Petition — Wilson v. Biccum

Supreme Court brief1977

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

phe 76°1746

MARY ELIZABEsH WILSON,

Plaintiff-Petitioner,

versus

ROBERT W. BICCUM, et al,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

WM. ROBERTS WILSON, JR.

ATTORNEY FOR

PLAINTIFF-PETITIONER

P. O. Box 1507

Pascagoula, Mississippi 39567

ORAL ARGUMENT REQUESTED

SCOFIELOS’ QUALITY PRINTERS, P O BOX 63006,N 0. LA 70163 604/8622.161)

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TABLE OF CONTENTS

Page

Table Of CaSOS .....ccccccereeeeeennneeeseeennnreeees i

Reference and citation to official and unof-

ficial reports of the opinions delivered in

COUTTS DOLOW .... cc cece c rere eee eeeennnenenneeeeee 1

Jurisdictional statement and relevant dates

Of FULINGS . 0... cee eee cere renee enenneeenenneeneee 1

Questions presented for review ......eereeereeeees 2

Statutes involved ......... cece eee renee eeeeeeeeee 3

Statement of the CASE ....... cece eeeeeeeeeeeeeerees 5

ATGuMent ...... cc ereceeeeeereeeneneneeneeeaneneess 9

CONCIUBION oo... ccc cece cece eee eeeeeeeeenneenneeeees 58

APPENDIX

Complaint ......:.ceeceeeereeeenenneneeeeeeneaeess la

District Court’s Opimion ..... cc ccree eee ee eeeees 25a

U. 8S. Court of Appeals’ Opinion .......eerreeeees 32a

Form Letter Denying Petition for Rehearing .... 33a

TABLE OF CASES

Ames v. Vavreck, (1973 DC Minn) 356 F Supp

rrr PF errrrrrrTrrii Ti tre ee 55

Adickes v. Kress, 398 US 144 (1970) ....-eeeeeeees 22

Barbier v. Connolly, 113 US 27, 31 (1885) ......-.. 15

Beechley v. Mulville, (1897) 102 lowa 602, 70

NW 107, 71 NW 428 on. cece cece cece e renee nennee 45

Bliss v. Southern Pacific Company, (Ore) 321

BP Od BBA nnn ccccccccccvcvcccccccvcceenesvvesecess 42

TABLE OF CASES (Continued)

Page

Blumenthal v. U. S., 332 US 539, 557, 68 SC 248,

O2 L, Bd 154 (1047) ....cccccseccvccvvvevvevcesecs 32

Boddie v. Connecticut, 461 US 371 (1971) ......... 15

Bricker v. Sceva Speare Memorial! Hospital,

339 F Supp 234 (1972) 0... .. ccc ceeeee eee ennnees 54

Burchette v. Bower, 355 F Supp 1278 (DC Ariz

IOTE) nccccccccccvcvccvcccccccscccccsscsccesevecess 54

Bush Construction Company v. Walters, 179

Be OE IBD oo cccccvcscdecccevecceccocgeseesaseqnes 52

Cameron v. Brock, 473 F 2d BOB... ccc cece eens 35

Campbell v. Beto, (5 CCA 1970) 460 F 2d 765 _ ..... 15

Chambers v. Baltimore & Ohio Railway, 207

US 148, 148 (1007) ...cccccccccccccvccccsscvvvvces 15

C. I. T. Corporation v. Turner, 157 So 2d 648 ..... 52

City of Boston v. Simmons, (1890) 150 Mass.

481, BB OTE BAD nncccccecccceccccccovvpiccesovcces 45

Continental Turpentine & Rosin Company v.

Gulf Naval Stores, Company, 141S0 2d200 ..... 52

Delli Paoli v. United States, 352 U.S. 232, 236,

77 SC 219, 1 L, Ed 274 (1957) nce ccc cece cece eens 32

Delz v. Winfree, (1891) 80 Tex 400, 16SWi111 ..... 45

Frazier v. East Baton Rouge Schoo! Board,

363 F 2d 861 (5 CCA 1966) on... cece cece cere eens 54

Frey & Sons, Inc. v. Cudahy Packing Co., 256

CIS BOD, BAFBED o avec scasccsccvicccvvcccseneownes 33

Garraway v. Retail Credit, 240 Miss. 230, 126

So 2d 271 (1961) GARRAWAY I .........645. 22,50

iii

TABLE OF CASES (Continued)

