Schneider v. Tretola ( 1993 )

USCA1 Opinion

        October 20, 1993        [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________


        No. 93-1686 

                                  DENNIS SCHNEIDER,

                                Plaintiff, Appellant,

                                          v.

                           JOSEPH S. TRETOLA, ETC., ET AL.,

                                Defendants, Appellees.


                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                   [Hon. Douglas P. Woodlock, U.S. District Judge]
                                              ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Dennis Schneider on Motion for Summary Disposition pro se.
            ________________
            James G.  Healy and Healy  and Healy, P.C.  on Motion for  Summary
            _______________     ______________________
        Disposition, for  appellees Joseph S. Tretola,  Brookside House, Inc.,
        and Brookside House Trust.
            Kevin  Madden on  Motion  for Summary  Disposition,  for  appellee
            _____________
        Wayne M. Gray.


                                 ____________________


                                 ____________________












                      Per   Curiam.     Plaintiff's  action   was  properly
                      ____________

          dismissed under Fed. R. Civ.  P. 12(b)(6) for failure to state  a

          cause of action.

                      1.  The  defendants, all private persons,  can not be

          held liable  under 42 U.S.C.    1983  for their  alleged acts  in

          employing "false representations and phony process to induce  the

          policemen to  falsely arrest" and imprison  plaintiff because the

          private defendants'  actions do not constitute  "state action," a

          requisite of a   1983 cause of action.    See Daniel v. Ferguson,
                                                    ___ ______    ________

          839 F.2d 1124, 1129-31 (5th Cir. 1988) (even if private defendant

          did  provide  police with  false  information,  the state  action

          requirement  for     1983  liability  was  not  satisfied   since

          "[p]olice  reliance in making an arrest on information given by a

          private  party does not make  the private party  a state actor").

          Plaintiff's citation  below to  Canty v.  Richmond, 383  F. Supp.
                                          _____     ________

          1396  (E.D. Va.  1974),  was unavailing  to  establish the  state

          action requirement because  in that case,  the plaintiff  alleged

          that  the  private  defendants  had  conspired with  governmental

          actors to  falsely arrest  him.   Although  a conspiracy  between

          official  and private actors is one means through which the state

          action  requirement can be satisfied, plaintiff did not allege in

          the  present  case  such  an agreement  between  the  police  and

          defendants to violate plaintiff's rights.  Instead, he  contended

          that defendants had  misled the police with  false statements and

          phony documents.

                      2.  Nor did plaintiff state a claim under 42 U.S.C.  

          1985(2)  for  conspiracy  to  obstruct  state  court  proceedings

          because plaintiff failed to allege that defendants were motivated












          by any  class-based, invidiously discriminatory animus.   Hahn v.
                                                                    ____

          Sargent,  523  F.2d  461,  469  (1st  Cir.  1975)   (class-based,
          _______

          invidiously discriminatory animus is required for liability under

             1985(2)  for conspiring  to  obstruct justice  in  state court

          proceedings), cert. denied, 425 U.S. 904 (1976).
                        ____________

                      3.   If plaintiff intended to assert a state law tort

          action for false arrest and false imprisonment, plaintiff did not

          allege diversity  jurisdiction and failed to  establish any basis

          for the  federal district  court  to exercise  jurisdiction  over

          state law tort claims.

                      Affirmed.
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