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_________________________
No. 95-2233
Plaintiffs, Appellants,
v.
Defendants, Appellees.
_________________________
_________________________
Before
Circuit Judges.
______________
_________________________
_________________________
the
U.S.C.
1985(3) (1994).
required
Klan Act, 42
to ground a private
applies to
the Ku Klux
right of action
public officials in
the same way as it applies to all other conspiracies; and (2) the
requirement
defined
is not
class
satisfied
appears.
where, as
Accordingly,
here, no
we
sufficiently
affirm the
district
I.
I.
BACKGROUND
BACKGROUND
Whether or not it
this
case
national
bears
witness
that
local
politics,
plaintiff-appellant
Alan
Aulson
served
is local,
no less
than
as
selectman
in
Georgetown, Massachusetts.
defendants
(a
officeholders)
politicians"
cadre
who more
charges
opposition:
elected
or
and
appointed
an incumbent group
less
run things
in
who oppose
complaint
of
are members of
contrast, he is a
candidates
that
the members
the politics
Aulson
paid
municipal
of "old guard
the town.
which supports
of the
`old guard.'"
price
stiff
In
for
The
his
against him
conduct,
U.S.C.
he asserts, gives
sham prosecutions.
rise to a
1985(3).
cause of
This course
of
action under 42
Aulson originally
district
12(b)(6).
Despite the
R. Civ. P.
II.
II.
a state venue.1
ANALYSIS
ANALYSIS
failure to state an
decision de
novo, accepting
indulging
See
___
all
reasonable inferences
in the
averments and
plaintiff's favor.
164 (1993);
52
as true
(1st
Correa-Martinez v. Arrillaga-Belendez,
_______________
__________________
Cir.
1990).
We
hasten
to add,
163,
however,
that this
the
plaintiff's
assertions,
invective
unsupportable
circumlocutions,
F.2d at 52;
889
16 (1st
alleged,
line,
and
sinker;
conclusions,
Dartmouth Review v.
________________
Cir. 1989).
It is
bald
periphrastic
Martinez, 903
________
F.2d 13,
hook,
Dartmouth Coll.,
_______________
only when
the facts
an order of
A
A
Section
1985(3)
proscribes
certain
enumerated
____________________
Aulson's presence
the legal
issues
conspiracies.2
must
allege
To
the
conspiratorial
state a
claim under
existence
of
(1)
1985(3)
a plaintiff
conspiracy,
(2)
or class of persons,
equal
person or property,
or (b) a
deprivation of a
constitutionally
protected right or
privilege.
See Griffin v.
___ _______
Breckenridge, 403
____________
U.S.
gloss
88, 102
on
(1971).
these
requirement.
It
four
In
Griffin, the
_______
elements,
construed the
Supreme Court
effectively
adding
statute's references
placed a
fifth
to "equal
to
conspiratorial
conduct of
"some
or
racial,
perhaps
discriminatory animus."
which
he complains
otherwise
is propelled
class-based,
by
invidiously
Id.
___
B
B
This
added
requirement
seeks
as
an
attempted embrace of
strives first
looms
to detour around
insurmountable
1985(3).
in two different
the obstacle,
He
ways:
he
and, failing,
he
____________________
2The statute
or class
equal
of persons of the
privileges and
U.S.C.
immunities under
the laws
. .
laws, or of
. ."
42
1985(3).
1.
1.
Public/Private Conspiracies.
Public/Private Conspiracies.
____________________________
The
plaintiff's
that
the
applies
requirement
only
to
of
wholly
a class-based
private
discriminatory
conspiracies
(that
animus
is,
conspiracies
such),
that
do not
animus in this
involve
public
officials acting
action (which
as
prove a class-based
is directed at
a conspiracy
that
This gambit
has been
tried in several
other circuits
1096,
denied,
______
1102 (10th
Cir.
1994), cert.
_____
115 S.
Ct.
2577
32
F.2d
Pawling,
_______
989,
994 (6th
18 F.3d 188,
Cir.
1994);
1992),
Gagliardi
_________
v. Village of
___________
1994); Burrell
_______
970 F.2d
785, 794
v. Board of
________
(11th Cir.
F.2d 683,
occasions required
the gambit,
we have on
at least
two
comment) that
were
alleged
to
conspiracies there
Agosto, 75
______
be
active
at issue.
F.3d 23, 34
participants
the
See Romero-Barcelo
___ ______________
(1st Cir.
in
1996); Daley v.
_____
Cir. 1984).
particular
v. Hernandez__________
Town of New
____________
down which the plaintiff beckons not only would set us apart from
our sister circuits but also would undermine our own precedents.
