author: TOM S. LEE, District Judge.

text:
    Muhammad KENYATTA, Plaintiff, v. Roy K. MOORE, et al., Defendants.
    Civ. A. No. J77-0298(L).
    United States District Court, S.D. Mississippi, Jackson Division.
    Sept. 27, 1985.

      Shirley Payne, Patrick D. O’Rourke, American Civil Liberties Union of Miss., Jackson, Miss., Jack D. Novik (Pro Hac Vice), American Civil Liberties Union Foundation, New York City, Dennis L. Horn, Horn & Payne, Kenneth J. Rose, Jackson, Miss., David Rudovsky (Pro Hac Vice), Defender Assn, of Philadelphia, Philadelphia, Pa., for plaintiff.
    Daniel E. Lynn, Asst. U.S. Atty., Jackson, Miss., Gordon W. Daiger (Pro Hac Vice), Atty., Torts Branch, Civ. Div. Dept, of Justice, Washington, D.C., Mary P. Mitchell and Peter R. Wubbenhorst (Pro Hac Vice), for defendants.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on renewed motion by defendants Roy K. Moore, James 0. Ingram and Thomas Fitzpatrick for summary judgment on plaintiff Muhammed Kenyatta’s state law claims. Plaintiff filed timely response to the motion, and the court has considered the memoranda with attachments submitted by both parties.

The facts of this case have been adequately recounted in two previous opinions by the court on defendants’ motions for summary judgment and in a published opinion from the Fifth Circuit, Kenyatta v. Moore, 744 F.2d 1179 (5th Cir.1984). In this the eighth year of the protracted life of this litigation, little purpose would be served by reiterating these facts in detail; thus the court will only briefly summarize the facts in light of the defendants’ instant motion.

Kenyatta was engaged in civil rights activities in the late 1960’s during and shortly after his tenure as a student at Tougaloo College, a predominately black college on the outskirts of Jackson, Mississippi. Defendants Moore, Ingram and Fitzpatrick were employed as special agents of the Federal Bureau of Investigation (F.B.I.) and were assigned to the Jackson, Mississippi Field Office during the relevant time period. Pursuant to a series of F.B.I. interdepartmental memoranda, the defendants engaged in a counterintelligence program aimed at gaining information about black nationalist groups and leaders for purposes of exposing and discrediting them. Kenyatta became a target of F.B.I. investigation in the latter part of 1967 when one or more of the defendants caused his name to be placed on the F.B.I. “Rabble Rouser List,” later called the F.B.I. “Agitator Index.” In April 1969, the agents caused a letter to be sent to Kenyatta which falsely purported to be from the Tougaloo College Defense Committee, a student organization with which Kenyatta was involved. The letter criticized Kenyatta’s “conduct and general demeanor” and advised him to stay away from campus or “other measures” would be taken, including reporting his activities to local authorities. Kenyatta left Mississippi shortly after receiving this letter because, he asserts, he relied on its authenticity and believed himself discredited in the eyes of the student body. In August 1969, the defendants gave certain F.B.I. intelligence information on Kenyatta to an attorney inquiring on behalf of the Episcopal Church as to the propriety of continuing church funding of the Jackson Human Rights Project. Kenyatta had participated in the project and he asserts that the subsequent cessation of project funding by the church was directly caused by the dissemination of this information by the defendants. Kenyatta lastly asserts that throughout his tenure at Tougaloo the defendants “circulated false and derogatory rumors and allegations” about him to local authorities, Tougaloo faculty and students, defaming his character.

Kenyatta’s amended complaint alleges that defendants’ actions violated his rights protected under the First, Fourth, Fifth and Ninth Amendments to the Constitution of the United States and 42 U.S.C. § 1985(3), which grants a civil cause of action for conspiracy to deprive a person of equal protection of the laws. Also charged are pendent state law claims based upon Mississippi common law of defamation and invasion of privacy and deprivation of rights secured by Sections 11 and 13 of Article 3 of the Constitution of the State of Mississippi. Defendants’ instant motion seeks summary judgment on the pendent state law claims on the ground that federal officials acting within the scope of their authority are absolutely immune from common law tort liability.

Plaintiff initially asserts that defendants should be barred from raising this issue before this court for the third time. Defendants’ first motion for summary judgment on absolute immunity grounds was denied in Magistrate Countiss’ order dated December 21, 1979. No appeal was taken from that order. Defendants renewed the motion in 1983 and reasserted inter alia the same state law absolute immunity defense that had been previously rejected. Judge Russell’s opinion dated September 22, 1983 again denied summary judgment without discussing the absolute immunity defense, presumably because the court had ruled on that ground previously and defendants had cited no new case authority which demanded reconsideration and reversal of the court’s prior ruling. On appeal, the Fifth Circuit held that defendants were time barred from appealing the 1979 denial of their absolute immunity defense by Federal Rule of Appellate Procedure 4 and that the brief mention of the defense in the 1983 renewed motion did not give them a second opportunity to appeal. Kenyatta v. Moore, 744 F.2d at 1186-87. Therefore, it appears that the only means by which defendants can seek to avoid litigation of these state law claims is by renewed motion requesting the court to reconsider its prior ruling in light of recent, clear precedent.

Federal Rule of Civil Procedure 54(b) provides that a court always retains jurisdiction to modify or rescind a prior interlocutory order until a final decree is entered. A subsequent motion for summary judgment is proper after a prior motion is dismissed, if supported by new material. Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118, 1121 (10th Cir.1979); Kirby v. P.R. Mallory & Co., Inc., 489 F.2d 904 (7th Cir.1973). Even when, as here, it is arguable that no new material supports a subsequent motion, a district court need not perpetuate error or take a more roundabout way to arrive at an ultimately necessary judgment by refusing to consider a subsequent motion after it has previously ruled the other way. Lindsey, 592 F.2d at 1121; Jones v. Wike, 654 F.2d 1129, 1130 (5th Cir.1981); Bon Air Hotel, Inc., v. Time, Inc., 426 F.2d 858, 862 (5th Cir.1970). While it is clear to this court that it has discretion, if not the obligation, to reconsider prior erroneous rulings without finding support in new material, recent Fifth Circuit decisions since the court’s 1979 order clarify the absolute immunity defense sufficient to constitute such new material and allow reconsideration of a renewed motion for summary judgment. This court concludes, therefore, that its consideration of the renewed motion for summary judgment is proper at this time.

Long before the Supreme Court recognized an implied cause of action and remedy for violation of constitutional rights by a federal employee in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), it recognized that federal employees acting within the scope of their authority enjoyed absolute immunity from common law torts. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959). In Barr, the court defined the scope of such immunity to include any acts that were within the “outer perimeter of the federal employee’s line of duty.” Id. at 575, 79 S.Ct. at 1341. The plurality in Barr recognized that an absolute immunity defense was necessary to shield federal governmental officials from the inevitability of ill-founded damage suits brought on account of actions taken in the exercise of their official responsibilities. Id. at 565, 79 S.Ct. at 1336.

The Fifth Circuit has recently shown a tendency to interpret Barr broadly in the context of Bivens-type suits. Utilizing the “outer perimeter” approach of Barr, the court has held that, for absolute immunity to apply, “it is only necessary that the action of the federal official bear some reasonable relation to and connection with his duties and responsibilities to be within the scope of his authority.” Currie v. Guthrie, 749 F.2d 185, 188 (5th Cir.1984); Claus v. Gyorkey, 674 F.2d 427, 431 (5th Cir.1982) (quoting Scherer v. Brennan, 379 F.2d 609, 611 (7th Cir.), cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 666 (1967)). The challenged action of the federal official must also be connected with a “discretionary function” for absolute immunity to apply. Williams v. Collins, 728 F.2d 721, 727 (5th Cir.1984) (quoting Norton v. McShane, 332 F.2d 855, 858 (5th Cir.1964), cert. denied, 380 U.S. 981, 85 S.Ct. 1345, 14 L.Ed.2d 274 (1965)). Given the broad discretionary power granted in the F.B.I. directives to the agents in carrying out counterintelligence operations, it is difficult for this court to envision a tactic that would fall without the “outer perimeter” of the agents’ line of duty. Clearly the actions taken by the defendant agents pursuant to the F.B.I. directives were within their line of duty. The agents’ execution of those directives cannot expose them to common law tort liability.

In Williams v. Collins, supra, Williams alleged constitutional claims of violations of due process arising out of an administrative procedure that led to his loss of federal employment. Like Kenyatta, Williams also advanced common law tort claims against the federal officials, including slander, defamation and invasion of privacy under Mississippi law. 728 F.2d at 723. Also like Kenyatta, Williams argued that, under the test of Barr, the commission of a tort would by definition exceed the scope of an official’s authority. The district court agreed. The Fifth Circuit reversed, holding that “the rule (of absolute immunity) to fulfill its purpose by necessity protects an official from trial for actions which, even though tortious, nevertheless can be said to be within the outer bounds of the official’s authority.” Id. at 727. Thus, contrary to plaintiff’s argument in his response brief based on a strained reading of Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), the fact that the acts of a federal employee were not authorized by either state or federal law does not abrogate the absolute immunity defense as to the state law claims. See Metlin v. Palastra, 729 F.2d 353 (5th Cir.1984). The relevant inquiry is the scope, looking to its outer perimeters, of the federal employee’s authority. While this court recognizes that certain tortious conduct can clearly exceed the scope of the employee’s duty sufficient to overcome an absolute immunity defense, Araujo v. Welch, 742 F.2d 802 (3rd Cir.1984) (battery), such conduct is not present here. This is especially true in light of Kenyatta’s allegations of defamation and invasion of privacy, two areas in which the F.B.I. directives authorized the agents to operate in furtherance of the Bureau’s counterintelligence functions.

