591 F.

2d 605

Linda (Sinklear) LESSMAN, Plaintiff-Appellant,

v.
Bill McCORMICK, Fred Howard, Ed Ritchie, Ed White, John
Finden, James Foster, John Hopkins, Elmer Beck, Dr. John
Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy, B. M.
Kane,
William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert
Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ
Reynolds, and Topeka Bank & Trust Company, DefendantsAppellees.
Nos. 77-1951 and 77-2045.

United States Court of Appeals,

Tenth Circuit.
Argued and Submitted Nov. 14, 1978.
Decided Jan. 26, 1979.

Fred W. Phelps, Jr. of Fred W. Phelps, Chartered, Topeka, Kan., for

plaintiff-appellant.
Leonard M. Robinson, Topeka, Kan., for defendant-appellee Bill
McCormick.
Wilburn Dillon, Jr., Topeka, Kan. (Tom L. Green, Topeka, Kan., with him
on brief), for defendants-appellees Fred Howard, Ed Ritchie and Ed
White.
L. M. Cornish, Jr., Topeka, Kan. (Henry J. Schulteis, Topeka, Kan., with
him on brief), of Glenn, Cornish & Leuenberger, Chartered, Topeka,
Kan., for defendants-appellees John Finden, James Foster, John Hopkins,
Elmer Beck, Dr. John Davis, Jr., Robert Drumm, Ralph Glenn, Joan Guy,
B. M. Kane, William Kobach, J. R. Kreiger, Kenneth Payne, Jr., Robert
Petro, Darrell Roach, Richard Roach, G. W. Snyder, Jr., Russ Reynolds,
and Topeka Bank & Trust Co.
Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

LOGAN, Circuit Judge.

These appeals arise out of a Civil Rights Act complaint filed by Linda
(Sinklear) Lessman against the Topeka Bank & Trust Company and individual
defendant appellees who include the Mayor of the City of Topeka, a Topeka
policeman Ed White and his supervisors, including the Chief of Police, Russ
Reynolds, an employee of the bank, and all of the members of the board of
directors of Topeka Bank & Trust Company. Jurisdiction is asserted under 42
U.S.C. 1983, 1985(2), (3), 1986 and 28 U.S.C. 1343(3). The trial court
dismissed the complaint upon motion of the defendants. Ms. Lessman has
appealed.

One question on appeal is whether the complaint states a cause of action under
42 U.S.C. 1983, specifically whether the actions recited, if true, show a
deprivation of a right protected by the Constitution and the laws of the United
States within the meaning of that section. Also at issue is whether the
complaint is sufficient to state a cause of action under 42 U.S.C. 1985(2) or
(3) or 1986, specifically whether she has brought herself within a protected
class.

The complaint alleged a conspiracy among all defendants to deny plaintiff

equal protection of the law and to injure her property and person. It asserted
that the defendants arranged to have White, a city police officer, arrest plaintiff
upon a warrant and complaint alleging that she had failed to pay an overtime
parking ticket. It was further alleged that White arrested and imprisoned the
plaintiff, took her to the police station, where she paid the fine for overtime
parking (which she admitted she owed); that having paid the fine plaintiff's
imprisonment was continued by informing her that she must see the defendant
Reynolds, the bank employee; that White ordered plaintiff to wait in a room
until Reynolds appeared, who told plaintiff that when she failed to respond to
his letters to her as a debtor of the bank he had prevailed upon the city's police
power to arrest and imprison her.

The reasons for the conspiracy were stated to be to instill in plaintiff a fear of
the awesome powers of "those who effect arrests and imprisonments" by
subjecting her to humiliation, embarrassment and the like, and to instill in her a
fear of those who have the power to cause others to effect arrests and
imprisonment. The reason for the wish to instill such fear was declared to be to
force the plaintiff to give the bank a preferred position in relation to plaintiff's
other creditors who did not have access to such compelling means of exacting
payments.

