Shaare Tefila Congregation v. Cobb , 785 F.2d 523 ( 1986 )

K.K. HALL, Circuit Judge:

Shaare Tefila Congregation and individual representatives of the class comprised of its members and employees appeal from the district court’s order dismissing their action against defendants.¹ Plaintiffs brought this action pursuant to 42 U.S.C. §§ 1981, 1982 and 1985(3) and the Maryland common law of trespass, nuisance, and intentional infliction of emotional distress. We affirm.

I.

Shaare Tefila Congregation is a Jewish community of approximately 500 member families, who assemble at their synagogue in Silver Spring, Maryland, in order to worship and engage in community activities. On the evening of November 2, 1982, members and employees of Shaare Tefila Congregation met at the synagogue for activities, including a board of directors’ meeting. Marshall S. Levin, the Executive Director of Shaare Tefila Congregation, remained at the synagogue after the meeting. There, he received a telephone call from Dr. Jacob Teller, one of the board members, informing him that Teller’s car had been spray-painted with a swastika while parked at the synagogue for the meeting. When Levin went outside to search for possible further damage, he discovered that the white outside walls of the synagogue had been spray-painted in red and black with large anti-Semitic slogans and symbols, which included the words “Death to the Jude,” “In, Take a Shower Jew,” “Toten Kami Raband,” and “Dead Jew,” swastikas, a skull and cross bones, and Ku Klux Klan symbols.

On March 16, 1984, Shaare Tefila Congregation and several of its members and employees (the “Congregation”) filed this civil rights class action against defendants in federal district court. In its complaint, the Congregation alleged violations of 42 U.S.C. §§ 1981, 1982, and 1985(3) and the Maryland common law of trespass, nuisance, and intentional infliction of emotional distress.

Before the completion of discovery, one of the defendants filed a motion under Fed. R.Civ.P. 12(b)(1) and (6) to dismiss the complaint. The district court granted the motion. The Congregation’s section 1981 claim, alleging that defendants’ conduct deprived plaintiffs of the full and equal benefit of the laws, was dismissed on the ground that it did not involve any state action. Shaare Tefila Congregation v. Cobb, 606 F.Supp. 1504, 1506-07 (D.Md.1985). The district court dismissed the Congregation’s section 1982 claim after concluding that discrimination against Jews is not race discrimination within the meaning of the statute. Id. at 1507-09. The court refused to adopt the Congregation’s position that the racial animus requirement of section 1982 is satisfied if defendants are motivated by a perception that plaintiffs are racially distinct, reasoning that such a position relies “entirely on the idiosyncracies of individual defendants.” Id. at 1508.

In view of its dismissal of appellant’s claims under sections 1981 and 1982, the district court also dismissed the Congregation’s section 1985(3) claim insofar as it alleged a conspiracy to deprive appellant of rights under sections 1981 and 1982. Id. at 1509. The district court further held that neither the federal constitutional right to interstate travel nor the various state rights asserted by appellant could support a cause of action under section 1985(3). Specifically, the court found that appellant’s claim concerning the right to interstate travel was based on conclusory allegations and that section 1985(3) reaches only federal — not state — rights. Id. at 1509-10.

Because of its dismissal of all of the Congregation’s federal claims, the district court also dismissed the pendent state claims. Id. at 1510. In addition, although the motion to dismiss was filed on behalf of only one defendant, the district court found that its rulings required dismissal of the entire action against all of the defendants. Id.

This appeal followed.

II.

On appeal, the Congregation contends that the district court erred in dismissing its claims under sections 1981, 1982, and 1985(3). We disagree.

Section 1981 provides, in pertinent part, as follows:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.

With respect to its section 1981 claim, the Congregation alleged in its complaint that “[djefendants’ desecration of the synagogue ... deprived plaintiffs of the full and equal benefit of laws for the security of persons and property. Defendants’ desecration ... was motivated by racial prejudice in that defendants perceive plaintiffs as racially distinct because they are Jews.”

The Congregation acknowledges on appeal that no state action was involved in defendants’ acts. It maintains, however, that the district court erred in concluding that state action is required in order to bring a “full and equal benefit” action under section 1981. We, however, agree with the Third Circuit’s interpretation of the “full and equal benefit” clause of section 1981 and conclude that state action is required in order to assert a claim under that statute. See Mahone v. Waddle, 564 F.2d 1018 (3d Cir.1977), cert. denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147 (1978).

In Mahone, the Third Circuit distinguished the “full and equal benefit” clause of section 1981 from the “contracts” clause of that statute. It noted that the right “to make and enforce contracts” was by nature concerned with relationships between private parties, and a prohibition against race discrimination in the private sector was readily implied. On the other hand, the Third Circuit stated:

The words “full and equal benefit of all laws and proceedings for the security of persons and property” (emphasis supplied) ... suggest a concern with relations between the individual and the state, not between two individuals. The state, not the individual, is the sole source of law, and it is only the state acting through its agents, not the private individual, which is capable of denying to blacks the full and equal benefit of the law. Thus, while private discrimination may be implicated by the contract clause of section 1981, the concept of state action is implicit in the equal benefit clause.

