specific actions of Eugene Weisman and Kones Paramananthan in renewing the operating certificate, plaintiffs' claims survive.
As the administrative team, the Weismans and defendant Paramananthan are alleged to have run the Manor. One might infer from this that the group of defendants were jointly involved in the major decisions involved in operating the Manor; communications with DSS to secure the operating license would certainly be one of them. Hence, although the factual foundations are weak at this point, we decline to dismiss plaintiffs' §§ 1962(d) claim against them.
However, not even the barest of inferences exists connecting defendant Weisman's Rest Hotel with the operation of the Manor. The only allegation concerning it states that it leases the buildings used by the Manor. Unlike the individual defendants, no alleged facts exist as of yet tying Weisman's Rest Hotel with the operation of the Manor. If facts develop during discovery to justify amending the complaint to replead, we shall naturally consider them. At this point, however, we grant defendants' motion to dismiss the claims under §§ 1962(d) and 1985(3) as against Weisman's Rest Hotel.
D. Section 1985(3) Claim
To state a claim under 42 U.S.C. § 1985 (3), plaintiffs must show: (1) a conspiracy; (2) for the purposes of depriving, either directly or indirectly, any person or class of persons to the equal protection of the laws; and (3) act in furtherance of the conspiracy; (4) whereby a person is injured in his person or property or deprived of any right or privileges of a citizen of the United States. United Bhd. of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 828-29, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983) (refusing to extend § 1985(3)'s protections to commercial and economic animus); Griffin v. Breckenridge, 403 U.S. 88, 102-03, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971).
Plaintiffs claim that defendants conspired to deny them equal protection due to their status as a class of disabled persons residing at the Manor.
Section § 1985(3) clearly provides a remedy for conspiracies to deprive persons of their rights under the United States Constitution. Traggis v. St. Barbara's Greek Orthodox Church, 851 F.2d 584, 587 (2d Cir. 1988) (citing United Bhd. of Carpenters v. Scott, 463 U.S. 825, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983)). The question is which persons or class of persons may seek such remedies.
Focusing on the second element, defendants attack plaintiffs' § 1985(3) conspiracy claim arguing that plaintiffs are not members of any protected class. Defendants correctly contend that to state a claim under § 1985(3), plaintiffs must allege that the conspiracy was motivated by class-based discriminatory animus. See Bettio v. Village of Northfield, 775 F. Supp. 1545, 1567 (N.D. Ohio 1991).
The best that can be said of § 1985(3) jurisprudence thus far is that it has been marred by fits and starts, plagued by inconsistencies, and left in flux by the Supreme Court.
The language in § 1985(3) requiring intent to deprive a person of equal protection or equal privileges and immunities means that "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." Griffin, 403 U.S. at 102. While the Supreme Court in Griffin ruled that § 1985(3) applied to private conspiracies, the Court equivocated on whether it applied to non-racial classes.
Later, in Scott, 463 U.S. 825, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983), the Court recognized that "it is a close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause, most notably Republicans." Id. at 836. It then reaffirmed Griffin's holding that "racial, or perhaps otherwise class-based, invidiously discriminatory animus" must be at work. 463 U.S. at 835.
The Court's holding, while certainly not definative, left open the possibility that § 1985(3) emcompasses more than simply racial animus. Using the language in Griffin as a jumping off point, courts have held that protection under § 1985(3) extends to the "discrete and insular" minorities who receive special protection under the equal protection clause because of inherent personal characteristics. See Browder v. Tipton, 630 F.2d 1149, 1150 (6th Cir. 1980). Some courts have interpreted it to mean that the § 1985(3) class must be a well-defined and traditionally disadvantaged group. See Orshan v. Anker, 489 F. Supp. 820 (E.D.N.Y. 1980).