1985(3) affords
conspiracies.
Griffin
_______
neither
supports
nor
suggests
the
is not the
guise
of
invitation
interpretation.
Thus, we
to create by judicial
decline
the
plaintiff's
of
1985(3)
To the
extent that
we
have
not
explicit, we
previously
made
respect
to
conspiracies
actors,
or
both,
complained of
the
scope
of
the
requirement
involving
plaintiffs
public
must
allege
1985(3) in
officials,
that
the
private
conduct
based animus.
2.
2.
Cognizable Classes.
Cognizable Classes.
__________________
to surmount the
obstacle instead
The
of skirting it.
has
alleged
as much.
His
contention
He
contends
does not
withstand the
mildest scrutiny.
The complaint
In
regard to
the
class-based animus
requirement, however,
it
states nothing more than that Alan Aulson and a named confederate
(not
party to
the suit)
are
"representative members"
of a
opposed
to the
politics
of
the
"old
guard,"
and
that
the
defendants
are members
predicate,
the
of
the "old
plaintiff posits
that
guard."
the
On
ad hoc
this
skimpy
"opposition
__ ___
group"
is a
against it
class,
and that
is class-based
the
defendants' supposed
within the
We have
must allege
See Hahn
___ ____
v. Sargent,
_______
(1st Cir.
Clinic,
______
506 U.S.
the
Griffin gloss
_______
facts showing
that (1)
263, 269
the
are invidious.
1975), cert.
_____
cf. Bray
___ ____
to
1975);
that
We do not agree.
1360
meaning ascribed to
previously interpreted
animus
v.
F.2d 1358,
(1993) (holding
that
women seeking
abortions
are not
a class
within the
(holding
that
a group
Scott, 463
_____
defined
not
criteria
decided
that qualify
protection of
the
whether
the
classes
1985(3).
See Scott,
___ _____
whether
1985(3)
question of
criteria
1985(3)).
political
1985(3));
U.S. 825,
by economic
has
confines of
does not
differences are
that
837 (1983)
they define
invidious
for
the
covers
more than
racially
Although
institutional voice
Nor need
other federal
we have
to the
we do so today.
courts
have
divided on
occasion to lend
Whether or not
this
our
surrounds it.
covered by
The notion of a
and
distinct components.
substantive
gender
or
The
first component
characteristic defining
political
affiliation.
the
focuses
class, e.g.,
While
it
is
on the
race
or
universally
acknowledged
that
racial
classes are
because
classes are
reference
invidious
method
treatment.
See, e.g.,
___ ____
political
for
Perez
_____
v.
aff'd, 898
_____
persons
to
1985(3)
comprises
an
differential
706 F.2d
Cucci, 725
_____
such consensus
pale of
characteristics
subjecting
Keating v. Carey,
_______
_____
ambit of
to
the
political
within
F. Supp.
209,
252 (D.N.J.
Cir. 1983)
(same);
1989) (same),
F.2d
1359,
1366, 67
(7th
Cir. 1985)
(holding
that political
766
F.2d 155,
Rossello,
________
163
(4th Cir.
1985) (same);
Morales-Narv ez v.
_______________
(same), aff'd on
_____ __
The second
whether there is
any identifiable
not on the
class at all.
We
emphasize
that
group
this inquiry
is distinct
denominated by
a particular
from discrimination by
basis
for
from the
1985(3).
discrimination,
the
question of
whether a
characteristic is
sheltered
No matter
allegation
what the
of
alleged
"class-based
class
against
whom
the
the prophylaxis of
defendants
can
have
discriminated.
classes enjoy
Though
there
is no
comprehensive
set
of rules
for
For
than
just a
allegedly
group of
persons who
tortious behavior.
the basis of
If
bear the
brunt of
a class could
be defined from
may
be the
precise
meaning of
individuals who
in
conduct
defendant disfavors.
tort
plaintiffs
would
causes of action
under
share a
that
desire to
the
1985(3)
Otherwise, innumerable
be
able
to form
of class-
Whatever
the same
to
assert
1985(3) by
simply
Justice
engage in the
interfered with.
Our
defined
solely
own case
on the
law
confirms
basis of
harm
that
a class
inflicted.
cannot
be
In Creative
________
denied,
______
459 U.S.
989 (1982),
we considered
discriminated against
of rejecting
1985(3) claim
a proposed subdivision.
We held that
even if the
1985(3) claim
undefined group
of
people
with unknown
characteristics."
of
this
group
disadvantaged
complaint
Id. at
___
had
by
in
income,
834.
racial,
common
was
the defendants'
"failed to
identify
political and
that
actions.
any definite
they
social
the members
stood
to
be
Consequently,
the
class which
would
Id.