Id. at 1029. Because appellant’s section 1981 “full and equal benefit” claim does not involve any state action, we find that the district court did not err in dismissing that claim. Moreover, for the reasons discussed in the next section, we conclude that the requisite racial motivation to sustain a section 1981 claim was lacking.

III.

Next, the Congregation alleges that the district court erred in dismissing its section 1982 claim. Section 1982 states that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.” Appellant’s section 1982 claim, as stated in its complaint, was that “[djefendants’ desecration of the synagogue ... deprived plaintiffs of the right to hold real and personal property. Defendants’ desecration of the synagogue was motivated by racial prejudice in that defendants perceive plaintiffs as racially distinct because they are Jews.”

Appellant argues that the district court’s dismissal of its section 1982 claim is erroneous as a matter of law because defendants’ desecration of the synagogue had a racial character, was motivated by racial animus and, thus, is actionable under section 1982. The Congregation maintains that Jews are not members of a racially distinct group and do not wish to be so considered. It nevertheless argues that because defendants viewed Jews as a racially distinct group, defendants’ acts constituted racial discrimination in violation of section 1982. In support of its argument, the Con: gregation relies upon the Tenth Circuit’s decision in Manzanares v. Safeway Stores, Inc., 593 F.2d 968 (10th Cir.1979). We reject appellant’s contentions and find nothing in the statute, its legislative history, or subsequent case law which would lead us to conclude that section 1982 was intended to apply to situations in which a plaintiff is not a member of a racially distinct group but is merely perceived to be so by defendants. We conclude that Manzanares is, if correct at all, inapposite.

Manzanares involved a section 1981 action brought by a plaintiff of Mexican-American descent against his employer and labor union, alleging that he was discriminated against due to his race and/or national origin in that he was treated differently from Anglo-Americans. The Tenth Circuit concluded that “section 1981 is directed to racial discrimination primarily, but is not necessarily limited to the technical or restrictive meaning of ‘race,’ ” id. at 971, and held that the plaintiff’s contentions were sufficient to state a claim under section 1981. Appellants urge us to extend the Tenth Circuit’s reasoning here. We decline to do so. Manzanares did not hold that a defendant’s mere perception of a plaintiff as racially distinct is sufficient to constitute racial discrimination in violation of section 1981. Instead, the Tenth Circuit emphasized that Mexican-Americans, as a group, are commonly treated differently from Anglo-Americans, as a group. We do not find the position of Jews in this society to be analogous to that of Mexican-Americans or others commonly considered to be non-whites.

Although we sympathize with appellant’s position, we conclude that it cannot support a claim of racial discrimination solely on the basis of defendants’ perception of Jews as being members of a racially distinct group. To allow otherwise would permit charges of racial discrimination to arise out of nothing more than the subjective, irrational perceptions of defendants. Such perceptions are not what section 1982 was intended to protect against. Because discrimination against Jews is not racial discrimination, and the Supreme Court has stated that section 1982 does not address discrimination on account of religion or national origin, Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968), we find that the district court properly dismissed the Congregation’s section 1982 claim.

IV.

Appellant’s last contention is that the district court erred in dismissing its section 1985(3) conspiracy claim.² In that claim, the Congregation alleged, inter alia, the following:

By conspiring to and desecrating the synagogue ... defendants conspired for the purpose of depriving, either directly or indirectly, the class of members of ... [the] Congregation of the equal protection of the laws or of equal privileges and immunities under the laws, including, but not limited to, plaintiffs’ federal constitutional right to travel, 42 U.S.C. §§ 1981 and 1982, ... Maryland criminal laws prohibiting destruction of property and conspiracy to destroy property, and Maryland common law prohibiting trespass, nuisance and intentional infliction of emotional distress.

On appeal, the Congregation asserts that its section 1985(3) claim should not have been dismissed, because it stated valid causes of action under sections 1981 and 1982. In addition, appellant argues that the district court erred in holding that its complaint failed to support a cause of action under section 1985(3) based on its federal constitutional right to interstate travel. The Congregation maintains that from its allegations in the complaint as to the location of the synagogue, the residency of the synagogue’s members, the conduct of the defendants, and the effect of that conduct on appellant, a finder of fact could conclude that the purpose and effect of defendants’ conspiracy was to deprive congregants of their right to engage in interstate travel. Finally, the Congregation disputes the district court’s conclusion that appellant did not state a section 1985(3) claim for violation of its rights under Maryland law. It asserts that state law rights are appropriate rights upon which to base violations of section 1985(3).

The Congregation cannot base its section 1985(3) claim on sections 1981 and 1982, because, for the reasons discussed in the preceding sections of this opinion, it failed to state causes of action under those statutes. We reject appellant’s remaining contentions as to its section 1985(3) claim upon the reasoning of the district court. Shaare Tefila Congregation, 606 F.Supp. at 1509-10.

V.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.

1 . Defendants are private individuals who allegedly vandalized plaintiffs’ synagogue.

2 . Section 1985(3) provides in pertinent part, the following:

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; ... 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.