Kenyatta’s last argument is that his “claims under the Mississippi Constitution should be treated with the same respect accorded federal constitutional violations.” That is, since his claims of violation of rights secured by the United States Constitution are sufficient to overcome the agents’ absolute immunity defense under federal law, his claims of violation of rights secured by the Mississippi Constitution should be sufficient to overcome the agents’ absolute immunity defense to the pendent state claims under Mississippi law. This argument cannot succeed. No private cause of action and damage remedy has ever been implied from the Mississippi Constitution. Moreover, the rationale underlying the rule of absolute immunity applies with equal force to both state common law and constitutional claims. The court concludes that the addition of a claim of violation of rights protected under the state constitution—for which there is no damage remedy—does not provide an independent basis for skirting the absolute immunity defense.

Summary judgment is appropriate in this case for a number of reasons. The availability of the absolute immunity defense is a legal question not appropriate for submission to a jury. Elliot v. Perez, 751 F.2d 1472, 1478 (5th Cir.1985). Absolute immunity does not hinge on a functional analysis as with constitutional torts. Barr, 360 U.S. at 431, 79 S.Ct. at Williams, 728 F.2d at 727. The proper analysis does not involve delicate fact questions of intent and motive; rather, it focuses on the scope of a defendant’s authority proveable through documentary evidence. Lastly, summary judgment is appropriate because absolute immunity, if warranted, protects a defendant from trial as well as liability. Williams, 728 F.2d at 573.

For the reasons stated above, it is Ordered that defendants’ renewed motion for summary judgment on plaintiff’s state lqw claims is granted.

      . The record contains two lengthy discussions of the pertinent facts: one in an order issued by Magistrate John R. Countiss, III on November 20, 1979 denying summary judgment; the other in an opinion issued by Judge Dan M. Russell, Jr. on September 22, 1983 denying summary judgment.

      . By memorandum from F.B.I. Director J. Edgar Hoover dated August 25, 1967, the agency established a far-reaching counterintelligence program called "COINTELPRO-Black Nationalist Hate Groups” the stated purpose of which was "to expose, disrupt, misdirect, discredit, or otherwise neutralize the activities of black nationalist, hate-type organizations and groupings, their leadership, spokesmen, membership and supporters, and to counter their propensity for violence and civil disorder.” (F.B.I. memorandum dated August 25, 1967).

      . Article 3, Section 11 of the Mississippi Constitution provides, "The right of the people peaceably to assemble and petition the government on any subject shall never be impaired.” Article 3, Section 13 of the Mississippi Constitution provides, "The freedom of speech and of the press shall be held sacred; and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court, and if it shall appear to the jury that the matter charged as libelous is true, and was published for good motives and for justifiable ends, the party shall be acquitted.”

      . The court based its 1979 denial of summary judgment on a finding that "[w]hile the broad underlying facts as recited above are uncontested, many facts more subtle (especially in the area of intent and motive), but critical to a just determination of this case, are contested and genuinely in issue.”

      . The court does not here address the constitutionality of those tactics for purposes of plaintiffs claim of deprivation of federal constitutional rights under color of federal law.


source: Caselaw Access Project

license: Public Domain

text:
    Muhammad KENYATTA, Plaintiff, v. Roy K. MOORE, et al, Defendants.
    Civ. A. No. J77-0298(L).
    United States District Court, S.D. Mississippi Jackson Division.
    Nov. 20, 1985.

      Shirley Payne, Patrick D. O’Rourke, American Civil Liberties Union of Miss., Jackson, Miss., Jack D. Novik (Pro Hac Vice), American Civil Liberties Union Foundation, New York City, Dennis L. Horn, Horn & Payne, Kenneth J. Rose, Jackson, Miss., David Rudovsky (Pro Hac Vice), Defender Assn, of Philadelphia, Philadelphia, Pa., for plaintiff.
    Daniel E. Lynn, Asst. U.S. Atty., Jackson, Miss., Gordon W. • Daiger (Pro Hac Vice), Atty., Torts Branch, Civ. Div., Dept, of Justice, Washington, D.C., Mary P. Mitchell and Peter R. Wubbenhorst (Pro Hac Vice), for defendants.
   MEMORANDUM OPINION AND ORDER

TOM S. LEE, District Judge.

This cause is before the court on motion by defendants Roy K. Moore, James 0. Ingrain and Thomas Fitzpatrick for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff Muhammad Kenyatta filed timely response and the court has considered the memoranda with authorities submitted by the parties. The issue before the court is whether agents of the Federal. Bureau of Investigation (F.B.I.), acting pursuant to Bureau directives, can be held individually liable for conspiracy to deprive a person of equal protection of the laws under 42 U.S.C. § 1985(3).

The facts of this case are only briefly summarized. Kenyatta was engaged in civil rights activities in the late 1960’s during and shortly after his tenure as a student at Tougaloo College, a predominantly black college on the outskirts of Jackson, Mississippi. Defendants Moore, Ingram and Fitzpatrick were employed as special agents of the F.B.I. and were assigned to the Jackson, Mississippi Field Office during the relevant time period. Pursuant to a series of F.B.I. interdepartmental memoranda, the defendants engaged in a counterintelligence program aimed at gaining information about black nationalist groups and leaders for purposes of exposing and discrediting them. Kenyatta became a target of F.B.I. investigation in the latter part of 1967 when one or more of the defendants caused his name to be placed on the F.B.I. “Rabble Rouser List,” later called the F.B.I. “Agitator Index.” In April 1969, the agents caused a letter to be sent to Kenyatta which falsely purported to be from the Tougaloo College Defense Committee, a student organization with which Kenyatta was involved. The letter criticized Kenyatta’s “conduct and general demeanor” and advised him to stay away from campus or “other measures” would be taken, including reporting his activities to local authorities. Kenyatta left Mississippi shortly after receiving this letter, he asserts, because he relied on its authenticity and believed himself discredited in the eyes of the student body. In August 1969, the defendants gave certain F.B.I. intelligence information on Kenyatta to an attorney inquiring on behalf of the Episcopal Church as to the propriety of continuing church funding of the Jackson Human Rights Project. Kenyatta had participated in the project and he asserts that the subsequent cessation of project funding by the church was directly caused by the dissemination of this information by the defendants. Kenyatta lastly charges that throughout his tenure at Tougaloo the defendants “circulated false and derogatory rumors and allegations” about him to local authorities, Tougaloo faculty and students, defaming his character. Kenyatta’s pendent state claims, including the defamation action under Mississippi law, were dismissed from this case by this court's memorandum opinion and order dated September 27, 1985.

Kenyatta’s amended complaint alleges that defendants’ actions violated his rights protected under the First, Fourth, Fifth and Ninth Amendments to the Constitution of the United States. Under the authority of Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and its progeny, Kenyatta asserts that he is entitled to an implied cause of action for deprivation of constitutional rights and a private damages remedy against the defendants in their individual capacities. Kenyatta also charges that the defendants, acting with racially discriminatory animus, engaged in a conspiracy to deprive him of equal protection of the laws in violation of 42 U.S.C. § 1985(3).

Defendants’ instant motion seeks partial judgment on the pleadings on the ground that persons acting under color of federal law are not within the reach of § 1985(3). In a well-stated brief, defendants submit a three-fold argument for precluding the availability of a § 1985(3) cause of action in this case: (1) the legislative intent behind the passage of the Civil Rights Act of 1871, § 2 of which is the parent of § 1985(3), was to curb Ku Klux Klan activities in the Reconstruction South and indeed to protect federal officials, and thus conspiracies by federal officials are not covered by the Act; (2) the concept of equal protection of the laws and equal privileges and immunities under the laws in § 1985(3) necessarily contemplates some involvement by a state or by one acting under color of its authority before a violation can be established; (3) decisional law in the Fifth Circuit indicates that a § 1985(3) cause of action is subject to the same state-action requirement that exists in an action under 42 U.S.C. § 1983, and therefore federal officials acting under color of federal law cannot be held liable under § 1985(3). For the reasons stated hereinafter, this court declines to give identical construction to the legislative intent behind § 1983 and § 1985(3), and concludes that federal officials can be held individually liable for engaging in a private conspiracy to deprive a person of equal protection of the laws.

