Lester Slotnick v. Harold Staviskey, 560 F.2d 31, 1st Cir. (1977)

560 F.
2d 31
Lester SLOTNICK, Plaintiff, Appellant,

v.
Harold STAVISKEY et al., Defendants, Appellees.
No. 76-1533.
United States Court of Appeals,

First Circuit.
July 28, 1977.
Lester Slotnick, pro se.

Richard Rogalin, Quincy, Mass., on brief, for Philip Fixman, defendant,
appellee.
Robert A. Greeley, Boston, Mass., on brief for Harold Staviskey and
Stanley Stillman, defendants, appellees.
Francis X. Bellotti, Atty. Gen., and Paula R. Rosen, Asst. Atty. Gen.,
Boston, Mass., on brief, for the Honorable Salvatore Aloisi, Stephen J.
White and Freyda Koplow, defendants, appellees.
Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit
Judges.
COFFIN, Chief Judge.
This is an appeal from orders dismissing a 1983 action. Appellant represented

himself throughout this suit. His grievance arose when a credit union began a
collection suit. In broad outline, he alleges that the suit was for an inflated
amount; that a false affidavit was filed alleging that he had no defense to the
claim; that he was brought into court for a determination of his ability to pay by
a constable who lacked the authority to do so; that the state court judge
determined that he could afford a payment schedule, but appellant said he
would not comply with it; as a result, the judge held him in contempt of court
and he was jailed briefly; and that finally his brother paid the debt. Throughout
this period, he made complaints to the state banking commissioner's office,
which investigated and concluded that the allegations were not well-founded.
2
Appellant then filed suit in federal court, naming as defendants the state court
judge, his clerk, the constable, the treasurer of the credit union, the attorney for
the credit union and the banking commissioner. He alleged that these parties
"conspired to deprive the plaintiff of his civil rights."
The claims against several parties may be easily disposed of. The allegations
against the banking commissioner were tangential to the central theme. The
commissioner filed an affidavit in support of a motion for summary judgment.
Appellant's counter-affidavit was made up of conclusory statements alleging
the existence of a conspiracy. This situation was one that was
4
"ripe
for summary judgment. . . . When a motion for summary judgment has been
properly made and supported, an adverse party must set forth specific facts showing
that there is a genuine issue for trial. Fed.R.Civ.P. 56(e). This plaintiff has failed to
do." Briggs v. Kerrigan, 431 F.2d 967, 968 (1st Cir. 1970).
5
Returning to the principal parties, we note that the state court judge enjoys
absolute immunity from suit under 1983, see Pierson v. Ray, 386 U.S. 547, 87
S.Ct. 1213, 18 L.Ed.2d 288 (1967), as does his clerk. See Sullivan v. Kelleher,
405 F.2d 486, 487 (1st Cir. 1968); Waits v. McGowan, 516 F.2d 203, 206 (3d
Cir. 1975).
The district court considered the remaining defendants when they moved for a
directed verdict at the close of the plaintiff's opening statement. After a
painstaking inquiry into the plaintiff's grievances, the court concluded that the
case against the remaining defendants should also be dismissed. The court
stated that the "principal basis" of its decision was the doctrine of judicial
immunity. Although two of the remaining parties were private parties,
performing no judicial or quasi-judicial functions, the court concluded that they
were protected by judicial immunity because they were accused of conspiring
with a judge and his clerk. The district court relied on decisions in several other
circuits holding that suits under 1983 cannot be maintained against private
parties who conspire with immune state officials. Although the court expressed
doubts about the wisdom of these decisions, it felt bound to follow them.
Nonetheless, the court also advanced a "subsidiary" ground: that plaintiff's
claims did not rise to the dignity of constitutional violations.
Since the district court ruled, we have taken the position that private parties
who conspire with immune officials may be sued under 1983. Kermit Constr.
Corp. v. Banco Credito y Ahorro Ponceno, 547 F.2d 1 (1st Cir. 1976). Although
our position has some support in other cases, see Grow v. Fisher, 523 F.2d 875
(7th Cir. 1975), see also Fine v. New York, 529 F.2d 70, 74 (2d Cir. 1975), a
larger number take the contrary view. See, e. g., Haldane v. Chagnon, 345 F.2d
601, 604 (9th Cir. 1965); Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974);
Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir. 1975). See also Hazo v.
Geltz, 537 F.2d 747, 749 (3d Cir. 1976). Whether we were right in Kermit,
however, is not an issue that arises in this case, for the plaintiff's complaint fails
a preliminary test.1
8
In an effort to control frivolous conspiracy suits under 1983, federal courts

