The opinion of the court was delivered by: TENNEY
Defendant moves for an order pursuant to Rule 12(b) of the Federal Rules of Civil Procedure dismissing plaintiff's complaint on the grounds of lack of jurisdiction, failure to state a claim upon which relief may be granted and incapacity to bring suit.
Plaintiff appears pro se and, as is not uncommon in such situations, has drawn pleadings and affidavits which are disjointed, difficult to follow and often unintelligible. Under the circumstances, and as required by the Rules, the Court has construed plaintiff's papers with liberality in order to determine whether sufficient can be drawn from the allegations contained therein to stand up against defendant's motion.
Plaintiff alleges that he is presently serving a 40-year to life sentence in the state prison at Stormville, New York. Plaintiff further alleges that the "illegal and unconstitutional" conviction on which this sentence is based is presently on appeal in the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.
On May 16, 1966, plaintiff commenced the instant action for $10,000 damages against the Dean of Students at City College in New York City. Plaintiff alleges that the defendant entered into a conspiracy with Burton Roberts, an Assistant District Attorney of New York County, and others, which resulted in the denial to plaintiff of due process of law as guaranteed by the Fourteenth Amendment. Specifically, plaintiff charges that his constitutional rights were violated when the defendant schemed to prevent one Valerie Zeller and the plaintiff himself from testifying on plaintiff's own behalf at plaintiff's trial.
At the outset, the Court has serious reservations about whether it has jurisdiction in this case. Plaintiff states that jurisdiction is based on Title 28 of the United States Code, Sections 1331 and 1343. 28 U.S.C. § 1331 provides in pertinent part:
(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States.
It is clear that federal jurisdiction under 28 U.S.C. § 1331 cannot be sustained on the bare allegation that the claim arises "under the Constitution, laws, or treaties of the United States." The claim on which the Constitutional issue is raised must be well-pleaded. Stanturf v. Sipes, 335 F.2d 224 (8th Cir. 1964), cert. denied, 379 U.S. 977, 85 S. Ct. 676, 13 L. Ed. 2d 567 (1965). See Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946); Gully v. First Nat'l Bank, 299 U.S. 109, 57 S. Ct. 96, 81 L. Ed. 70 (1936). And a mere assertion of the deprivation of a Constitutional right is not sufficient to sustain jurisdiction; conclusory statements unsupported by adequate factual allegations will not suffice. See Stanturf v. Sipes, supra, and cases cited therein. An examination of plaintiff's papers discloses a definite failure to invoke the jurisdiction of this Court under 28 U.S.C. § 1331. The only reference to the Constitution or a federal statute in plaintiff's complaint is the bare allegation that his conviction was unconstitutional. In a paper designated as "Statement of Compliance with Rule 8(a) FRCP", plaintiff alleges that federal questions are involved and that plaintiff has suffered Constitutional deprivations. In another paper, incorrectly labeled plaintiff's "cross-motion and answer", plaintiff states that his complaint sets forth a conspiracy within the ambit of the Fourteenth Amendment. Plaintiff devotes one rambling and disjointed paragraph to various conclusory allegations that his rights under the Constitution have been violated. Clearly, the requirements of 28 U.S.C. § 1331 have not been met.
Plaintiff also invokes the jurisdiction of this Court under 28 U.S.C. § 1343(2) and (3). These subsections provide:
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent;
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or ...