Page

Garraway v. Retail Credit, 141 So 2d 727

EE 8,28,47,51

Griffin v. Breckinridge, 403 U.S. 88, 102-03

i ae erithiseceeweecbcneeccccanes 9,24,25,35,44

Grisom v. Logan, DC Calif 1971, 334 F Supp

tiie iteheidecsesdheeseeese sees cae as 44

SE WH, Ecc ccc ccc cccrecdevceddcceces 44

Huey v. Barloga, DC Ill. 1967, 277 F Supp 864 .... 44

Hudgens v. Chamberlane, (1911) 161 Cal. 710,

Leis CCl se ivesdandcccedevegdsecedcses 45

Hutton v. Waters, (1915) 132 Tenn. 527, 179SW

i ccc cs whvedebbeedadecdcdcccciveccces 45

James v. Evans, 3 CCA (1906), 149 F 136,140 ..... 45

Johnson v. Bagby, 171 So 2d 327 ................. 51

Kauffman v. Moss, 420 F 2d 1270(3CCA 1969) ..... 54

Lynch v. Household Finance Corp., (1972) 405

U.S. 538, 31 L Ed 2d 424, 92 S Ct. 1113, reh.

den. 406 U.S. 911, 31 L Ed 2d 822, 92 S Ct.

UTP EEMCERE ER ES SGE6e.cbedccescescocceccces 31

Maclaskey v. Mecartney, 324 Ill. App. 498, 58

IE Sa b.s du binba.c tive dee ese cesces ces 34,35

Mary Wilson v. Retail Credit Company, 430

F 2d 1053 (5 CCA 1971) WILSON! ........... 47,48

Mary Wilson v. Retail Credit Company, 474

F 2d 1260 WILSON II ............0.c ce eeeeees 47,48

May v. Santa Fe Trail Transportation Co.,

ee inns occ eeccedncscccccecene 42

TABLE OF CASES (Continued)

Page

McLellan v. Mississiipi Power Company, 526

F 2d 870; Reh. grntd, r’vrsing 545 F 2d 919(5

ND Ory fre ee ee = ee ae 9,10,11

Miles v. Armstrong, (CA II] 1953) 207 F 2d 824 .. 44,57

Mississippi Power and Light Company v.

Town of Coldwater, 234 Miss. 615, 636, 106

DO. BG GEO CHD cb vccccvacccccdévetens chutes 19

Mulligan v. Schlachter, (1968) CCA 6, 389 F 2d

DE cc cdnnencdddccnussdénceskeebaashabeieetnaeanent 54

Nay v. California, (1971) CCA 9, 439 F 2d 1285,

SD ctencdsscncacksadesveteaoeneestabbenis bn00b56 55

Nelson Radio & Supply Co., Inc. v. Motorola

Inc., (5 CCA 1952) 200 F 2d 911 ...........-- eee 42

Northern Oil Co. v. Socony Mobil Oil Co., 368

PP OD en OE ED vc be ccteecnccncscccccocsce 54

Providence Journal Co. v. McCoy, (DC R.I.

1950) 94 F Supp 186, aff. 190 F 2d 760, cert.

den. 72 SC 200, 342 U.S. 894, 96 L Ed 669 ........ 44

Robertson v. Parks, (1892)76Md118,24A4l11 ..... 45

Sanders v. State, 242 So 2d 412 ..............0005- 52

Smith v. Ross, 482 F 2d 33 (CCA €) ..........0005: 32

Southern Christian Leadership Conference,

Inc. v. The A. G. Corporation, Miss., 241

es GOD cada onade ecbadvancnesbbenes cen 19,32

U. S. v. Andergom, 461 F Bd GB... cc ccc cc cccvecses 16

U. S. v. Brooks, 473 F 2d 817 (CCA Q) ..........-.+. 32

U. S. v. Jacobo-Gil, 474F 2d1213(1973CCA9) .... 32

TABLE OF CASES (Continued)

Page

U. S. v. Johnson, 164F 2d 42, cert. den. 332 U.S.

852, 9 L Ed 421, 68 SC 355, reh. den. 33 U.S.

834, 10 L Ed 1118, 68 SC 457 .......... cee eeeeee

Van Horn v. Van Horn, (1894) 56 NJ L. 318, 26

BAG centOekbe Sch cccShTinicuce estdsedagececzces 45

Westberry v. Gilman Paper Company, 60 FRD

De nackddvesteasded db ec¥incdusdssctacsenceqeces 9,10

White v. White, (1907) 132 Wis. 121, 111 NW

ET dh nkdusdadioes haves esissttbucesconsseceduces 45

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

MARY ELIZABETH WILSON,

Plaintiff-Petitioner,

versus

ROBERT W. BICCUM, et al,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINION BELOW

(a) The opinion of the United States Court of

Appeals for the Fifth Circuit is reported as Mary

Elizabeth Wilson vs. Robert W. Biccum, et al, 546 F 2d

676 (5 CCA 1977), affirming the opinion of the United

States District Court for the Southern District of Mis-

sissippi, is an unreported opinion. Both opinions are

set forth in the Appendix.

