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June 23, 1969

Saul STAMBLER, Rose Stambler, Empire Park, Inc. (a defunct corporation), Empire Park, Inc., Prudential Operating Co., Inc., Plaintiffs,
John J. DILLON, Title Guarantee Co., Peter Wasylec, Marcy Finke, George B. Gordon, David Avstreih, Leonard Weiss, John J. O'Malley, County Dollar Corporation, Defendants

The opinion of the court was delivered by: HERLANDS

HERLANDS, District Judge:

 The amended complaint in the instant action alleges that the defendants acted and conspired in such a way as to violate various civil rights statutes, inter alia, 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, 1994, and the Fifth, Sixth, Thirteenth and Fourteenth Amendments to the United States Constitution. Plaintiffs assert that jurisdiction arises under 28 U.S.C. §§ 1331, 1332 and 1343; and declaratory relief is sought under 28 U.S.C. §§ 2201 and 2202.

 Answers by all the defendants except Justice Dillon assert the defenses of lack of subject matter jurisdiction, lack of in personam jurisdiction, res judicata and failure to state a claim upon which relief can be granted.

 By this group of motions all the defendants move to dismiss the amended complaint under Fed.R.Civ.P. 12(b)(1), (2) and (6) for lack of subject matter jurisdiction; lack of jurisdiction over the person; for failure to state a claim; and, alternatively, defendants urge the Court to grant summary judgment dismissing the complaint for failure to state a claim. An injunction prohibiting the plaintiffs from continuing the instant action any further is also sought along with sanctions and costs.

 The Court finds it unnecessary to consider matter submitted outside the pleadings and hereby holds that the amended complaint fails to state a claim for relief as against any and all the defendants.

 Because plaintiffs appear pro se and raise claims under the Civil Rights Statutes, 42 U.S.C. § 1981 et seq., the Court has given a liberal reading to the amended complaint but still finds it entirely inadequate for reasons elaboated upon below.

 Where a litigant raises claims under the Civil Rights Statutes, even though a complaint appears to be insubstantial, the more judicious approach is to assume jurisdiction and then decide whether the pleading states a claim for relief. See, e.g., United States v. Guest, 383 U.S. 745, 756, 86 S. Ct. 1170, 16 L. Ed. 2d 239 (1966); Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773, 90 L. Ed. 939 (1946); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S. Ct. 263, 13 L. Ed. 2d 186 (1964); Jemzura v. Belden, 281 F. Supp. 200 (N.D.N.Y.1968); Joe Louis Milk Co. v. Hershey, 243 F. Supp. 351 (N.D. Ill. 1965); Olson v. Board of Ed., 250 F. Supp. 1000 (E.D.N.Y.1966); Campbell v. Glenwood Hills Hospital, Inc., 224 F. Supp. 27 (D.Minn.1963).

 The Amended Complaint

 The facts alleged in the amended complaint indicate that plaintiffs were unsuccessful parties in three civil actions consolidated and tried before Justice Dillon in the New York State Supreme Court, in and for the County of Westchester. The defendants in the instant action include Justice Dillon, the successful parties in the state court actions, their counsel, a trial witness and others alleged to have participated in certain real estate transactions which were the subject matter of those actions.

 The amended complaint alleges a conspiracy between Justice Dillon and the other defendants to deprive plaintiffs of their property without due process of law and in violation of the equal protection clause of the fourteenth amendment and other constitutional rights, and seeks an order declaring the state court judgment null and void, a permanent injunction restraining all defendants from enforcing that judgment, and damages in the amount of $500,000. from all the defendants other than Justice Dillon. *fn1"

 Prior Proceedings

 1. This Court denied a preliminary injunction on March 28, 1968 noting that "there is more than a substantial doubt whether there is subject matter jurisdiction and whether plaintiffs have stated a claim upon which relief can be granted." *fn2"

 2. On July 13, 1968, Judge McGohey granted Justice Dillon's motion for summary judgment dismissing the complaint for failure to state a claim under §§ 1981, 1982, 1983 and 1985, 288 F. Supp. 646. Judge McGohey was of the view that, if in fact Justice Dillon did act without jurisdiction, the doctrine of judicial immunity was inapplicable to him and that, consequently, the district court did have subject matter jurisdiction under 28 U.S.C. § 1343. He held, however, that the complaint failed to state a cause of action under §§ 1981 and 1982, inasmuch as they deal only with racial discrimination, and none was alleged in the complaint; that § 1986 was inapplicable to Justice Dillon because no damages were sought against him; that he need not decide whether plaintiffs stated a claim under §§ 1983 and 1985 "for in any event the complaint fails to allege sufficient facts to show that Justice Dillon was part of any such conspiracy if one existed. The complaint does no more than charge Justice Dillon in the most general terms with participation in the alleged conspiracy. This is not enough. * * * The complaint shows only that the judge performed the normal duties of his office in the trial and decision of the issues in a strongly contested litigation."

 Plaintiffs' claim of involuntary servitude and Saul Stambler's claim, in the original complaint, that he was convicted of fraud and deceit without a trial, were found frivolous by Judge McGohey.

 3. Judge Tenney, on October 7, 1968, granted plaintiffs leave to file an amended complaint pursuant to Rules 59(e) and 15(a) of the Federal Rules of Civil Procedure, in order to give them "an additional opportunity to allege 'with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy', Powell v. Workmen's Compensation Bd., 321 [327] F.2d 131, 137 (2d Cir. 1964)". Judge Tenney specifically stated that the court expressed no opinion as to whether plaintiffs could eventually state a cause of action.

 In addition, Judge Tenney granted the defendants' motions to dismiss the complaint as to the corporate plaintiffs because they were not ...

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