No specific facts were alleged with respect to any defendants other than White
and Reynolds, except that they "arranged to have the defendant, White, arrest
plaintiff," and that they conspired to deprive plaintiff of her rights.

Ruling upon motions by the defendants to dismiss, the trial court declared that
there was a bare conclusory allegation of conspiracy, with no specification,
insufficient to withstand a motion to dismiss as to the Section 1985 claim. It
said that any cause under the portion of 1985(2) following the semicolon, and
1985(3) requires a colorable claim of class-based discriminatory animus
which is not pleaded here, "nor does it appear they can fairly be so pleaded
given the facts which underlie this suit." Since a cause under 1986 depends
upon statement of valid cause of action under 1985, that claim also was ruled
out.

With respect to the 1983 claim it found the conclusory statements insufficient
to state a cause against any other than defendants White and Reynolds. As to
them, there was sufficient state action or action under color of state law, but
characterizing the claim as essentially one for false arrest or imprisonment the
judge thought the incidents alleged were not of sufficient importance to support
federal jurisdiction. Therefore, the complaint was dismissed as to all
defendants.

Upon review we must bear in mind first that this was not a ruling upon a
motion for summary judgment, but one where a complaint was dismissed for
failure to state cause of action. The allegations of the complaint must be taken
at face value and construed most favorably to the pleader. A motion to dismiss
must not be granted "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); Scheuer
v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).

Thus we must carefully analyze the complaint against the backdrop of each of
the sections under which jurisdiction was invoked, to see if it can pass the
required tests under the liberal construction rules we are bound to apply.

10

* We consider first the allegations of claims under 42 U.S.C. 1985(2),

1985(3) and 1986. Appellant's brief concedes that only the portion of 1985(2)
following the semicolon is invoked here. With respect to this and 1985(3) she
acknowledges that there must be class-based discriminatory animus. She alleges
it is present because she is a member of a class consisting of all debtors, and
that the discrimination was to give one creditor an unfair and unjust advantage

over her as a debtor.

11

Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338
(1971), discussing 1985(3), stated:

12 language requiring intent to deprive of Equal protection, or Equal privileges and

The
immunities, means that there must be some racial, or perhaps otherwise class-based,
invidiously discriminatory animus behind the conspirators' action. The conspiracy,
in other words, must aim at a deprivation of the equal enjoyment of rights secured
by law to all. (Footnotes omitted.)
13

The Supreme Court expressly declined to decide whether a conspiracy

motivated other than by racial bias would be actionable under that section. 403
U.S. at 102 n.9, 91 S.Ct. 1790. This circuit has held the same kind of classbased discriminatory animus is required under that portion of 1985(2)
following the semicolon. Smith v. Yellow Freight System, Inc., 536 F.2d 1320
(10th Cir. 1976). We have also ruled that where there is no valid claim under
1985 none can exist under 1986. Taylor v. Nichols, 558 F.2d 561, 568 (10th
Cir. 1977).

14

The circuit court cases which have recognized under 1985, classes which are
not racially based, have stayed close to the areas protected by the First
Amendment. E. g., Means v. Wilson, 522 F.2d 833 (8th Cir. 1975) (Indians
with a particular political view); Marlowe v. Fisher Body, 489 F.2d 1057 (6th
Cir. 1973) (members of Jewish faith); Cameron v. Brock, 473 F.2d 608 (6th
Cir. 1973) (supporters of a political candidate); Richardson v. Miller, 446 F.2d
1247 (3d Cir. 1971) (employees with a certain political view).

15

Debtors have not been recognized as a protected class as yet. Bankrupts have
been expressly held not to be such a class in an en banc decision of the Fifth
Circuit. McLellan v. Mississippi Power & Light Co., 545 F.2d 919 (1977).

