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January 17, 1983

Frank BODENMILLER, Plaintiff,
Donald STANCHFIELD, Director of Motor Vehicle Hicksville Local of APWU, Leonard Comodeo, President of Hicksville Local of APWU, Morris Biller, President of APWU, Douglas C. Holbrook, General Secretary Treasurer of APWU, Anthony Passaro, Hon. Thomas J. Downey and Rosalie Cipola, Defendants

The opinion of the court was delivered by: MISHLER

MISHLER, District Judge.

 Plaintiff Bodenmiller was formerly a paid Congressional Aide to the Honorable Thomas J. Downey, United States Representative for the Second Congressional District ("Downey"). In August of 1978 Bodenmiller began an investigation into certain alleged abuses of the "injured on duty" clause of the American Postal Workers Union ("APWU") contract with the United States Postal Service. *fn1" Plaintiff alleges that various defendants objected to his investigation and that, as a result, he was suspended and subsequently dismissed from employment.

 Bodenmiller brought this action pursuant to 42 U.S.C. § 1985(1) and (2), *fn2" alleging that various defendants conspired to prevent him from discharging his lawful duties as a Congressional Aide and from giving testimony in a federal court proceeding. Bodenmiller also raises certain state law claims. Stanchfield is sued in his representative capacity as Director of Motor Vehicle Craft American Postal Workers Union (APWU) -- Hicksville Local. Comodeo is sued as president of APWU -- Hicksville Local. Downey is the United States Representative for the Second Congressional District in the State of New York. Cipola is Downey's Administrative Assistant. Passaro was the subject of Bodenmiller's investigation.

 Defendants move to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(1) and (6), Fed.R.Civ.P. Two of the defendants, Downey and Cipola, also raise the issue of Congressional immunity. *fn3" Plaintiff claims that this court has original subject matter jurisdiction over the federal question here on the grounds that a valid claim is stated under 42 U.S.C. § 1985 and pendent jurisdiction over the state claims. We dismiss the complaint pursuant to Rule 12(b)(1) and (6), Fed.R.Civ.P.


 The facts alleged in the complaint are summarized here. *fn4" On or about August 1978 to October 1978, Bodenmiller commenced the investigation described above. (Par. 8). He reported the filing of false claims for paid sick leave to officials of the U.S. Postal Service. (Par. 9). He arranged for postal inspectors to interview Kathy Passaro. (Par. 11). Defendant Passaro was arrested on the complaint of his wife Kathy Passaro on December 5, 1978 and criminal charges were filed. (Par. 13). *fn5" On December 20, 1978 a petition signed by APWU members was submitted to Downey. *fn6" On that day, Downey reprimanded Bodenmiller "for his involvement in the investigation of Passaro." (Par. 16). Bodenmiller then advised Downey "that he would most probably be called to testify in the criminal action that had been brought against defendant Passaro regarding the alleged fraudulent 'injured on duty' claim." (Par. 16). On January 3, 1979 Downey showed Bodenmiller a letter from Stanchfield which accused Bodenmiller of "political skull-doggery" and accused Bodenmiller and Kathy Passaro (defendant Passaro's wife) of conspiring to file false charges against defendant Passaro. (Par. 17). *fn7" On January 5, 1979 Downey suspended Bodenmiller for two weeks to teach him a lesson. (Par. 18). On January 30, 1979 Stanchfield wrote Downey and charged Bodenmiller with disrupting the marital relationship between the Passaros and offering to show that the charges against Passaro were false. (Par. 19 and letter attached to Complaint). On May 11, 1979 Downey discharged Bodenmiller. (Par. 20).

 In addition to the facts pleaded by the plaintiff, as set forth above, the court takes judicial notice of the following facts concerning the criminal action against Passaro: Passaro was released following his arrest, no grand jury was convened respecting this charge against Passaro and, as a result, no indictment was brought and no proceeding was instituted against Passaro in a federal court.

 Bodenmiller's First claim is brought pursuant to 42 U.S.C. § 1985(1). Stanchfield, Comodeo, APWU, Passaro, Downey and Cipola are charged with conspiring "by means of intimidation and threat to prevent the plaintiff Bodenmiller from holding his position of United States Congressional Aide" (Par. 21) and "from discharging his lawful duties as a United States Congressional Aide." (Par. 22).

 The Second claim is brought pursuant to 42 U.S.C. § 1985(2). The same defendants are charged with conspiring to prevent "Bodenmiller from testifying in the federal proceeding brought against Passaro" (Par. 25) and conspiring to injure Bodenmiller "in his property" by seeking his suspension and discharge as a Congressional Aide to Downey for having given testimony to United States Postal Inspectors. (Par. 26).


 In determining the sufficiency of a claim under challenge through Rule 12(b)(6), the allegations of the complaint are to be taken as true." United States v. Mississippi, 380 U.S. 128, 143, 85 S. Ct. 808, 816, 13 L. Ed. 2d 717 (1965). The allegations of the complaint should be construed most favorably to the pleader and should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S. Ct. 1843, 1849, 23 L. Ed. 2d 404 (1969). However, where the claim fails to state facts upon which liability may attach, the complaint should be dismissed. De Loach v. Crowley's, Inc., 128 F.2d 378 (5th Cir.1942). See 2A J. Moore & J. Desha Lucas, Moore's Federal Practice para. 12.08, n. 5 (2d ed. 1982).

 In a claim based on conspiracy, the facts alleged must show with certainty "particularly what a defendant or defendants did to carry the conspiracy into effect, whether such acts fit within the framework of the conspiracy alleged, and whether such acts, in the ordinary course of events would proximately cause injury to plaintiff." Hoffman v. Halden, 268 F.2d 280, 295 (9th Cir.1959). "Complaints containing only 'conclusory,' 'vague,' or 'general allegations' of a conspiracy to deprive a person of constitutional rights will be dismissed . . . Diffuse and expansive allegations are insufficient unless amplified by specific instances of misconduct." Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977). (Citations omitted).

 The classic definition of conspiracy is:

. . . a combination of two or more persons, to do an unlawful or criminal act or to do a lawful act by unlawful ...

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