunities under
cedure
ad-
followed
the state officers in
laws”,
purpose speci-
or for some other
it,
satisfy
require-
ministering
do not
section,
fied in that
and which does not in-
process.
ments of due
To hold the defend-
purpose
clude
denying
ants liable in such
im-
circumstances would
process of law.
Hardyman,
Collins v.
341
.
pose upon
liability
them a vicarious
651, 660,
937,
U.S.
71 S.Ct.
We leave
ly
wrongfully subjected
undetermined the
and caused to
whether
Plaintiff,
should have been be
a citizen of the
dismissed
jurisdic-'
“fоr
lack of federal
allegations
tion.” Even if the
of the com-
privileges,
plaint bring
jurisdiction,
it within federal
immunities secured to her
the Constitu-
Compare
Hood,
678,
Bell
States,
v.
327
66
S.
tion
the United
1
Section
Ct.
90 L.Ed.
13 A.L.R.2d
the Fourteenth
Amendment”. The
complaint clearly fails to state a
recovery
claim for
seeks
the Fourteenth
scope
relief within the
of 8 U.S.C.A.
Amendment and under
Rights
Civil
§§
47(3),
Acts,
43 and
which it'is expressly
47(3),
very
8 U.S.C.A.
43 and
§§
principles
Compare
Todd, Cir.,
also the
decided in
and McGuire v.
5
198 F.2d
Lindsley,
Cir.,
against city
10
v.
170
Bottone
F.2d
the latter
officers. See also
Moll, Cir.,
705;
765;
note,
390, 471,
177 F.2d
Givens v.
A.L.R.2d
and Adams
Co.,
Cir.,
Terry,
Cir.,
600, 605,
v. Commerce Trust
Moffett
v.
F.2d
sec
Grogoire
242, 247;
Biddle,
Taylor
column;
Cir.,
Smith,
187 F.2d
v.
ond
v.
Cir.,
Campo
581;
1;
177 F.2d-
v.
F.2d
2
Neimeyer,
A.L.R.2d
note 14 A.L.R.
Cir.,
115, 118,
et.spq.
2d text
pretense of law
means
“Color” of law
me,
case with-
brings the
clearly, it seems
“appear-
right”,
legal
semblance of
court. “mere
federal
jurisdiction of
reality”.
distinguished
Screws
from
ance as
66 S.Ct.
Hood, 327 U.S.
Bell v.
65 S.Ct.
325 U.S.
Greenough,
939;
v. United
Mitchell
90 L.Ed.
Classic,
1495; United States v.
89 L.Ed.
Cir.,
1031, 1043,
S.Ct.
said,
claim
however,
It is
1368;
States, 5
v. United
Williams
stаtutes
federal
under the Constitution
Id., 341 U.S.
179 F.2d
justify
merit as to
patently without
is so
de-
Classic case the
stitute “or causes to be proceedings. the. subjected” by physician friends, supplied only relatives and and the omitted and general any persons authority principal interested had institute definition of a crime, prosecute proceedings. Up present the commitment U.S.C.A. 2.4 time, they however, authority suggested exercised vested it has not been any purpose depriving change them law with a the crim proc- düe inal of her statute was intended the revision. then, ensued, ess of law and that' result Qui per per alium se with the facit facit under the are U.S.C.A. § aptly added element of willfullness thus party injured. liable applicable describes the rule made to -civil however, Irrespective, any rights offenses, direct of- well as to other federal1 crimes, ficial connection of Ordinarily, proceedings, with the commitment it seems required constitute a than crime more me, example, under 8 that is not es- wrong; U.S.C.A. amount to a civil- “Every “willfully”. sential. That Act makes liable in civil offenses the added *5 person who, any 100, 1031, under color of statute See 325 U.S. at S.Ct. 89 L. ** * * * *, subjects, may any of State Ed. If one 1495. -commit the criminal' another, subjected, any the through or causes citizen of offense it hard me is * **, depriva- may why to see he not commit the civil any rights, privileges, wrong, tion of immunities in especially or view of the alternative provision, subjected”. the “or causes be Constitution laws”. (Emphasis supplied.) If the defendants defendants, said, however, It is that the deprive plain- caused the state officers to merely lunacy proceeding instituted the of to her liberty tiff her without notice officers, left -conduct to the state that giving and without her an of the defendants were entitled to act herself, they being defending heard or presumption the state that officers would would be liable under 8 U.S.C.A. 43. § proceed in accordance with the essential- requirements of law. agree