16

Surely if we should recognize debtors as a protected class it would be the

largest in America. We do not have to make that decision, however, because the
plaintiff is not complaining about a conspiracy against all debtors, only those
debtors who owe the Topeka Bank & Trust Company, who have defaulted on
their loans, have not responded to ordinary means of pressure, and have
committed some violation of law which gives the alleged coconspirator police
officers an excuse to arrest them. That surely does not describe a discriminatory
animus against all debtors, against a type or class of debtors, or anyone other
than this particular individual. The instant case is not essentially different from

Ward v. St. Anthony Hosp., 476 F.2d 671 (10th Cir. 1973) where we held a
physician denied staff privileges at a hospital had not shown himself the object
of a class-based invidiously discriminatory animus. The complaint must allege
facts showing a conspiracy against plaintiff "because of" her membership in a
class, and that the criteria defining the class "were invidious." Harrison v.
Brooks, 519 F.2d 1358, 1360 (1st Cir. 1975).
17

The complaint was properly dismissed as to the 42 U.S.C. 1985(2), (3) and
1986 claims.II

18

We turn to the sufficiency of the allegations of the complaint to state a claim

under 42 U.S.C. 1983. Two elements are necessary for recovery under that
section.

19 the plaintiff must prove that the defendant has deprived him of a right secured
First,
by the "Constitution and laws" of the United States. Second, the plaintiff must show
that the defendant deprived him of this constitutional right "under color of any
statute, ordinance, regulation, custom, or usage, of any State or Territory." This
second element requires that the plaintiff show the defendant acted "under color of
law."
20

Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26
L.Ed.2d 142 (1970). The allegations are sufficient, at least as to policeman
White and the bank employee Reynolds, to find action under color of state law.
The thrust of 1983 is to protect against the misuse of power by officials such
as the police here. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d
492 (1961). Private individuals and entities are subject to liability under the
section. See Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d
338 (1971); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). In fact the trial court found there was action
under color of state law. The dispute, however, is over whether defendant was
deprived of a right secured by the Constitution and laws of the United States
within the meaning of 1983.

21

While plaintiff claims the defendants intended to injure her in her property and
in her person, and to force her to prefer the bank over her other creditors, there
is no allegation that she was unlawfully deprived of her money or property. She
paid a fine on the parking ticket for which she was arrested; but admits it was
owed. There is no statement in the complaint that she did in fact prefer the bank
over her other creditors because of this action. The complaint does allege that
she was arrested and taken to the police station, and after paying her fine she
was not released until she talked to the bank officer. Thus her complaint states a

claim for false arrest and false imprisonment under color of state law. We are
required to consider whether that claim is within the protection of 1983.
22

Certainly the concept of "liberty" guaranteed by the Fourteenth Amendment

denotes freedom from bodily restraint. Meyer v. Nebraska, 262 U.S. 390, 399,
43 S.Ct. 625, 67 L.Ed. 1042 (1923). Perhaps, however, not all unlawful
deprivations of liberty were intended to be protected under 1983. In Paul v.
Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), involving
defamation, whereby local police publicly identified the plaintiff as a shoplifter,
it was held this cause was not within the scope of 1983. The court noted that
the Civil Rights Act was not intended to create a body of general federal tort
law, and "the procedural guarantees of the Due Process Clause cannot be the
source for such law." 424 U.S. at 701, 96 S.Ct. at 1160.

23

Nevertheless, in numerous instances the courts have held that false arrest and
false imprisonment give rise to claims under 1983. In most of these cases
there were aggravated circumstances such as assaults, harassment or unlawful
searches. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961),
for example, there was an unlawful arrest, harassment, illegal search and
holding of the plaintiff for about 10 hours.

24

There have been a number of cases in the Tenth Circuit. Stringer v. Dilger, 313
F.2d 536 (10th Cir. 1963) involved an illegal arrest, excessive force, seizure of
property, denial of bail and a compelled guilty plea. In Marland v. Heyse, 315
F.2d 312 (10th Cir. 1963), plaintiff was arrested on three separate occasions,
held at the police headquarters for five hours on the first, two hours on the
second and overnight the third time. The court held that a jury question was
presented as to whether the conduct of the police officers "on the different
occasions" was so arbitrary, unreasonable and without probable cause as to
subject plaintiff to a deprivation of rights under the Constitution. In Martin v.
Duffie, 463 F.2d 464 (10th Cir. 1972), a complaint was held to state a cause of
action against police officers where there was arrest without a warrant and the
police department did not show probable cause. But in that case while being
questioned, plaintiff was struck on the head with such severity that he suffered
a brain injury which required immediate surgery. Also the arresting officers had
made three separate visits to plaintiff's home to search (apparently with
plaintiff's consent), none of which were productive.