___
that a
class, to
be cognizable,
"something
conduct
at
269.
more than
that the
In
characteristic must
opposed
. . .
words, the
line
drawn by
groups.
by reference
other
and identifiable
must be identifiable
This means,
to "non-white," see,
___
to engage in
the substantive
distinct, separate,
e.g., Stevens
____ _______
to
v. Tillman,
_______
as
568 F.
Supp. 289, 293 (N.D. Ill. 1983) (holding that whites constitute a
see,
___
1985(3)), "female"
53 F.3d 428,
10
as opposed to "male,"
(holding
that
women
constitute
which
we do not opine
protected
purposes of
it is comprised
of a
matter on
as opposed to
(holding that
hold, therefore,
1985(3)'s
under
"registered Republicans"
We
class
that
a class
1985(3)).
is cognizable
for
group.
For
this purpose,
of
criteria who is
besides
a member of the
or set
is not.
See
___
1978) (rejecting
F.2d 1228,
objectively identified
reasonable person
to this class"
by an
"readily recognizable" in
observer"); Bricker v.
_______
1972) (noting
order to
that a
could be
Crane, 468
_____
class must
be
scope of
purposes
plaintiff
of
1985(3)'s
class-based animus
only as
persons
himself
and
members."
one
As far
other
former
as anybody
persons who
of the old
selectmen
can
requirement.
The
support other
as
tell, aside
"representative
from these
two
11
"members" this
It might include
might include
it might
given time.
an
identifiable
segment of
class within
1985(3)
opposition
F.2d
1985(3).
to any
a cognizable
opponent
582
by reference
the purview of
the community
of
the
defendants
and
was
extremely
vocal in
his
at
317
(holding
that
complaint
which
alleged
discrimination
philosophical
describe a
against
opposition to"
The lack
of
persons
municipal
"cognizable class"
this
a class
"in political
commissioners
did
to state
and
not
1985(3)).3
of distinctiveness is
especially striking in
with
rather than
with
____________________
608, 610
covered by
(holding that
1985(3)).
473
"clearly
We leave
12
members
of the
class since
there is
no way
be a
few of
incumbents, or
and
the incumbents,
most
of the
their adherents.
To put
for
class.
an objective
They could
incumbents, all
the
plaintiff's
guard)
proposed class
is, like
beholder.
and
the antagonist
class (the
beauty, almost
exclusively in
the eye
old
of the
readily identifiable
line.
Objectively speaking,
views or
"politics of
practices
is comprised of some
of some
a third party
other
(unknown) political
(unknown) persons
who
have
We have said
enough on
this score.
By not
alleging
discrimination against a
under
1985(3).
at 317; see also Wilhelm v. Continental Title Co., 720 F.2d 1173,
___ ____ _______
_____________________
13
persons
terminology in
denied,
______
1985(3)"), cert.
_____
C
C
We must
attend to a
complaint
survived
defendants.
motion without
dispositive
The
defendants' motion
court
prejudice
motion
district
to dismiss
on
court
for leave
point, the
asked
the
district
At one
plaintiff
denied
the
last detail.
to
to
amend
renewal if
behalf
of
subsequently
the
The court
the
case
existing
granted
the
the
to amend.
On
opportunity to
replead.
We rebuff
this suggestion
First,
reply
brief, is
ordinarily denied
as a
matter of
course, see
___
Sandstrom v. ChemLawn Corp., 904 F.2d 83, 87 (1st Cir. 1990), and
_________
______________
Second, to
the extent the request for leave to amend is before this court at
all,
the
plaintiff
argumentation in
abandoned.
has
advanced
absolutely
so we deem it
no
developed
to have been
1, 17 (1st Cir.),
_____________
cert.
_____
_______
(1990).
Third,
14
step
class
for purposes of
1985(3).
adding defendants
Thus,
did not
err in neglecting to
v.
See Foman
___ _____
59.
Relatedly,
something other
if
what the
than adding
plaintiff
now
defendants, he has
has
in mind
not so
is
stated,
that he
state
an actionable
circumstances, we
litigation
claim under
Mindful
the plaintiff to
of these
string this
can
resuscitate a case
See
___
Correa-Martinez,
_______________
"needlessly
1985(3).
that, by
903
F.2d
prolong[ing] matters"
all appearances,
at
59
when "an
is terminal.
(counselling
against
amendment would
be
III.
III.
CONCLUSION
CONCLUSION
We
need go
no further.
simultaneously granting
Because
motion to dismiss
be
Affirmed.
Affirmed.
________
15
the district
court
without