acknowledged, the statement "go and fight the state" could just as easily refer to New York state -- in the guise of the OMH or DHCR -- as the capitalistic state. (Tr. 120)
Viewing all of the evidence as a whole, this court finds that plaintiff has not raised any material question of fact as to whether defendants were motivated by his politics. Assuming all of plaintiff's allegations of harassment are true, it is clear that any words and actions leveled directly at him by defendants stemmed from his behavior as an individual and not as a socialist. See Gleason, 869 F.2d at 695 ("As did the district court, we agree with that portion of Justice Blackmun's dissent in Scott which stated that under section 1985 'the intended victims [of discrimination] must be victims not because of any personal malice the conspirators have toward them, but because of their membership in or affiliation with a particular class.'") (quoting Scott, 463 U.S. at 850) (Blackmun, J., dissenting). Since plaintiff must prove class-based animus in order to maintain a Section 1985 action, defendants are entitled to summary judgment. Accordingly, all claims based on Section 1985 should be dismissed.
Defendants make two additional arguments regarding Section 1985 liability: that the Urban Coalition is not a state actor and that plaintiff cannot show a conspiracy. As the absence of class-based animus is dispositive, this court will deal with the remaining arguments in summary fashion. Since Section 1985 is purely remedial and "'provides no substantial rights itself,'" Scott, 463 U.S. at 833 (quoting Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979)), the "rights privileges and immunities that § 1985(3) vindicates must be found elsewhere." Id. In this case, plaintiff claims he was denied of equal protection under the fourteenth amendment. Although Section 1985 can reach some private conspiracies, Griffin v. Breckenridge, 403 U.S. 88, 101, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), the substantive right upon which this claim is based does have a state action requirement. See United States v. Guest, 383 U.S. 745, 755, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966) (holding that rights under equal protection clause arise only when actor is state or conduct is under color of state law). Compare Emanuel v. Barry, 724 F. Supp. 1096, 1102 (E.D.N.Y. 1909) (holding if no state action, Section 1985(3) claim can be maintained only if plaintiff alleges deprivation of private right, such as under thirteenth amendment).
To satisfy this requirement, plaintiff alleges that the Urban Coalition -- a not-for-profit corporation -- is a state actor; he points to the Coalition's receipt of funds from state agencies and its use of those funds pursuant to various written agreements. However, the Supreme Court case law on this issue indicates, fairly clearly, that these ties to New York State are insufficient to constitute state action. See, e.g., Rendell-Baker v. Kohn, 457 U.S. 830, 843, 73 L. Ed. 2d 418, 102 S. Ct. 2764 (1982) (holding no state action by private school deriving 90% of its funding from public sources and subject to extensive public regulation); Blum v. Yaretsky, 457 U.S. 991, 73 L. Ed. 2d 534, 102 S. Ct. 2777 (1982) (finding extensively regulated, publicly funded nursing homes not state actors, explaining that "'the mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.' . . . The complaining party must also show that 'there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.'") (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350-351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974).
Defendants also argue that plaintiff has not proven a conspiracy since all the co-conspirators are employees of the same organization. The Second Circuit has held that a conspiracy among two or more employees of a corporation acting in the normal course of their employment does not constitute a conspiracy "between two or more persons" for the purposes of § 1985(3). Girard v. 94th Street and Fifth Avenue Corp., 530 F.2d 66, 71 (2d Cir.), cert. denied, 425 U.S. 974, 48 L. Ed. 2d 798, 96 S. Ct. 2173 (1976). An employee's scope of employment is quite broad and encompasses all actions that are "actuated, at least in part, by a purpose to serve the master." W. Page Keeton et. al Prosser & Keeton on the law of Torts § 70, at 502 (5th ed. 1984).
Since all the co-conspirators charged with violating Section 1985 are employees of the Urban Coalition, plaintiff has failed to satisfy yet another of that statute's requirements.
II. Section 1986
42 U.S.C. § 1986 claim provides, in relevant part:
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses to do so, if such wrongful act be committed, shall be liable to the party injured . . . for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented . . . .
Since liability under Section 1986 derives wholly from Section 1985, in order to impose liability under the former a court first must find liability under the latter. Dacey v. Dorsey, 568 F.2d 275, 277 (2d Cir.), cert. denied, 436 U.S. 906, 56 L. Ed. 2d 405, 98 S. Ct. 2238 (1978) ("Having failed to state a cause of action under § 1985, plaintiff has failed to state a claim under § 1986). Accordingly, since defendants are entitled to summary judgment on plaintiff's Section 1985 claim, summary judgment is appropriate on the 1986 claim as well.
Dated: Brooklyn, New York
November 4, 1992
I. LEO GLASSER, U.S.D.J.