25

There are, however, cases which apparently involved no violence, unlawful

searches or repeated harassment. We found a cause was stated under 1983
when state officials were alleged to have abused their extradition power by
turning over the plaintiff to another state without affording him the hearing

required by state statutes. Sanders v. Conine, 506 F.2d 530 (10th Cir. 1974).
Also while a defendant's verdict was upheld, the court in Van Camp v. Gray,
440 F.2d 777 (10th Cir. 1971), appears to assume allegations of an unlawful
arrest, without violence or complicating facts, stated a case for the jury.
26

Other circuits also have cases recognizing 1983 jurisdiction where there was
little more than an unlawful arrest. See Duriso v. K-Mart No. 4195, 559 F.2d
1274 (5th Cir. 1977); Beightol v. Kunowski, 486 F.2d 293 (3d Cir. 1973);
Giordano v. Lee, 434 F.2d 1227 (8th Cir. 1970); Joseph v. Rowlen, 402 F.2d
367 (7th Cir. 1968) (two hours detention); Nesmith v. Alford, 318 F.2d 110
(5th Cir. 1963) (four or five hours detention); Cf. Cohen v. Norris, 300 F.2d 24,
30-31 (9th Cir. 1962).

27

We refused to find a cause of action under 1983 in a case where a student

being ticketed for a traffic violation attempted to drive his car away and refused
to sign a ticket. He was taken into custody, handcuffed, transported ten miles to
a Justice of the Peace, not allowed to make bond on an American Automobile
Association bond card, and kept in a cell for a period in excess of one hour. The
court stated that "in the final analysis this incident falls short, not only because
the officers acted in accordance with local law requiring that a violator be
arrested when he fails to sign the ticket, but also because the case is
insubstantial." Wells v. Ward, 470 F.2d 1185, 1189 (10th Cir. 1972).

28

Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977) involved a case of mistaken
identity. Plaintiff was arrested and kept either in jail or a state mental hospital
for 33 days before it was established that police had in fact arrested the wrong
person. The key question in the case was whether the investigators of a
prosecutor were entitled to the prosecutor's immunity. The court held that they
were under the circumstances of the case. But in dictum it was stated that a
plaintiff must also demonstrate a violation of federal constitutional rights; that
while the slightest interference with personal liberty would constitute false
imprisonment under state law, it does not follow that all such invasions
"however trivial or frivolous" are sufficient to invoke a remedy under the Civil
Rights Act. We do not read that dictum to mean that false imprisonment for 33
days would be an insubstantial, trivial or frivolous deprivation of personal
liberty.

29

The court below treated the arrest as legal, since there was a valid outstanding
warrant against the plaintiff on the overtime parking violation. It viewed the
deprivation of liberty as being only for a brief period, i. e., that time after the
plaintiff had paid her fine and until the bank officer interrogated her. The court
also noted that a state court action had been commenced involving substantially

the same allegations. It thought these factors indicated an insubstantial case.