Some must be ascribed to the I -could that -complaint phrase subjected”. I that all that charges, “or causes to As is I agree that, with the position majority, would conclusion it is “The understand lunacy proсeedings mere institution only an officer can to be sub “cause more, is jected”, without too remote in the chain the ‘‘color of office” must support wrongdoer -causation to an action under clothe the initial causative 8 U. plaintiff distinguished.from ‘causing’ the one whom he causes S.C.A. 43 for to be- § deprived process.” right of the to due With might to act. It claimed the order b.e deference, allegations I submit that the statutory language tends toward more; -chargе -charge a. position.2 counterpart of the criminal The. participation willful, and active statute, the de- formerly now Ú.S.C.A. § merely instituting pro- expression. fendants not in order of followed .same causing 774, ceedings in be- See 341 95.L.Ed. S.Ct. U.S. liberty process- without and Footnote S.Ct. due example, For changed 1495.3 That order is of law. some of the aver- L.Ed. in persons “Every causing pro- 2. person who, any or under 4. “Reference color unnecessary ordinance, curing regulаtion, custom, was omitted as in or ‘principal’ usage, Territory, of definition of in view section sub- * * Reviser’s of this title.” note to Sec. jects, or causes to be Title U.S.C.A. 43. § 8 U.S.C.A. 2(b) “Whoever will- Section reads: “Whoever, any law, under color of stat- fully an causes act to be done which if' ordinance, ute, regulation, custom, directly performed by him or another be-sub-, willfully subjects, against or causes-to would offense the United. . be. * * jected principal.” punishable is as a. margin.5 basing in its order of dismissal on a lack quoted 3 are merits of Count jurisdiction. it of federal the averments of Under is connection me the causal seems to While the directly decided cases are not wrongful acts between not too remote point, they support it to me seems de defendants and proposition that U.S.C.A. 43 covers process liberty due privation of her one not a state officer hut done un- willfully caused The defendants of law. der color of state law. a man used in such state statute Hardyman, In Collins v. 341 U.S. deprive plaintiff of her ner toas S.Ct. the defendants hearing and without without a simply up plaintiff’s meeting. broke “There peculiarly The state statute law. slightest allegation is not the that defend misuse, it did because susceptible such trying ants were conscious of or to-influence abso give an insane law, endeavoring or were to obstruct hearing before right to notice and lute page with it.” 341 at interfere 1940, committed, Ala. Code being page The necessary S.Ct. “color” In Moses v. Tar 45, Sections law, case, present was absent in 757, the water, So.2d 257 Ala. Further, controversy that. arose under justice Court, one Supreme 47(3), U.S.C.A. 341 U.S. at pretermitted on a decision dissenting, 937, rather than under 8 U..S.C.A. sections, and I do constitutionality of those 43, as here. necessary that such a decision think McCartney Virginia, v. State of West rise give sufficient to this case. principal 156 F.2d insistence a cause of § 43> *6 plaintiff was he right of the that had а to proximately of the defendants the acts that Virginia. West sue the State of He made depriving the caused state incidental of n ofher some lack of due notice to her and without liberty apparent process, but showed no reason opportunity being her an of giving without charge process. of lack of due for a defending 'herself. heard or States, ground Cir., of moment to the In Williams v. United Reverting for a 656, 97, dismissal, fact affirmed S.Ct. 576, 774, interpretations private in- differing L.Ed. а detective subject to the who special police of the a officer’s card emphasizes by the error court held issued dicated laws, Defendants, pital, her, under color of all without notice to and with- “The 5. usages customs, giving statutes, being of the State her the of out 1940, defending Alabama, thereby Alabama of Ti- of hoard herself and of Code 432, 45, 15, and Title Sec- caused her to be arrested and in Section confined tle January jail 210, on, to-wit, 5, County County, 208, 209, Alabama, оf Pike tions awaiting 1951, Division Northern of the while incarceration in in the said willfully, Bryce Alabama, Hospital, January of Insane from District Middle knowingly, wantonly, unlawfully, inclusive, period days 9, 1951, mali- a to of five subjected wrongfully doing, subject ciously, time, and in so and did Plaintiff, subjected a cit- caused cause to be the Plaintiff States and of the United deprivation izen of the her without of n Alabama to the of of of law and violation of her privileges, rights, immunities secured privileges, and