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit became final on March 18, 1977, upon Petition

for Rehearing, the original opinion having been en-

tered on February 3, 1977. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. Whether an individual citizen has a civil right to

resort to the courts in a civil suit.

2. Whether the plaintiff can maintain a suit under the

Civil Rights Acts for damages against individuals

who successfully conspired to deprive the plaintiff of

her ability and consequently her right to sue a credit

reporting company.

3. Whether the plaintiff can maintain a civil rights

action under the Civil Rights Acts where most of the

defendants were employees of another defendant

where all of the conspirators acted for the individual,

separate and distinct benefit of themselves, separate-

ly.

4. Whether a suit for a conspiracy which damages an

individual may be brought before damage occurs.

5. Whether the doctrine of collateral estoppel applies

to bar such an action against the credit reporting com-

pany and/or its employees who conspired each in-

dividually for each individual's separate benefit

where the plaintiff has previously sued the credit

reporting company alone in its individual corporate

capacity for a libel.

6. Whether the defendants were acting under color of

law within the terms of 42 USC §1983.

7. Whether 42 USC §1986 applies to the individual

defendants in this case and whether the statute of

limitations in said statute commences to run at the

time the damages have been finalized (in this in-

stance the date that the Fifth Circuit affirmed the deci-

sion of the District Court to deny the plaintiff the direct

cause of action against the Retail Credit Company on

February 20, 1972.)

8. Whether the pendant state claim of conspiracy is

subject to being dismissed because of any of the above.

STATUTES INVOLVED

Title 42, United States Code §1983

§1983. Civil action for deprivation of rights

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory, subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress. (Act Apr. 20, 1871, c. 22,

§ 1, 17 Stat. 13.)

Title 42, Unite” States Code §1985

§1985. Conspi. to interfere with civil rights

Third: If two or more persons in any State or

Territory conspire, or go in disguise on the

highway or on the premises of another, for the

purpose of depriving, either directly or in-

directly, any person or class of persons of the

equal protection of the laws, or of equal

privileges and immunities under the laws, or

for the purpose of preventing or hindering the

constituted authorities of any State or

Territory from giving or securing to all per-

sons with such State or Territory the equal

protection of the laws, or if two or more per-

sons conspire to prevent by force, intimida-

tion, or threat, any citizen who is lawfully

entitled to vote, from giving his support or ad-

vocacy in a legal manner, toward or in favor of

the election of any lawfully qualified person

as an elector for President or Vice-President,

or as a member of Congress of the United

States; or to injure any citizen in person or

property on account of such support or ad-

vocacy; in any case of conspiracy set forth in

this section, if one or more persons engaged

therein do, or cause to be done, any act in fur-

therance of the object of such conspiracy,

whereby another is injured in his person or

property, or deprived of having and exer-

cising any right of privilege of a citizen of the

United States, the party so injured or de-

prived may have an action for the recovery of

damages, occasioned by such injury or

deprivation, against any one or more of the

conspirators. (Act July 31, 1861, c. 33, 12 Stat.

284; April 20, 1871, c. 22, §2, 17 Stat. 13.)

MISSISSIPPI STATUTE OF LIMITATIONS

Title 15 Chapter 1, §49 Mississippi Code of 1972. AC-

TIONS TO BE BROUGHT IN SIX YEARS

All actions for which no other period of limita-

tion is prescribed shall be commenced within

six years next after the cause of action ac-

crued, and not after.

SOURCES: CODES, 1880 §2669; 1892 §2737;

1906 §3097; Hemingway's 1917, §2461; 1930

§2292; 1941, as amended §722.

STATEMENT OF THE CASE

Introduction

The plaintiff brought this action in the United States

District Court for the Southern District of Mississippi

alleging that she had been damaged by a conspiracy.

The aim of the conspirators was to deprive her of

several civil rights including the right to sue a credit

reporting company for its libelous credit reports on

her. Plaintiff claims that the damages dealt her by the

defendants’ conspiracy manifested itself in final form

on February 20, 1972 when this Court affirmed the Dis-

trict Court which held that there was no remedy for her

at common law for the libel since the statute of

limitations had run.

Within a year, and on December 18, 1972, the plaintiff

filed this suit.alleging four causes of actions arising

out of a conspiratorial course of conduct undertaken

by the various named defendants. Plaintiff brought

her suit for conspiracy against the defendants under

42 USC §1983, §1985(3); §1986, and the common law of

the State of Mississippi. The first three causes of ac-

tion for conspiracy are brought under the Civil Rights

Acts and the fourth cause of action is a pendant claim

brought under the common law of the State of Missis-

sippi.