We do not take the same view.
30

The complaint does not state how much time elapsed between the payment of
the fine and the arrival of the bank officer. If it had been a long period perhaps
plaintiff would have so alleged in her complaint. But that does not necessarily
follow. Further, we do not consider the fact the arrest was made upon a valid
warrant necessarily means that the time of the false imprisonment begins only
after the fine was paid. The complaint alleged that the purpose of the arrest was
in aid of the bank's debt collection process. It would be relevant to know
whether the Topeka police, routinely or even occasionally, go to a person's
home to make an arrest upon a violation for overtime parking. If this is never
done unless there is a large accumulation of tickets, then although the warrant
would be valid, it could still be an abuse of power. In Pierson v. Ray, 386 U.S.
547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), white and black clergymen were
arrested and detained for a few hours for attempting to use a segregated rest
room at a Mississippi bus station. The court held that the arresting officers
would not be liable under 1983 if they acted in good faith to arrest under a
statute they thought was valid. But it said the officers did not defend on that
basis, and the petitioners were entitled to show the officers were not acting in
such good faith belief in making the arrest. It remanded for a new trial on the
1983 claim. We read this case as support for the proposition that an arrest
which might be lawful on its face can be an abuse of power, condemned by the
Civil Rights Act, if done for an improper purpose.

31

We must take the allegations of the complaint in the instant case as true when
reviewing the grant of a motion to dismiss. This is not a case where a
policeman acted with excessive zeal in a legitimate arrest situation, as in Wells
v. Ward, supra, or where there was an honest mistake of identity, as in Atkins
v. Lanning, supra. It is a case of an arrest, not to collect on the overtime
parking ticket, but to give improper aid to the bank. This may be close to the
line of being an insubstantial deprivation of liberty, but without the
development of facts we cannot say that it is, at least as to White and Reynolds.

32

All that is alleged against the defendants other than White and Reynolds is that
they conspired together and caused the arrest and detention. No specific facts
are set out connecting them to the arrest. Even so we think there is sufficient
here to pass the applicable liberal construction test. Specific facts are stated
with respect to the officer forcing plaintiff to stay at police headquarters until
the bank employee arrived. It is reasonable to inquire whether other bank
officers or directors knew of and approved this means of intimidation. It is also
a reasonable inquiry whether Reynolds contacted only Officer White or whether

he may have called someone else in the police hierarchy who relayed the
request to the arresting officer.
33

In many cases of conspiracy essential information can only be produced

through discovery, and the parties should not be thrown out of court before
being given an opportunity through that process to ascertain whether the
linkage they think may exist actually does. Considering a somewhat analogous
complaint under the Railway Labor Act the Supreme Court said:

34 respondents also argue that the complaint failed to set forth specific facts to
The
support its general allegations of discrimination and that its dismissal is therefore
proper. The decisive answer to this is that the Federal Rules of Civil Procedure do
not require a claimant to set out in detail the facts upon which he bases his claim. To
the contrary, all the Rules require is "a short and plain statement of the claim" that
will give the defendant fair notice of what the plaintiff's claim is and the grounds
upon which it rests. The illustrative forms appended to the Rules plainly demonstrate
this. Such simplified "notice pleading" is made possible by the liberal opportunity
for discovery and the other pretrial procedures established by the Rules to disclose
more precisely the basis of both claim and defense and to define more narrowly the
disputed facts and issues. Following the simple guide of Rule 8(f) that "all pleadings
shall be so construed as to do substantial justice," we have no doubt that petitioners'
complaint adequately set forth a claim and gave the respondents fair notice of its
basis. The Federal Rules reject the approach that pleading is a game of skill in which
one misstep by counsel may be decisive to the outcome and accept the principle that
the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v.
Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745. (Footnotes
omitted.)
35

Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957).
The Supreme Court has indicated the same position should be taken as to
1983 complaints. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974).

36

It seems unlikely to us that any connection can be shown to keep the mayor in
this action. The brief indicates the mayor was added because he was the
supervisor of the police. The same may be said as to other defendants. The
doctrine of Respondeat superior does not apply to these cases. Personal
participation will have to be demonstrated to keep them in the case. It may well
be that at some stage a motion for summary judgment may be appropriate to let
some defendants out. But we hold the complaint is sufficient to withstand a
motion to dismiss as to the 1983 claims.

37

Thus we affirm the grant of the motion to dismiss the complaint as to the
counts involving 1985(2), (3), and 1986 as to all defendants, but not with
respect to the 1983 claims. Each party is to bear its own costs of this appeal.
The case is remanded for proceedings consistent with this opinion.