LEGISLATIVE HISTORY

[1] Defendants correctly contend that the “central concern” of the 42d Congress in passing the Civil Rights Act of 1871 was to combat the “violent and other efforts of the Klan and its allies to resist and to frustrate the intended affects [sic] of the Thirteenth, Fourteenth and Fifteenth Amendments ...” Carpenters v. Scott, 463 U.S. 825, 837, 103 S.Ct. 3352, 3360, 77 L.Ed.2d 1049 (1983). A principal purpose underlying the legislation was to provide, through a private damages remedy, some protection for blacks, union sympathizers and federal officials at work in the Reconstruction South. Carpenters v. Scott, 463 U.S. at 837, 103 S.Ct. at 3360; Griffin v. Breckenridge, 403 U.S. 88, 100-03, 91 S.Ct. 1790, 1797-98, 29 L.Ed.2d 338 (1971); McCord v. Bailey, 636 F.2d 606, 615-16 (D.C.Cir.1980), cert. denied, 451 U.S. 983, 101 S.Ct. 2314, 68 L.Ed.2d 839 (1981). Defendants argue that it would have been “anomalous” for the 42d Congress to have included within the same legislation having the purpose of protecting federal institutions a section imposing liability on those charged with carrying out that difficult purpose and for whose protection the legislation was passed.

In Griffin v. Breckenridge, 403 U.S. at 101, 91 S.Ct. at 1797, the Supreme Court held that the cause and relief afforded in § 1985(3) applies to wholly private conspiracies. Looking to the clear language and the legislative history of § 1985(3), the Court held that the state-action prerequisite of § 1983 was not intended to be a necessary element in an action under § 1985(3) and that, therefore, any two or more private individuals who conspired with racially discriminatory animus to deprive another of equal protection of the laws could be sued under § 1985(3) regardless of the nature of their employment. 403 U.S. at 99, 91 S.Ct. at 1796. In light of Griffin, it would be truly “anomalous” to disregard any state-action component in a suit against private individuals under § 1985(3), yet grant federal employees an absolute immunity simply because of their employment status. A federal employee who uses his office to commit a federal constitutional violation should not be allowed to claim that office as grounds for an absolute immunity defense. See Bivens, 403 U.S. 388, 91 S.Ct. at 1999; Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In conspiring to commit such constitutional violation with racially discriminatory animus, such federal official is a “person” within the meaning of § 1985(3). See Hobson v. Wilson, 737 F.2d 1, 20 (D.C.Cir.1984); Waller v. Butkovich, 584 F.Supp. 909, 939 (M.D.N.C.1984).

Given the broad language of § 1985(3) and the construction of that language in Griffin to cover private conspiracies, this court rejects defendants’ contention that federal officials are not “persons” within the meaning of the statute simply because their safety was of some concern to the 42d Congress. Indeed, the major concern of the 42d Congress in promulgating what is now § 1985(3)—to provide “a statutory cause of action for negro citizens who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men.” Griffin, 403 U.S. at 105, 91 S.Ct. at 1800— would be thwarted by such a holding. Therefore, the court concludes that there is nothing in the legislative history of § 1985(3) that would exclude conspiratorial private action by federal employees from its coverage.

EQUAL PROTECTION OF THE LAWS

By its specific terms, § 1985(3) proscribes any conspiracy which has “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 ...” Defendants argue that the “essence” of the Equal Protection Clause of the Fourteenth Amendment is a guarantee that citizens of one state will not discriminate against or engage in any disparate treatment of citizens of another state. Thus, defendants reason, the requirement that a conspiracy proscribed by § 1985(3) have as its purpose depriving any person of equal protection of the laws necessarily involves state action in some recognizable form, citing United States v. Guest, 383 U.S. 745, 755, 86 S.Ct. 1170, 1176, 16 L.Ed.2d 239 (1966); Monroe v. Pape, 365 U.S. 167, 174-77, 81 S.Ct. 473, 477-78, 5 L.Ed.2d 492 (1961). “Analytically and historically,” defendants conclude, the doctrine of equal protection is “incapable of application to the federal or national government.” This argument fails on several grounds.

First, as was stated by the Griffin Court in addressing this same argument,

A century of Fourteenth Amendment adjudication has ... made it understandably difficult to conceive of what might constitute a deprivation of equal protection of the laws by private persons. Yet there is nothing inherent in the phrase that requires that action working the deprivation to come from the state (citations omitted). Indeed, the failure to mention any such requisite can be viewed as an important indication of congressional intent to speak in § 1985(3) of all deprivation of ‘equal protection of the laws’ and ‘equal privileges and immunities under the laws,’ whatever their source.

403 U.S. at 97, 91 S.Ct. at 1796 (emphasis original).

Second, the source of the congressional power to create a cause of action for private conspiracies does not rest in the Fourteenth Amendment’s Equal Protection Clause, as does the cause of action created in § 1983 for deprivation of constitutional rights under color of state law; rather, the power to reach private conspiracies under § 1985(3) emanates from the Thirteenth Amendment. Griffin, 403 U.S. at 104-05, 91 S.Ct. at 1799. Congress has the power under the Thirteenth Amendment “to determine what are the badges and incidents of slavery, and the authority to translate that determination into effective legislation,” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440, 88 S.Ct. 2186, 2203, 20 L.Ed.2d 1189 (1968), without regard to the existence vel non of state action. Federal officials are certainly as capable as state officials of violating the mandates of the Thirteenth Amendment.

Third, since Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), the Supreme Court has recognized that the Due Process Clause of the Fifth Amendment contains an equal protection component at least broad enough to bar invidious discrimination by the federal government or its agencies. Except for the state-action requirement, the “[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.” Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228 n. 2, 43 L.Ed.2d 514 (1975). Defendants’ argument that the 42d Congress could not have foreseen in 1871 the advent of applying the equal protection analysis under the Fifth Amendment in the Bolling v. Sharpe line of cases is meritless. This court cannot assume that the 42d Congress sought to sanction invidious discrimination in any form, or only when the discriminatory action came from the federal government. Thus, the patent error of defendants’ argument that the doctrine of equal protection is, by definition, inapplicable to the federal government is clear.

FIFTH CIRCUIT PRECEDENT

Defendants rely heavily on two cases from this circuit which held, without analysis of Griffin v. Breckenridge or the legislative history of the Civil Rights Act of 1871, that the right of action for civil conspiracy under § 1985(3) does not apply when the defendants are acting under color of federal law. Because this court is of the opinion that a thorough analysis of the legislative history, the Supreme Court’s holding in Griffin and other recent cases concerning § 1985(3) would lead the Court of Appeals to extend its applicability to persons acting under color of federal law, the court does not view the brief mention of § 1985(3) coverage in these cases as binding precedent.

In Seibert v. Baptist, 594 F.2d 423 (5th Cir.1979), and Mack v. Alexander, 575 F.2d 488 (5th Cir.1978), the Fifth Circuit addressed the jurisdictional bases asserted by plaintiffs, two aggrieved taxpayers, in actions against the Internal Revenue Service and various IRS officials for, inter alia, deprivation of constitutional rights. Both plaintiffs alleged causes of action under § 1983 and § 1985 and asserted that federal jurisdiction was conferred by 28 U.S.C. § 1343, the jurisdictional basis for suits under § 1983 and § 1985. In both cases, the Fifth Circuit upheld the district court’s dismissal of the actions. The relevant language was stated in Mack, 575 F.2d at 489, and quoted in full without further comment in Seibert, 594 F.2d at 429:

Section 1343 places original jurisdiction in the district courts when there is a substantive claim for violation of 42 U.S.C. §§ 1983 and 1985. However, we agree with the district court’s ruling that these statutes provide a remedy for deprivation of rights under color of state law and do not apply when the defendants are acting under color of federal law.

Cited in support of this proposition in Mack was Walker v. Blackwell, 360 F.2d 66 (5th Cir.1966). Walker involved a pro se appeal by prisoners in a federal penal facility in which they alleged that they had been deprived by prison officials of their constitutional right to practice their religion. They brought the suit under § 1983 and 28 U.S.C. § 1361. In affirming dismissal of the § 1983 action, the Fifth Circuit only stated, “[s]ince these complaints relate to the administration of a United States penitentiary by a federal official, we agree with the district court that they could not be maintained under 42 U.S.C. § 1983.” 360 F.2d at 67. No substantive mention whatever was made concerning the § 1985 claim in Walker. Thus, it appears that the Fifth Circuit has never engaged in a thorough analysis of § 1985(3) as it relates to federal officials independent of § 1983 and its clearly established state-action requirement. The error in the defendants’ argument and analysis based on Seibert and Mack is in the forced melding of the purpose and reach of the two statutes. This court does not credit Seibert, Mack and Walker with establishing the broad, exclusionary principle of federal law under § 1985(3) as is asserted by the defendants.

The Fifth Circuit pronouncements on this issue indicate the source of the confusion in the federal courts over this issue: the compelling temptation to construe § 1983 and § 1985(3) exactly the same. While it cannot be denied that the statutes are the product of the same legislative scheme and derive their meaning from the same historical context, a rational construction of them reveals different policies and purposes underlying each.

