The opinion of the court was delivered by: CURTIN
Plaintiffs have submitted to the court a civil rights complaint (42 U.S.C. §§ 1983 and 1985) along with an affidavit of poverty and seek permission to proceed in forma pauperis. 28 U.S.C. § 1915.
On December 2, 1976, the Buffalo Courier-Express carried a story, written by reporter David E. Lynch, which was headlined: "Attica Inmates Reported Ready to Demonstrate." The first two paragraphs of that story read:
Attica prisoners plan to demonstrate if the state legislature does not act favorably on their proposals by mid-January, according to the head of the guards' union there.
"They say they are going to do their thing," union president Ronald Wert said, "and it's not going to be peaceful this time."
Mr. Wert was referring to the peaceful demonstration of inmate support for a proposed prison reform package which many Attica inmates sought to bring to public attention by remaining in their cells during a seven-day period in August 1976. The remainder of the news story focused on aspects of corrections reform legislation, particularly on proposed revisions in the parole procedures.
Plaintiffs have alleged that this single reported statement by Mr. Wert deprives them, and the class they purport to represent, of equal protection of the laws and of other privileges and immunities under the Constitution. This allegation is founded on plaintiffs' expressed belief that Mr. Wert's statement was made in an attempt to intimidate, threaten and put fear of loss of life into plaintiffs and other inmates.
Plaintiffs also seek to sue the following:
(1) Reporter David Lynch, whom plaintiffs contend conspired with defendant Wert to deprive them of rights, privileges and immunities under the Constitution, in violation of 42 U.S.C. § 1985, by reporting defendant Wert's statement;
(2) Guard Union, Local 1040, which allegedly condoned defendant Wert's statement;
(3) Commissioner Benjamin Ward and Superintendent Harold Smith, who allegedly failed to use their authority to stop publication of the article and other acts of defendant Wert; and
(4) William J. Conners, III, president and publisher of the Buffalo Courier-Express, who allegedly allowed publication of the December 2, 1976 article and of an editorial entitled "Prisoner Threats Could Hamper Reforms" which appeared in the Courier-Express on December 4, 1976.
After reviewing the claims made by plaintiffs, I have concluded that this action is patently frivolous and must be dismissed pursuant to 28 U.S.C. § 1915(d).
At the outset, the claim against the prison guards' union is clearly not cognizable here since the union is not a "person." See Monell v. Dept. of Social ...