have come to insist that the complaint state with specificity the facts that, in the
plaintiff's mind, show the existence and scope of the alleged conspiracy. It has
long been the law in this and other circuits that complaints cannot survive a
motion to dismiss if they contain conclusory allegations of conspiracy but do
not support their claims with references to material facts. Dunn v. Gazzola, 216
F.2d 709, 711 (1st Cir. 1954); Kadar Corp. v. Milbury, 549 F.2d 230 (1st Cir.
1977); Fletcher v. Hook, 446 F.2d 14 (3rd Cir. 1971); Johnson v. Stone, 268
F.2d 803 (7th Cir. 1959); Ellingburg v. King, 490 F.2d 1270 (8th Cir. 1974);
Powell v. Jarvis, 460 F.2d 551 (2d Cir. 1972). This rule might have been
applied with profit to this case.2 The complaint contains frequent references to
conspiracy, but it offers few insights into the specific nature of the alleged
concerted action. The only specific allegation regarding a conspiracy is the
statement that the constable forged illegal documents and served them on the
plaintiff at the request of the credit union's lawyer and with the knowledge of
the court's clerk. Despite language hinting at a wider conspiracy, the plaintiff
has failed to plead facts supporting these vague claims, and the courts need not
conjure up unpleaded facts to support these conclusory suggestions. O'Brien v.
DiGrazia, 544 F.2d 543, 546 n. 3 (1st Cir. 1976).
The district court could properly have treated the complaint as charging only
the narrower conspiracy. This view of the complaint is reinforced by the
plaintiff's opening statement to the jury and the ensuing dialogue between trial
judge and plaintiff, in which the judge helped the plaintiff to state
systematically all of his claims against each defendant. In this way it was
revealed that the plaintiff objected to the notices he received during the credit
union's suit against him. He believed, for example, that the state seal should not
have been attached to some of the documents served on him, that other
documents were not properly signed or supported by affidavits, and that the
constable was not empowered to serve process in cases involving more than
$650. The plaintiff also had other grievances; he thought that the credit union
and its attorney had sued for more than the proper amount and that they filed
incorrect affidavits during the suit; finally, he believed that the judge had
incorrectly jailed him for refusing to pay the judgment. Despite a lengthy
colloquy, the plaintiff again made only one allegation of conspiracy under color
of state law. Again the plaintiff claimed that the credit union's lawyer had
conspired with the constable to harass the plaintiff into court by means of
alleged procedural irregularities and threatening phone calls.
10
With the conspiracy charges thus narrowed, the district court's action was
clearly correct. The court was able to conclude that the plaintiff was largely
wrong in his view of what procedures were required by state law. In addition,
the court held, and we agree, that none of the procedural defects that lie at the
heart of the alleged conspiracy violated the plaintiff's constitutional right to due
process. Cf. Smith v. Organization of Foster Families for Equality and Reform,
431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977). The notice given to the
plaintiff was adequate; he had ample opportunity for a hearing in state court,
where his hypertechnical objections belong. The simple fact that state law
prescribes certain procedures does not mean that the procedures thereby acquire
a federal constitutional dimension. See Screws v. United States, 325 U.S. 91,
108, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (opin. of Douglas, J.); Street v.
Surdyka, 492 F.2d 368, 371 (4th Cir. 1974). Cf. Bishop v. Wood, 426 U.S. 341,
96 S.Ct. 2074, 48 L.Ed.2d 684 (1976).3
11
Affirmed.
Speaking only for himself, the writer of this opinion adds these remarks. He
would not hesitate to disapprove Kermit without further ado if that decision
were clearly wrong in the light of Haldane v. Chagnon, supra, and its progeny.
But reflection does not undermine Kermit. Rather, Haldane itself was undercut
by United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267
(1966) and Adickes v. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d
142 (1970). These cases establish that private individuals who conspire with
state officers are acting "under color" of state law, whether or not the state
official is actually joined in the suit. Id. at 152, 90 S.Ct. 1598. It is hard to
believe that the reasoning of Price would not apply if a judge, rather than a
sheriff, conspired to release civil rights workers so that thugs could waylay and
kill the workers. The judge who abuses his power is still acting under the color
of law; he escapes damages liability only in order that his more conscientious
brethren may do their jobs in peace. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct.
1213, 18 L.Ed.2d 888 (1967); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984,
47 L.Ed.2d 128 (1976). If the judge is still acting under color of law, so are his
associates. To hold otherwise would give an ill-conceived defense to judge and

conspirators alike, not only in federal damage suits, but in criminal prosecutions
and actions for injunctive relief, where state action is also a prerequisite. See
United States v. Price, supra, 383 U.S. at 794-95, n. 5, 86 S.Ct. 1152. Cf.
United States v. Wiseman, 445 F.2d 792, 794 (2d Cir.), cert. denied, 404 U.S.
967, 92 S.Ct. 346, 30 L.Ed.2d 287 (1971). It is difficult also to explain Haldane
as giving a separate "co-conspirator's immunity", in light of the absence of such
at common law, and, while others accord substantial weight to the
embarrassment and inconvenience which a judge might suffer if he could be
summonsed into court as a witness, this writer looks upon such an interest as
less important than that of bringing conspirators to book. See Imbler v.
Pachtman, supra, 424 U.S. at 421, 96 S.Ct. 984. Moreover, as our disposition
shows, careful scrutiny of pleadings can winnow out the insubstantial claim
without resort to expanding immunities
2
We do not criticize the district court for its handling of the case. Indeed, by
letting the plaintiff deliver an opening statement to the jury and then by
questioning the plaintiff about the nature of his claim, the trial judge showed
painstaking care
The plaintiff also charges the trial judge with bias. There is no merit in this
claim

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560 F.

Lester SLOTNICK, Plaintiff, Appellant,

United States Court of Appeals,

Lester Slotnick, pro se.

This is an appeal from orders dismissing a 1983 action. Appellant represented

In an effort to control frivolous conspiracy suits under 1983, federal courts

associates. To hold otherwise would give an ill-conceived defense to judge and

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