Under Griffin, the plaintiff must allege the following elements to state a claim under § 1985(3): (1) the defendants entered into a conspiracy (2) for the purpose of depriving a person of equal protection of the laws, (3) that one or more of the conspirators acted in furtherance of the object of the conspiracy such that (4) the plaintiff was injured in his person or property or deprived of a right or privilege of a citizen of the United States. 403 U.S. at 102-03, 91 S.Ct. at 1798. Conspicuously absent from the Griffin elements, derived directly from the statute, is any requirement of state action. The last element under Griffin, as recently refined by the Supreme Court in Carpenters v. Scott, 463 U.S. at 835, 103 S.Ct. at 3359, is a construction of the language in § 1985(3) requiring intent to deprive one of equal protection of the laws, which “means that there must be some racial, or perhaps otherwise class-based, individiously discriminatory animus behind the conspirators’ action.” Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. Kenyatta has sufficiently alleged the elements of a § 1985(3) cause of action in his amended complaint to meet the test under Griffin.-

The critical element of a '§ 1983 cause of action is that the one working the deprivation of constitutional rights must have done so under color of state authority. By its clear language, § 1983 seeks to remedy only discriminatory state action and not private action in any of its myriad forms. The logical inconsistency of construing the elements, and thereby the protections, of § 1983 and § 1985(3) the same was explained in Griffin, 403 U.S. at 99, 91 S.Ct. at 1796.

An element of the cause of action established by the first section [of the Civil Rights Act of 1871], now 42 U.S.C. § 1983, is that the deprivation complained of must have been inflicted under color of state law. To read any such requirement into § 1985(3) would thus deprive that section of all independent effect ... Given the existence of these three provisions [of the original 1871 Act, now § 1983 and § 1985(3)], it is almost impossible to believe that Congress intended, in the dissimilar language of the portion of § 1985(3) now before us, simply to duplicate the coverage of one or more of them.

Thus, the protection offered in § 1985(3) against conspiracies to deprive citizens of equal protection of the laws is not, in light of § 1983, a mere redundancy. Section 1985(3) has entirely different sources, purposes and effects than § 1983. Deriving its constitutional authority from the Thirteenth Amendment, it is not limited in its purpose to curtailing unconstitutional state action, and its effect is to provide a damages remedy against all private conspirators operating with discriminatory animus regardless of their employment.

RECENT PRECEDENT

Defendants cite a number of decisions to the court, besides the Fifth Circuit decisions in Seibert and Mack, to support their conclusion that § 1985(3) is inapplicable to federal officials. Most of these cases are based on the assumption that state action is a necessary element in any cause of action based upon the present form of the Civil Rights Act of 1871, an assumption expressly rejected in Griffin. See e.g. Bethea v. Reid, 445 F.2d 1163, 1164 (3rd Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972). Others rely on a strained overextension of District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), in which the Supreme Court stated the unremarkable conclusion that the Fourteenth Amendment underpinnings of § 1983 require some state action to establish a violation, and therefore federal officials acting solely under color of federal law cannot be sued under § 1983. See e.g. Ryan v. Cleland, 531 F.Supp. 724, 733 (E.D.N.Y.1982). In the rare case in which at least a cursory review of the legislative history of § 1985(3) and the significance of Griffin is undertaken, the courts misconstrue the elements of a § 1985(3) cause of action as stated in Griffin, and indeed insert state action requirements where none are found in the statute or in Griffin. See, e.g., Sykes v. State of California Dept. of Motor Vehicles, 497 F.2d 197, 200 (9th Cir.1974). If Griffin is still valid precedent, as it is under Carpenters v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), this court cannot wittingly perpetuate the error in statutory construction committed in the cases cited by the defendants.

The better reasoned view has been adopted in a number of recent cases in which § 1985(3) has been applied to private conspiracies by federal officials. Two of these cases, Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984), and Hampton v. Hanrahan, 600 F.2d 600 (7th Cir.1979), involved suits against F.B.I. agents under § 1985(3) for engaging in private conspiracies pursuant to the same F.B.I. COINTELPROBlack Nationalist program at issue in this suit. In both cases, the courts of appeals held that the respective plaintiffs had stated cognizable causes of action against the individual F.B.I. agents under § 1985(3). Hobson, 737 F.2d at 20; Hampton, 600 F.2d at 623.

Defendants seek to distinguish Hobson and Hampton on the ground that they relied on a “one-sided ‘animus’ analysis” rather than an analysis of the particular problem with which the 42d Congress was faced when it ratified § 2 of the 1871 Act, now § 1985(3). Reiterating in part their legislative history argument, defendants contend that because the opinions in Hob-son and Hampton omit the “fundamental fact” that the federal government was seen as one of the objects and not the source of the wrongs sought to be remedied by the 1871 legislation, the holdings in those cases are suspect if not flatly wrong. This attempt to resuscitate the argument that was laid to rest in Griffin cannot succeed. Defendants’ corollary argument on the state-action presumption in the equal protection language of § 1985(3) is likewise rejected for the reasons set forth previously in this opinion.

The court is therefore of the opinion that the clear weight of recent authority on this issue is to the effect that § 1985(3) applies to private conspiracies engaged in by federal officials, including those acting to further the stated objectives of the F.B.I. COINTELPRO-Black Nationalist program. The court is further of the opinion that these recent cases reflect the correct view of the legislative history of § 1985(3) and the teaching of Griffin v. Breckenridge.

In conclusion, the court holds that an individual defendant, regardless of the nature of his employment or official status, who acts with invidious, class-based discriminatory animus and conspires with one or more defendants to deprive another of clearly established constitutional rights can be held liable for money damages under § 1985(3). Kenyatta’s amended complaint sufficiently sets out the elements of a cause of action under § 1985(3) to allow this case to go forward to trial.

It is, therefore, ordered that defendants’ motion for partial judgment on the pleadings is denied.

      . The record in this cause contains three lengthy discussions of the pertinent facts: two opinions denying summary judgment on plaintiffs pendent state claims—a November 20, 1979 order issued by Magistrate John R. Countiss, III and a September 22, 1983 opinion by Judge Dan M. Russell, Jr.—and a published opinion of the Fifth Circuit denying an interlocutory appeal, Kenyatta v. Moore, 744 F.2d 1179 (5th Cir.1984). The factual summary herein duplicates that contained in this court's memorandum opinion and order dated September 27, 1985, granting defendant’s motion for summary judgment on plaintiff's pendent state claims.

      . By memorandum from F.B.I. Director J. Edgar Hoover dated August 25, 1967, the agency established a far-reaching counterintelligence program called "COINTELPRO-Black Nationalist Hate Groups" the stated purpose of which was "to expose, disrupt, misdirect, discredit, or otherwise neutralize the activities of black nationalist, hate-type organizations and groupings, their leadership, spokesmen, membership and supporters, and to counter their propensity for violence and civil disorder." (F.B.I. memorandum dated August 25, 1967).

      . The court is not here concerned with the merits of Kenyatta’s Bivens action against the defendants in their individual capacities.

      . 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; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons 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 support 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 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 procedural history of Griffin points out the incongruity in defendants' interpretation of the recent Fifth Circuit cases on this issue. Griffin .was originally filed in this court. Judge Dan M. Russell, Jr. dismissed the suit on the basis of insufficient state action to state a claim under § 1985(3). The Fifth Circuit affirmed, Griffin v. Breckenridge, 410 F.2d 817 (5th Cir. 1969), stating that while "it would not surprise us ... if § 1985(3) were held to embrace private conspiracies to interfere with rights of national citizenship,” it was bound to follow Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), and hold that state action was a prerequisite to a cause of action under § 1985(3). 410 F.2d at 825-26. On certiorari, the Supreme Court reversed. 403 U.S. 88, 91 S.Ct. 1790. Thus, the Fifth Circuit’s brief statements on the inapplicability of § 1985(3) to federal officials in Seibert v. Baptist, 594 F.2d 423 (5th Cir. 1979), and Mack v. Alexander, 575 F.2d 488 (5th Cir.1978), are, in light of Griffin, unsupported precedent.

      . Griffin was an action brought by black residents of Kemper County, Mississippi who were stopped by a group of white citizens on a public highway. The whites were acting under the mistaken impression that one of the blacks in the stopped car was a civil rights worker. The blacks were detained, assaulted and beaten. 403 U.S. at 89, 91 S.Ct. at 1792. Thus, the requisite racially discriminatory animus was clearly present in Griffin. Carpenters v. Scott was an action brought under § 1985(3) by workers against a labor union and several individuals who had allegedly assaulted and beaten the workers when they refused to join the union. The Supreme Court held that § 1985(3) cannot be construed to reach conspiracies motivated solely by economic or commercial animus. 463 U.S. at 838, 103 S.Ct. at 3360. Because the Carpenters v. Scott Court found the question of the required form of animus to be "dispositive”, it did not reach the question of what particular constitutional violations are actionable under § 1985(3). 463 U.S. at 833-34, 103 S.Ct. at 3358. Unlike Carpenters v. Scott, the particular discriminatory animus proscribed in § 1985(3) is clearly alleged here.