immunities by the United the Oonstitutiоn of to by the Fourteenth to her Amendment of (Section Fourteenth States States, Constitution United Amendment); say is to to-wit * * right or cause all n during all of the time herein referred to required support but, on, a was sane to-wit is not Plaintiff Willfullness .January Troy, Alabama, at action under 8 U.S.C.A. civil averred, here, may have Defendants, of Ala- as it under color of when Code bearing upon bama, Section and Title causal Title “The in- connection. tort, course, liability creates did cause tеntional Sections consequences insane, be declared and to which were Plaintiff intended.” .be Bryce Am.Jur., Negligence, committed to Insane Hos- See. (cid:127)ordered Florida, Miami, D.C., City and had taken In United Lynch, States v. 94 F. qualified special police 1011, 1013, Supp. oáth and aas this Court on by affirmed officer, badge appeal and ac- an showing by when his deputy sheriff and sheriff companied Lynch by regular policeman Cir., was held in v. United 189 F. 2d acting of law Judge Hooper “under cоlor” District said in the opinion, or at course of a well -18 U.S.C.A. considered 94 F. Supp. properly page at 1013: jury least that the could so find. Significantly Supreme Court said: by "Violation Civil Rights Statute “Moreover, investigation this was an con- Private Individuals. It was insisted State, aegis ducted under the as evi- by movants the six named defend- police regular denced the fact that a of- ants who were not officers of the State ficer detailed to attend it.” at was could violate this civil statute pages S.Ct. only deprivations because it related Likewise, Court, in course True, by a state. Section was opinion, said: pursuant enacted to the Fourteenth present policeman, deprivations
“In
Amendment and
case
relates to
uniform,
Ford,
although
through
officials)
states (acting
state
present
capacity
po-
private
as
and not to
official
individuals.
Miami,
follow, however,
liceman of the City
acting
pri-
It does not
authority
City,
under the
guilty'
vate individuals
cannot
giving,
holding in
principals
under our
if
Crews v.
aid and
state of-
abet
S.,
746], supra,
U.
ficers in such
violations. Section
[5
* *
investigation.
color
United
official
States Code annotated.
was sent
“Thus,
“Ford
scene
case of
police
superior
Trierweiler, D.C.,
City
F.Supp. 4,
officer
Williams,
appellant,
pointed
Miami.
who
court
out that it is immaterial
personally
most
committed
of the as-
that a
citizen may not have the
did
of the beating,
capacity
offense,
saults and
most
did
to commit the
if he
presence
so in
of this duly
consti-
aids an officer to do
other civil
so.
*7
lawful, officer,
least,
tuted,
who
rights
cases under Section 242
of law
joined
lent color
to the occasion.”
have
individuals
been
as defend-
States,
660.
ants. Williams v. United
Cir.r
644;
179 F.2d
Williams v. United
Hialeah,
,Cir.,
City
Charlton v.
States, Cir.,
With present case constitutes decision provid- protection abridgment of the serious to the constitutional Congress ed of citizens immunities privileges and respectfully I, therefore United dissent. RIVES, Judge, denied; Circuit
Rehearing dissenting. Flowers, Warren, Jr., M. Herbert A. PARK v. GULFSTREAM J.
YGLESIAS ASS’N, Inc. Carr, Miami, Fla., appel- Jr., for Hilton R. RACING lant. Nо. Ward, Ward, Miami,. W. G. Ward & Appeals Court Fla., appellee. Fifth Circuit 29, 1953. HUTCHESON,
Jan. Judge, Before Chief RIVES, Judges.
and STRUM and Circuit STRUM, Judge. Circuit Appellant, below, damages seeks for the the Four-
immunities teenth Amendment United States complaint expressly al- Constitution. The leges that the is based 8 U.S. Federal is claimed C.A. 43. 1343. The district U.S.C.A. § City upon authority judge, of Charlton v. Hialeah, S 188 F.2d dismissed *8 jurisdiction “for lack over the the cause matter,” apparently subject because the complaint did not state a cause 43>, and no other ground of federal is asserted. complaint, Paragraphs and 6 of the are in the nature of substantive which defendant,, counts, charge in effect that Association, Racing Park Gulfstream employees, corporation, agents acting Florida, color of the laws of did subject plaintiff, or cause subjected, to secur- by the Constitution of the United States ed falsely imprisoned by causing her to be period of time without an unreasonable bond, opportunity to without an confer counsel, put and caused her to be