Most recently, the Supreme Court revisited § 1985(3) in Bray v. Alexandria Women's Health Clinic, 122 L. Ed. 2d 34, 113 S. Ct. 753, 61 U.S.L.W. 4080 (1993). In that case, several abortion clinics and supporting associations sued to enjoin an association and several individuals who organized an anti-abortion demonstration, from conducting demonstrations at clinics in the Washington, D.C. metropolitan area. The Court held that opposition to abortion does not qualify as an "otherwise class-based invidiously discriminatory animus" for purposes of proving a private conspiracy in violation of § 1985(3). The Court determined that a class for purposes of § 1985(3) must be:
something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant disfavors. Otherwise, innumerable tort plaintiffs would be able to assert causes of action under § 1985(3) by simply defining the aggrieved class as those seeking to engage in the activity the defendant has interfered with. This definitional ploy would convert the statute into the "general federal tort law" it was the very purpose of the animus requirement to avoid.
Id. at 4081. This definitional problem does not cause any significant difficulty in the case at bar. Plaintiffs allege that their status as disabled residents of the Manor, as opposed to any particular activity they have engaged in, is the reason for defendants alleged unequal treatment. In other words, plaintiffs claim that defendants targeted them for their scheme at least in part because of their disability status.
Before turning to the specific question of whether a class of disabled individuals is cognizable under § 1985(3), we make one final point. Recognizing that the idea of equal protection is enshrined in both § 1985(3) and the fourteenth amendment, our opinion, though not expressly governed by fourteenth amendment jurisprudence, is at least informed by it. See Triad Associates, Inc. v. Chicago Housing Authority, 892 F.2d 583, 593 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990).
Other courts have explicitly held that disabled individuals do not constitute a "class" within the meaning of § 1985(3). See, e.g., D'Amato v. Wisconsin Gas Co., 760 F.2d 1474, 1486-87 (7th Cir. 1985) ("The legislative history of Section 1985(3) does not suggest a concern for the handicapped."); Wilhelm v. Continental Title Co., 720 F.2d 1173, 1176-77 (10th Cir. 1983), cert. denied, 465 U.S. 1103, 80 L. Ed. 2d 131, 104 S. Ct. 1601 (1984); Downs v. Sawtelle, 574 F.2d 1, 16 (1st Cir.), cert. denied, 439 U.S. 910 (1978); Miller v. City of Dixon, 1992 U.S. Dist. LEXIS 4692 at *14 (W.D. Ill. 1992); Moreno v. Pennsylvania, 1990 U.S. Dist. LEXIS 18606 at *23-24 (E.D. Pa. 1990); Ahlberg v. Kansas, 1990 U.S. Dist. LEXIS 7006 at *10 (D. Kan. 1990); Herhold v. City of Chicago, 723 F. Supp. 20, 35 (N.D. Ill. 1989); Kolpak v. Bell, 619 F. Supp. 359, 373 (N.D. Ill. 1985); Corkery v. SuperX Drugs Corp., 602 F. Supp. 42 (M.D. Fla. 1985); Cain v. Archdiocese of Kansas City, Kan., 508 F. Supp. 1021, 1027 (D. Kan. 1981); see also Story v. Green, 978 F.2d 60, 64 (2d Cir. 1992) (noting that disability has not generally been considered a suspect or quasi-suspect classification under the equal protection clause).
The court in D'Amato, offering a more sustained discussion of disability as a proper class within § 1985, relied upon the original intent underlying Congress' passage of § 1985 as § 2 of the "Klu Klux Klan Act of 1871" to combat the racial battles waged by against African-Americans and the Thirteenth, Fourteenth, and Fifteenth Amendments during the Reconstruction Era. See D'Amato, 760 F.2d at 1487; Wilhelm, 720 F.2d at 1176; see also Triad Associates, 892 F.2d at 592 ("it cannot be doubted that the predominant purpose of the legislature in passing the Act was to combat the prevalent animus against Blacks and their supporters in the South during the Reconstruction Era.").
The D'Amato court concluded that "being handicapped is not a historically suspect class such as race, national origin, or sex." Id. at 1486. Underpinning this conclusion was the court's observation that:
handicaps vary greatly from immediately noticeable physical handicaps to ones not at first obvious or those revealed only by a medical examination. Handicaps are also a condition that may be overcome, depending on the individual and on the handicap; likewise the severity with which a handicap affects a person varies from individual to individual.