      . 42 U.S.C. § 1983 provides:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, 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. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

      . Sykes v. State of California Dept. of Motor Vehicles, 497 F.2d 197, 200 (9th Cir.1974); Bethea v. Reid, 445 F.2d 1163, 1164 (3rd Cir.1971), cert. denied, 404 U.S. 1061, 92 S.Ct. 747, 30 L.Ed.2d 749 (1972); Ryan v. Cleland, 531 F.Supp. 724, 733 (E.D.N.Y.1982); Lofland v. Myers, 442 F.Supp. 955, 957 (S.D.N.Y.1977); White v. Boyle, 390 F.Supp. 514, 515 (W.D.Va. 1975); Moore v. Schlesinger, 384 F.Supp. 163, 165 (D.Colo.1974); Williams v. Halperin, 360 F.Supp. 554, 556 (S.D.N.Y.1973).

      . Martinez v. Winner, 771 F.2d 424, (10th Cir.1985); Hobson v. Wilson, 737 F.2d 1 (D.C.Cir.1984); Jafree v. Barber, 689 F.2d 640 (7th Cir.1982); Gillespie v. Civiletti, 629 F.2d 637 (9th Cir.1980); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir.1975); Hampton v. Hanrahan, 600 F.2d 600 (7th Cir.1979); Waller v. Butkovich, 584 F.Supp. 909 (M.D.N.C.1984); Bergman v. United States, 551 F.Supp. 407 (W.D. Mich.1982); Peck v. United States, 470 F.Supp. 1003 (S.D.N.Y.1979); Alvarez v. Wilson, 431 F.Supp. 136 (N.D.Ill.1977).


author: McLAUGHLIN, District Judge.

text:
    Richard STUDINT, Individually and in the name of Lasalle Ice Cream Co., Inc., Plaintiff, v. LaSALLE ICE CREAM CO., INC., Steven Kissel and Sally Kissel, Defendants.
    No. 85 CV 0929.
    United States District Court, E.D. New York.
    Oct. 2, 1985.

      Solin & Breindel, P.C., New York City by Barry Skovgaard, for plaintiff.
    Bernstein & Arfa by Jonathan Arfa, and Stephen G. Eisenberg, New York City, for defendants.
   ORDER

McLAUGHLIN, District Judge.

Plaintiff, a former employee of defendant LaSalle Ice Cream Co. (“LaSalle”), brings this action for damages and other relief arising from the conditions of his former employment and his status as a shareholder of LaSalle. Plaintiff alleges violations of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 626, the common law of New York, and the New York Penal Law.

Defendants move to. dismiss the complaint for failure to state a claim, Fed.R. Civ.P. 12(b)(6). In the alternative, defendants contend that principles of pendent jurisdiction preclude adjudication by this Court of certain of the state claims alleged in the complaint. For the reasons discussed below, defendants’ motion is granted in part and denied in part.

Facts

Plaintiff is a shareholder and a former director, officer and employee of LaSalle. The individual defendants are officers or shareholders of the company. Plaintiff and defendants are parties to several written agreements, including an employment contract and a shareholders’ agreement.

In this action, plaintiff alleges that defendant “constructively terminated” plaintiff’s employment in violation of the ADEA, the employment contract, and state law, by denying him the right to participate in the management and operations of LaSalle; altering the nature and extent of his duties; humiliating, harassing and demoralizing him; and demanding that he undertake extensive demanding and menial chores.

In addition, plaintiff asserts several claims, including five stockholder’s derivative claims, charging defendants with waste, mismanagement, diversion of corporate funds and business opportunities, and refusal to allow plaintiff to inspect the books. The remedies sought by this latter class of claims include dissolution of the corporation, appointment of a receiver, accounting and damages.

Finally, it should be noted that an action commenced by LaSalle against plaintiff (wherein LaSalle alleges that plaintiff breached the agréments between the parties) is pending in state court. LaSalle Ice Cream Co., Inc. v. Richard Studint, Supreme Court, Nassau County, Index No. 3080/85. That action has been stayed pending a decision on this motion.

Discussion

With respect to defendants’ motion to dismiss the age discrimination claims under Rule 12(b)(6), I cannot say as a matter of law that “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). Accordingly, the motion to dismiss counts one and two is denied.

Defendants argue, however, that this Court should exercise its discretion and dismiss the fifteen pendent state claims as bearing little relationship to the underlying ADEA claim. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726-27, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) (“Gibbs”).

In Gibbs, the Supreme Court held that a federal court has the power to hear a pendent state claim if (a) the federal claim is substantial enough to confer subject matter jurisdiction on the court, and (b) the federal and state claims derive from a common nucleus of operative fact. Gibbs, supra, 383 U.S. at 725, 86 S.Ct. at 1138. Thus, clearly this Court has the power to decide plaintiff’s state claims since the ADEA claim is substantial enough to confer jurisdiction on the Court, and since, arguably, the federal and state claims derive from the common nucleus of the parties’ business and employment relationship.

The Gibbs Court stressed, however, that the mere existence of the power to hear state claims does not guarantee its exercise in every case:

It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its justification lies in consideration of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them____ Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law____ [I]f it appears that the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.

Gibbs, supra, 383 U.S. at 726, 86 S.Ct. at 1139. See Independent Bankers Association of New York State, Inc. v. Marine Midland Bank, N.A., 757 F.2d 453, 463-64 (2d Cir.1985).

For the purpose of this analysis, plaintiff’s claims can be divided into two broad categories. The first category, which includes plaintiff’s claims of breach of employment contract (count 3), wrongful termination (count 4), intentional/negligent infliction of emotional distress (count 5), harassment (count 6) and fraud in the inducement (count 11), together with the claims seeking specific performance of the employment contract (counts 9 & 10), relates to plaintiff’s employment relationship with the defendants and the alleged “constructive termination” of that relationship. Inasmuch as these claims are interrelated with the age discrimination claims, I find that, in the interest of judicial economy, convenience and fairness to the litigants, this Court should exercise its pendent jurisdiction over this category of claims. Cf. Birdwell v. Hazelwood School District, 491 F.2d 490, 495 (8th Cir.1974).

By the same token, I cannot say as a matter of law that plaintiff can prove no set of facts in support of these claims. Conley v. Gibson, supra, 355 U.S. at 45-46, 78 S.Ct. at 101-02. Accordingly, the motion to dismiss the state claims asserted in counts three-six, and counts nine-eleven, is denied.

An examination of the second category of claims, however, produces a different conclusion. Count seven charges that defendants have intentionally denied plaintiff the benefits of a stockholder, and thus, that the corporation should be dissolved and liquidated. Similarly, count eight seeks the appointment of a receiver, by reason of defendants’ alleged waste, mismanagement, diversion of corporate assets and opportunities and abuse of fiduciary responsibility. Count twelve seeks an accounting, by reason of defendants’ denial of plaintiff’s right, as a shareholder, to inspect the corporate books. Finally, plaintiff’s complaint includes five stockholder’s derivative claims, seeking damages, on behalf of the corporation, arising from the aforementioned conduct.

The claims raised in counts seven, eight and twelve, together with the stockholder’s derivative claims, relate not to the employer/employee relationship between the parties, but to plaintiff’s status as a stockholder and/or former officer and director of the corporation. In addition to money damages, these claims seek the equitable and extraordinary remedies of accounting, dissolution and receivership. Moreover, the stockholder’s derivative claims present additional issues regarding plaintiff’s ability to fairly and adequately represent the interests of the other shareholders and the corporation. Cohen v. Bloch, 507 F.Supp. 321, 324 (S.D.N.Y.1980).

In short, I find that the inclusion of these claims in this action will unnecessarily confuse the jury and prolong this litigation. Accordingly, the claims are dismissed without prejudice to plaintiff’s right to assert them in a state court proceeding.

Conclusion

Defendants’ motion to dismiss Counts seven, eight, twelve, and the five stockholder’s derivative claims is granted. In all other respects, defendants’ motion is denied. The parties are hereby directed to proceed with discovery on the open issues.

SO ORDERED.


author: ROSZKOWSKI, District Judge.

text:
    Scott PETERSEN, Plaintiff, v. The BOARD OF REGENTS OF the REGENCY UNIVERSITY SYSTEM, Defendant.
    No. 85 C 20030.
    United States District Court, N.D. Illinois, W.D.
    Oct. 10, 1985.

      Stanley H. Jakala, Berwyn, 111., for plaintiff.
    George Shur, DeKalb, 111., for defendant.
   ORDER

ROSZKOWSKI, District Judge.

The defendant Board of Regents has moved that the court grant summary judgment on its behalf. On the basis of the briefs submitted and for the reasons set out below the court grants summary judgment for the defendant.

BACKGROUND

Scott Petersen, the plaintiff in this action is a police officer for the Northern Illinois University Police Department. In August of 1985 Petersen received a memorandum from his superior, Captain Paul Leifheit of the University Police. The memorandum alleged three violations of department rules and recommended a three-day suspension. On August 31, the department held a hearing and neither side claims any procedural irregularities. Pursuant to a Collective Bargaining Agreement, however, the Plaintiff as a member of the Fraternal Order of Police had a right to a second hearing at the level of the Director of Personnel.

An attorney for the plaintiff and the union requested a schedule and then a continuance of that schedule for a second hearing. The employee Relations Officer whom the Director of Personnel designated to conduct the hearing refused to allow Petersen’s counsel to accompany Petersen into the hearing room. Only a union representative was allowed to and did accompany Petersen into the hearing room. The Employee Relations Officer subsequently approved the department’s request to suspend Petersen for three days and Petersen served the suspension in three consecutive work days.

DISCUSSION

Petersen claims that by denying him the right to have his attorney present at this second hearing the Board of Regents violated his constitutional rights to equal protection and to due process of the laws.

A. Equal protection claims

In Palcek v. City of Chicago Heights, 74 Ill.App.3d 702, 393 N.E.2d 1218, 30 Ill.Dec. 871 (1979), a police officer was discharged from the Chicago Heights Police Department after the City’s Board of Fire and Police Commissioners found the officer guilty of removing property from a store. The officer appealed his discharge contending that his statements that were used against him were obtained without a warning of the officer’s rights under certain Illinois statutes. The appellate court noted that one of three Municipal Code sections could determine a police officer’s rights during a discharge. The choice depended on the population of the employing community and whether the community had elected to be controlled by the civil service provisions of the Municipal Code section 10-1-1. Palcek, 74 Ill.App.3d at 703, 393 N.E.2d at 1220, 30 Ill.Dec. at 873 (citing Ill.Rev.Stat. ch. 24, Tt 10-1-1 (1977)).

If the City had a population of at least 5.000 and no more than 250,000 and was not subject to the Municipal Code section 10-1-1, or had a population of less than 5.000 and was subject to Division 2.1 of the Municipal Code, section 10-2.1-1 of the Municipal Code regulated removal and discharge. That section provided in pertinent part,

no officer or member of the fire or police department of any municipality subject to this Division 2.1 shall be removed or discharged except for cause, upon written charges, and after an opportunity to be heard in his own defense. * * * The board of fire and police commissioners shall conduct a fair and impartial hearing of the charges, to be commenced within 30 days of the filing thereof, which hearing may be continued from time to time. In case an officer or member is found guilty, the board may discharge him, or may suspend him not exceeding 30 days without pay. The board may suspend any officer or member pending the hearing with or without pay, but not to exceed 30 days.

Ill.Rev.Stat. ch. 24, ¶ 10-2.1-1 (1983). If the city was subject to the civil service provisions of the Municipal Code, section 10-1-18 applied, and it provided in pertinent part,

no officer or employee in the classified civil service of any municipality who is appointed under the rule and after examination, may be removed or discharged, or suspended for a period of more than 30 days, except for cause upon written charges and after an opportunity to be heard in his own defense. * * * Before any officer or employee in the classified service of any municipality may be interrogated or examined by or before any disciplinary board, or departmental agent or investigator, the results of which hearing, interrogation or examination maybe the basis for filing charges seeking his removal or discharge, he must be advised in writing as to what specific improper or illegal act he is alleged to have committed; he must be advised in writing that his admissions made in the course of the hearing, interrogation or examination may be used as the basis for charges seeking his removal or discharge; and he must be advised in writing that he has the right to counsel of his own choosing present to advise him at any hearing, interrogation or examination; and a complete record of any hearing, interrogation or examination shall be made and a complete transcript thereof made available to such officer or employee without charge and without delay. Nothing in this Division 1 limits the power of any officer to suspend a subordinate for a reasonable period not exceeding 30 days except that any employee or officer suspended for more than 5 days or suspended within 6 months after a previous suspension shall be entitled, upon request, to a hearing before the civil service commission concerning the propriety of such suspension.

Ill.Rev.Stat. ch. 24, ¶ 10-1-18 (1983) (emphasis added). Section 10-1-18.1 applied only to Chicago and provided in pertinent part,

In any municipality of more than 500,000 population, no officer or employee of the police department in the classified civil service of the municipality whose appointment has become complete may be removed or discharged, or suspended for more than 30 days except for cause upon written charge and after an opportunity to be heard in his own defense by the Police Board. Before any such officer or employee may be interrogated or examined by or before any disciplinary board, or department agent or investigator, the results of which hearing, interrogation or examination may be the basis for filing charges seeking his removal or discharge, he must be advised in writing as to what specific improper or illegal act he is alleged to have committed; he must be advised in writing that his admissions made in the course of the hearing, interrogation or examination may be used as the basis for charges seeking his removal or discharge; and he must be advised in writing that he has the right to counsel of his own choosing present to advise him at any hearing, interrogation or examination; and a complete record of any hearing, interrogation or examination shall be made and a complete transcript thereof made available to such officer or employee without charge and without delay.

Ill.Rev.Stat. ch. 24, ¶ 10-1-18.1 (1983) (emphasis added).

The court in Palcek assumed that section 10-2.1-1 which did not guarantee counsel applied. After examining possible reasons why the state might have guaranteed counsel to officers in some municipalities and not to officers in others, the court found no reasonable relationship between the objectives that the Municipal Code sought and the classification that the Municipal Code used. Palcek, 74 Ill.App.3d at 707, 393 N.E.2d at 1223, 30 Ill.Dec. at 876. Rather than declare section 10-2.1-1 unconstitutional, however, the court saved section 10-2.1-1 by reading it in pari materia with the other two sections as providing counsel for officers in every municipality. Id.

After the Palcek case had been decided, Illinois enacted the Uniform Peace Officer’s Act, P.A. 83-981 (codified at Ill.Rev. Stat. ch. 85, ¶¶ 2551-69 (1984 Cumm.Supp.) (effective Dec. 9, 1983). The Act guaranteed counsel to all local police officers being interrogated for formal investigations. The Act defines formal investigations as investigations “of misconduct which may be the basis for filing charges seeking his or her removal, discharge or suspension in excess of 3 days.”

The plaintiff Petersen is employed pursuant to the University Civil Service System, Ill.Rev.Stat. ch. 24V2, ¶¶ 38b1-38m, (1983). Aside from the Fraternal Order of Police’s collective bargaining agreement, section 38bl4 regulates discharges of university employees and provides in pertinent part,

no employee shall be demoted, removed or discharged except for just cause, upon written charges, and after an opportunity to be heard in his own defense if he makes a written request for a hearing to the Merit Board within 15 days after the serving of the written charges upon him. Upon the filing of such a request for a hearing, the Merit Board shall grant such hearing to be held within 45 days from the date of the service of the demotion, removal or discharge notice by a hearing board appointed by the Merit Board. The members of the hearing board shall be selected from among the members of a panel established by the Merit Board after consultation with the Advisory Committee provided in Section 36c. The hearing board shall make and render findings of facts on the charges and transmit to the Merit board a transcript of the evidence along with its findings of fact. The findings of the hearing board when approved by the Merit Board shall be certified to the employer. If cause for demotion, removal or discharge is found, the employee shall be immediately separated from the service.

Ill.Rev.Stat. ch. 24V2, II 38bl4 (1983).

The plaintiff suggests that the court should apply the equal protection analysis of Palcek to hold that a police officer employed under the University Civil Service system should have the same right to counsel as a municipal police officer. To prove an equal protection violation, however, the plaintiff has to prove that he is being treated differently than others similarly situated. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982). Neither of the statutes that the Palcek case interpreted nor the Uniform Peace Officers Act guarantees counsel to officers when the charge would be a basis only for a suspension of three days. See Municipal Code, Ill.Rev.Stat. ch. 24, TITT10-1-18, 10-1-18.1 (1983) (guaranteeing right to counsel when the results of the hearing “may be the basis for filing charges seeking his removal or discharge”). Uniform Peace Officers Act, Ill.Rev.Stat. ch. 85, 112552(c) (1984 Cumm.Supp.) (defining formal investigation as to an investigation which may be basis of charges seeking suspension in excess of 3 days). Because the plaintiff has made no showing that a municipal officer would have a right counsel for a hearing that might be the basis for a three-day suspension, the plaintiff has failed to show that he is being treated differently from those with whom he contends he is similarly situated. Therefore, the court will grant summary judgment for the defendants on the plaintiff’s equal protection claim.

B. Due process claims

Petersen contends that by denying him the right to have an attorney accompany him to his hearing prior to the three-day suspension, the Board of Regents denied him due process of law. Petersen claims that he has a property interest both in his job and in the suspension process. Both the practice of the University and the collective bargaining agreement of which Petersen is a member buttress his claim for a property interest in both the job and the suspension process. The Supreme .Court stated in Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972),

“Property” interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, “property” denotes a broad range of interests that are secured by “existing rules or understandings.” A person’s interest in a benefit is a “property” interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing.

Id. at 601, 92 S.Ct. at 2699; Schultz v. Baumgart, 738 F.2d 231, 235 (7th Cir.1984); Vail v. Board of Educ. of Paris Union Sch. Dist. No. 95, 706 F.2d 1435, 1437 (7th Cir.1983), aff'd. by an equally divided court, 466 U.S. 377, 104 S.Ct. 2144, 80 L.Ed.2d 377 (1984).

In Schultz, the Seventh Circuit found that a statute which allowed for a fire fighter’s dismissal only “for cause” supported a legitimate claim of entitlement based on “mutually explicit understandings.” Schultz, 738 F.2d at 235 (quoting Sinderman, 408 U.S. at 601, 92 S.Ct. at 2699). The statute in Schultz provided for board review of the administrator’s action and state court review of the board’s action. Moreover, Wisconsin court decisions involving the statute required the review board to submit a record that showed the board’s decision was reasonable based on the evidence. Schultz, 738 F.2d at 235.

The Seventh Circuit in Vail cited Sinderman to uphold a district court opinion that a high school athletic director had a property interest in his job based on an implied contract supportable by state law. Vail, 706 F.2d at 1438. The circuit court found that the implied contract constituted an “existing rule[ ] or understanding[ ]” within the meaning of Sinderman. Vail, 706 F.2d at 1437-38.

In the present case, the court finds that like the procedures involved in Schultz the practice of the University and the mutually explicit understanding of the University and the Fraternal Order of Police did give Petersen a property interest in both his employment and in the suspension process. There is nothing, however, within the collective bargaining agreement that secures a lawyer as a part of the suspension process. The rider that the plaintiff tenders which reports an agreement between the parties to discuss a right of counsel does not rise to the level of a mutually explicit understanding. The hearings that the plaintiff had were clearly as much as the collective bargaining agreement contemplated. Therefore the University deprived the plaintiff of no property with respect to the suspension process.

The question remains what process was due to the plaintiff before a deprivation of three days of work. In determining what process was due, the court must inventory the interests set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the addition of substitute procedural safeguards would entail.

Id. at 335, 96 S.Ct. at 903.

The Supreme Court recently revisited its analysis of Mathews in Walters v. National Ass’n of Radiation Survivors,—U.S.-, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985). In Walters, a district court had granted a nationwide injunction against the enforcement of a congressional act that limited to ten dollars the fee an attorney could charge a veteran or member of the veteran’s family to appear as an advocate for benefits before the Veterans Administration. The Supreme Court struck down the injunction, disagreeing that the plaintiffs were likely to succeed in their claims that Congress’s action violated the veterans’ due process rights to counsel. Id. at-, 105 S.Ct. at 3196.

After stating the serious deference that the Court owed to acts of Congress, the Court cast some light on its previous decisions concerning the type of process due to different due process claims, and particularly whether the process required the assistance of counsel. The Court stated that when personal liberty was at issue, counsel was nearly always necessary. Id. at-, 105 S.Ct. at 3195 (citing, e.g., Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)).

The Court noted, however, that when the right was a property interest further analysis was necessary. The court compared Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) in which the court required that counsel be permitted to take part in hearings on the termination of welfare benefits to Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) in which the Court had declined to require pretermination hearings before terminating social security benefits. According to the majority in Walters, the difference lay in the dependence of the plaintiffs in Goldberg on welfare benefits for their daily subsistence. Walters,—U.S. at-, 105 S.Ct. at 3195. The court held that the veterans’ benefits, because they were not based on need, were more analogous to the social security benefits at issue in Mathews. Id.

The Court characterized other of its due process cases as not requiring counsel because the situations were not adversarial and did not approximate a trial. Id. at-, 105 S.Ct. at 3196. In Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979), for example, the precommitment determination that a minor should be committed was better put to a doctor than a lawyer. Id. at -, 105 S.Ct. at 3194. In Walters, the Court determined that Congress had established a nonadversarial, ex parte process of applying for benefits that did not require counsel. Id. at-, 105 S.Ct. 3196.

In the instant case, the plaintiffs three-day suspension is not likely to precipitate the kind of need the Supreme Court recognized in Goldberg. But neither has the defendant made any showing that the hearings involved here are nonadversarial. The hearings do not appear at all analogous to the hearings at issue in Walters in which federal regulations directed the reviewing board to assist the claimant and to resolve all reasonable doubts in the claimants’ favor. Walters,-U.S. at-, 105 S.Ct. at 3183-84.

The hearings are neither the design of Congress nor the State. The exclusion of counsel is simply a University practice. The fiscal and administrative burdens that the University would have to shoulder by admitting counsel to these hearings appears to be minimal. The hearings themselves are already required, and counsel could reduce significantly the risk of erroneous deprivations of property. See Walters,—U.S. at-, 105 S.Ct. at 3197-98 (O’Connor, J. concurring) (although under instant facts denial of attorney not a due process violation, complicated case or greater loss at stake may raise due process implications). The court can infer no good reason for the defendant Board of Regents to exclude counsel from suspension hearings as a matter of course.

The court must look at due process actions like the present one on a case-by-case basis. The court will direct its inquiry primarily toward two factors: the severity of the loss and the nature of the hearing. Although the court can presage actions in which one of the factors by its own weight will compel the presence of counsel, normally the court will base its determination on a combination of both these factors. This is essentially the Mathews analysis set out above as the Court in Walters focused it on the question of counsel.

In the present action the court can find only that the exclusion of the plaintiffs attorney from the plaintiff’s hearing was inadvisable. Because the violations of which the plaintiff was accused presented fairly simple factual underpinnings, and the hearing resulted in only a three-day suspension, the court cannot find that the exclusion of the plaintiff’s attorney constituted a due process violation. Therefore the court grants summary judgment to the defendants.

      . Petersen’s Sergeant charged him with violations of these three rules:
      a. Attention to Duty, Section IV.09 of Departmental Rules and Regulations—making “false official reports or enter[ing] or causfing] to be entered in any department book record any inaccurate, false or improper entry or misrepresentation of the facts."
      b. Department Procedure A-03, Section 1(d) —failing “to gather all possible information, names, and evidence necessary to complete the accident report."
      c. Uniforms and Equipment, Section 11.34 of Department Rules and regulations—tearing up and destroying "an official accident report [partially typed] which had been initialed by another officer.”

      . The Uniform Peace Officers’ Act, § 3.9 provides,
      The officer under investigation shall have the right to be represented by counsel of his or her choosing and may request counsel at any time before or during interrogation. When such request for counsel is made, no interrogation shall proceed until reasonable time and opportunity are provided the officer to obtain counsel.
      If a collective bargaining agreement requires the presence of a representative of the collective bargaining unit during investigations, such representative shall be present during the interrogation, unless this requirement is waived by the officer being interrogated.
      Ill.Rev.Stat. ch. 85, ¶ 2562 (1984 Cumm.Supp.)

      . The Uniform Peace Officers’ Act, § 2 provides,
      For the purposes of this Act, unless clearly required otherwise, the terms defined in this Section have the meaning ascribed herein:
      (a) "Officer" means any peace officer, as defined by Section 2-13 of the Criminal Code of 1961, as now or hereafter amended, who is employed by any unit of local government, including supervisory, and command personnel. The term does not include crossing guards, parking enforcement personnel, traffic wardens or employees of any State’s Attorney’s Office.
      (b) "Informal inquiry” means a meeting by a supervisory or command personnel with an officer upon whom an allegation of misconduct has come to the attention of such supervisory or command personnel, the purpose of which meeting is to mediate a citizen complaint or discuss the facts to determine whether a formal investigation should be commenced.

        (c) “Formal investigation" means the process of investigation ordered by a commanding officer during which the questioning of an officer is intended to gather evidence of misconduct which may be the basis for filing charges seeking his or her removal, discharge or suspension in excess of 3 days.
      (d) "Interrogation” means the questioning of an officer pursuant to the formal investigation procedures of the respective local governmental unit in connection with an alleged violation of such unit's rules which may be the basis for filing charges seeking his or her suspension, removal, or discharge. The term does not include questioning (1) as part of an informal inquiry or (2) relating to minor infractions of agency rules which may be noted on the officer’s record but which may not in themselves result in removal, discharge or suspension in excess of 3 days.
      (e) "Administrative proceeding” means any non-judicial hearing which is authorized to recommend, approve or order the suspension, removal or discharge of an officer.
      Ill.Rev.Stat. ch. 85, ¶2552 (1984 Cumm.Supp.).

      . The plaintiff has also claimed a liberty interest in not being stigmatized as unprofessional by his suspension and the mark on his record. Hershinow v. Bonamarte, 735 F.2d 264 (7th Cir. 1983), however, clearly states that a police officer’s three-day suspension and mark on his record do not implicate liberty interests. Id. at 266.

      . Plaintiffs exhibit H is a rider to the collective bargaining agreement.
      In addition to renegotiation of Article X wages in an Agreement approved December 9, 1982, between the parties thereto, the parties also agree to additional discussions on the issue of permitting attorneys to be present and to participate in hearings conducted by the Personnel Office regarding potential disciplinary suspension of bargaining unit employees.
      /s/ Darlin H. Fenboer for Northern Illinois University
      /s/ George Liepins for Fraternal Order of Police
      11/30/82 Date


author: HAIGHT, District Judge.

text:
    Richard F. CAVALLARY, Plaintiff, v. LAKEWOOD SKY DIVING CENTER, Honorable Robert H. Doherty, Jr., J.S.C., and Keith O. Evans, Esq., Defendants.
    No. 84 Civ. 3030-CSH.
    United States District Court, S.D. New York.
    Oct. 11, 1985.

      Richard F. Cavallary, pro se.
    Law Firm of William F. O'Connor, New York City, for defendant The Lakewood Sky Diving Center; Edward D. Lory, John D. Beche, of counsel.
    Irwin I. Kimmelman, Atty. Gen. of N.J., Trenton, N.J., for defendant; Benjamin Clarke, Deputy Atty. Gen., of counsel.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge.

Plaintiff pro se Richard F. Cavallary brings this action, under 42 U.S.C. § 1983, claiming that defendants have denied him the right to trial by jury of a civil action in a New Jersey state court without due process of law. Cavallary also presses related state tort claims under this Court’s diversity jurisdiction, 28 U.S.C. § 1332.

In the New Jersey action, Cavallary sued defendant, The Lakewood Skydiving Center (“Lakewood”), to recover for injuries allegedly sustained in a skydiving accident on August 1, 1982. Cavallary was represented in that action by defendant Keith 0. Evans, Esq. The matter was assigned to defendant The Honorable Robert H. Doherty, Jr., Judge of the Supreme Court of New Jersey.

All three defendants move to dismiss, or for summary judgment, on the claims against them. Plaintiff has filed no papers in response to the motions.

I. The Honorable Robert H. Doherty, Jr.

In his complaint, plaintiff asserts that on or about March 12, 1984, Judge Doherty dismissed the New Jersey action. Plaintiff contends that in doing so, Judge Doherty failed to grant him a trial by jury and did “not provid[e] [Cavallary] with due process of law.”

Judge Doherty’s motion to dismiss the complaint against him on the ground that this Court lacks in personam jurisdiction over him, pursuant to F.R.Civ.P. 12(b)(2), is granted. Under F.R.Civ.P. 4(f), service of process on a non-New York domiciliary in this action may be effected only to the extent permitted by New York’s long-arm statute. N.Y.C.P.L.R. § 302(a). In addition, the out-of-state defendant must have sufficient minimum contacts with New York such that this Court’s exercise of jurisdiction over him would comport with “traditional notions of fair play and substantial justice.” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945), citing Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 342, 85 L.Ed. 278 (1940).

It is undisputed that at all relevant times Judge Doherty lived and worked in New Jersey; that he has not transacted business in New York; that he owns no property here; and that he has committed no tortious act within the state. Although Cavallary as a New York resident was arguably “injured” by Judge Doherty’s dismissal of his action, Cavallary filed that action in the New Jersey court and all proceedings in connection therewith, including the dismissal, took place in New Jersey.

I conclude that Judge Doherty lacks the minimum contacts with New York that are a prerequisite to this Court’s exercise of in personam jurisdiction over him.

Even if this Court could assert in personam jurisdiction over Judge Doherty, the complaint against him would have to be dismissed as barred by the doctrine of judicial immunity, see, Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), since this is a suit only for money damages and not injunctive relief, cf. Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 1981, 80 L.Ed.2d 565 (1984), and Cavallary does not assert that Judge Doherty acted in the “clear absence of all jurisdiction,” Stump v. Sparkman, 435 U.S. 349, 356-57, 98 S.Ct. 1099, 1104-05, 55 L.Ed.2d 331 (1978).

Judge Doherty’s motion to dismiss the claim against him is granted.

II. Keith O. Evans, Esq.

Evans, counsel for Cavallary in the New Jersey action, moves for summary judgment on plaintiff’s claim against him for legal malpractice. Plaintiff claims that Evans breached his agreement to provide plaintiff with adequate legal representation by “allowing and condoning the [New Jersey action] to be dismissed” and “by not claiming ‘gross negligence’ during [those] proceedings.” (Complaint, Third Claim).

By affidavit, Evans explains the reasons why Cavallary’s suit against Lakewood was dismissed by Judge Doherty. Lakewood had moved for summary judgment on the claims against it based on a waiver provision contained in the contract between Cavallary and Lakewood. That provision exempted Lakewood from all liability due to any injury Cavallary might suffer while participating in the skydiving instruction and jump, and further contained a covenant by Cavallary never to sue Lakewood on such a claim. Evans, on behalf of Cavallary, opposed the motion, arguing that the waiver should not be enforced on public policy grounds. Evans argued that the contract was one of adhesion; that it was the product of unequal bargaining positions between the parties, and that provisions exempting a party from liability for its own negligence are not favored in law. After oral argument on the motion, Judge Doherty dismissed the action.

In a letter to Cavallary dated March 15, 1984, Evans explained that Judge Doherty found that Cavallary voluntarily and knowingly signed the contract, including the waiver provision, and was bound thereby. He further informed Cavallary of his right to appeal the dismissal, but advised against doing so as he saw no meritorious basis for appeal.

On these uncontroverted facts, plaintiffs allegation that Evans permitted the action to be dismissed without objection simply cannot be sustained. Furthermore, even if Evans had argued that Lakewood had been “grossly” negligent, it would have made no difference to the outcome of the motion before Judge Doherty. Evans is entitled to summary judgment on the claim against him.

III. The Lakewood Skydiving Center

Lakewood moves for summary judgment, pursuant to F.R.Civ.P. 56, on Cavallary’s claim against it on the ground that it is barred by the doctrine of res judicata.

A comparison of the allegations against Lakewood in Cavallary’s Amended Complaint in the New Jersey action and his allegations against Lakewood in the instant action reveal that the language is virtually identical and the claim is exactly the same. In both actions, Cavallary claimed that Lakewood was negligent in training him to skydive and in supervising his first jump. As noted, supra, Judge Doherty ruled that as a matter of law, Cavallary has waived his right to assert such a claim against Lakewood.

Thus a judgment adjudicating Cavallary’s negligence claim against Lakewood was entered on the merits in the New Jersey action. As stated before, Cavallary was represented by counsel in that action. Since the claim and the parties are identical in that action and the instant action and since, on this record, the court sees no ground for questioning the validity of the New Jersey Court’s judgment or its jurisdiction to enter that judgment, it must be given full faith and credit and preclusive effect in these federal proceedings. Bottini v. Sadore Management Corp., 764 F.2d 116, 119 (2d Cir.1985); United States Constitution, Art. 4, § 1.

I grant Lakewood’s motion for summary judgment on the claim against it.

IV. Motions for Costs and Attorneys’ Fees

Lakewood seeks judgment in its favor on its counterclaim for costs and attorneys’ fees incurred in defending this action. Evans seeks an award of costs and attorney’s fees incurred in defending this action, evidently pursuant to F.R.Civ.P. 11, on the ground that at least one of plaintiff’s allegations against him was made “maliciously, with knowledge that it was false, and solely for the purpose of harassment.” (Evans’ brief in opposition at 4). Both motions are granted.

This is the second action Cavallary has filed against Lakewood despite the fact that Judge Doherty ruled he is contractually bound not to sue them. He has raised no new issues not already decided. It cannot be said that at the time Cavallary filed his complaint against Lakewood in the instant action, he had any reasonable belief that his claim was warranted by existing law, as required by F.R.Civ.P. 11. In these circumstances, an award of reasonable costs and attorneys’ fees is within the court’s discretion, pursuant to F.R.Civ.P. 11, to compensate Lakewood for again having to respond to these allegations. ■

As to Evans’ application, I agree that on the undisputed facts, Cavallary had no reasonable belief, at the time he filed this complaint, that Evans in fact had permitted the New Jersey action to be dismissed without objections; nor that his alternative argument was warranted by existing law, as required by Rule 11.

I am inclined to the view that both motions would lie under the pre-1983 version of Rule 11, which conditioned the award of attorney's fees upon a showing of bad faith in the conduct of litigation. See Advisory Committee’s Notes to 1983 amendments; Nemeroff v. Abelson, 620 F.2d 339, 348-51 (2d Cir.1980). But the motions certainly are well founded under the 1983 amendments, which substitute the standard of “reasonableness in the circumstances,” in the Advisory Committee’s phrase.

Furthermore, present Rule 11 mandates the imposition of sanctions on the offending party, see Eastway Construction Corp. v. City of New York, 762 F.2d 243, 253-54 (2d Cir.1985).

I recognize that plaintiff appears pro se. But that does not render him immune to a Rule 11 application for costs and attorney’s fees. The Advisory Committee wrote:

“Amended Rule 11 continues to apply to anyone who signs a pleading, motion, or other paper. Although the standard is the same for unrepresented parties, who are obliged themselves to sign the pleadings, the court has sufficient discretion to take account of the special circumstances that often arise in pro se situations. See Haines v. Kerner, 404 U.S. 519 [92 S.Ct. 594, 30 L.Ed.2d 652] (1972).”

I would not impose sanctions upon a pro se plaintiff who lacked the training to perceive legal inadequacies in his claim which counsel should have seen. But in the case at bar, plaintiff was told in no uncertain terms by the New Jersey court that his claim against Lakewood had no basis in law. As for plaintiff’s suit against Evans, it is frivolous, and, I infer, spiteful.

Evans and counsel for defendant Lakewood are directed to file and serve, within twenty (20) days of the date of this order, appropriate affidavits giving the details of the expenses and fees it claims. These affidavits must be accompanied by copies of lawyers’ time sheets and other appropriate proof. Within fourteen (14) days thereafter, Cavallary may file an affidavit and memorandum of law in opposition. Any disputes will be resolved in such further proceedings as may be appropriate.

The Clerk of the Court is directed to enter judgment in favor of all three defendants, dismissing the action with prejudice and with costs.

It is SO ORDERED.