The plaintiff based her federal causes of action, and

the pendant claim as well, on the damage done her by

the conspirators in depriving her of (1) equal protec-

tion of the laws, (2) equal privileges and immunities

under the law, and; (3) other federally protected rights

including the right to contract to pursue a chosen

profession, and finally, and most important, the con-

spiracy deprived her of the right to maintain an action

in court and the fundamental right of citizenship to

resort to the courts for protection.

Plaintiff set out, with specificity, several detailed

factual occurrences and overt acts in furtherance of

the conspiracy, and alleged numerous others, in-

cluding the various separate acts of the defendants in

filing affidavits and court pleadings, in other suits, to

further the aim of the conspiracy which was to deprive

her of her day in court.

Plaintiff does not sue for defamation in this suit, nor

does plaintiff sue for any of the damage caused her by

the direct and proximate consequences of the out-

landish credit reports issued by Retail Credit Com-

pany on her in 1961, 1963 and 1964.

In this suit, plaintiff sues for the damage done her by

the conspiracy as is more completely discussed in the

ensuing brief.

Defendants answered plaintiff's first amended com-

plaint and the issue was joined on the allegations of

conspiracy and the defenses as set forth in the two

respective pleadings.

The defendants answered with eight separate

defenses which are enumerated as follows: (1) that the

complaint failed to state a claim; (2) the defendants

denied a conspiracy; (3) that the statute of limitations

of the State of Mississippi had run; (4) that the one year

limitations contained in 42 USC §1986 had run; (5) good

faith and privileged communications; (6) collateral

estoppel; (7) laches; (8) Stare Decisis; (9) injunction

and estoppel.

Several briefs were filed with the District Court by

the plaintiff and by the defendants and the plaintiff

offered evidence to show that she previously had a

cause of action against the defendant Retail Credit

Company but that the conspiracy and the separate and

several overt acts of the defendants in furtherance of

the conspiracy had successfully procured the running

of the statute of limitations, and that she suffered

separate independent damage from this continuous

conspiracy.

The defendants controverted all evidence offered by

the plaintiff except the evidence submitted by the

plaintiff that the defendant created a class of in-

dividuals for its own profit and convenience against

which a continuing discrimination had been practiced

during the years alleged to have been involved in the

conspiracy against the plaintiff. Plaintiff established

this class for the purposes of the motions filed by both

parties for summary judgment by affidavits and a

deposition, both given by former employees of the

defendant Retail Credit Company as well as by copies

of internal communications of the defendant Retail

Credit Company.

The District Judge rendered his opinion on the doc-

trine of collateral estoppel. The District Court so held

in the instant suit although the District Court in an

earlier suit against Retail Credit had denied, without

prejudice, plaintiff's motion to add all of the instant

defendants and sue all of them for conspiracy in that

earlier suit. This point is more fully discussed in the

ensuing brief.

The District Court apparently did not touch on any

other points of law in the some several pages of its

opinion othe.’ than the statute of limitations contained

in 42 USC §1986. The District Court held that the

statute of limitations had expired for bringing an ac-

tion under 42 USC §1986.

Ironically, the District Court’s contextual citation

from a Fifth Circuit case cited the case of Clariaway v.

Retail Credit, 141 So 2d 727, which was a case where

the Supreme Court of Mississippi held that the doc-

trine of collateral estoppel did not apply in a case

where the parties and subject matter were exactly the

same, as an earlier suit, the remedy sought being

different. This is obviously not atall similar in this in-

stant appeal as is discussed infra in argument.

Further, this case involves the basic question of

whether an indtvidual Plaintiff can bring suit for a

conspiracy to deprive that Plaintiff of that Plaintiff's

day in court, which of necessity is determined by

whether that person has federal protected civil right

to resort to the Courts for a remedy.

The Court of Appeals for the Fifth Circuit has on two

occasions adopted the logical extension of this Court's

ruling in Griffin v. Breckinridge (infra). Westberry v.

Gilman Paper Company, 507 F 2d 206 (5 CCA), and

McLellan v. Mississippi Power Company, 526 F 2d

870. On both occasions the Fifth Circuit has recalled

its ruling, Westberry in the same citation by a per

curiam addendum, and McLellan, 545 F 2d 919 (5 CCA)

1977).

ARGUMENT

Certiorari should be granted for a full hearing on

this petition and the case should be remanded to the

lower Court for a full trial on the merits for several

sound judicial reasons.

On two occasions, the United States Court of

Appeals for the Fifth Circuit, as has been mentioned

above, has ratified the logical and sound extension of

Griffin v. Breckinridge, 403 U.S. 88, 19 S. Ct. 1790, 29

L.Ed. 2d 338 (1971).

The two principal cases are Westberry v. Gilman

Paper Company (supra), and McLellan v. Mississippi

Power Company (supra).

The Westberry case was a suit against conspirators

for conspiracy to murder Westberry. The District

Court dismissed the suit, and the panel, with one judge

dissenting, reversed and remanded the cause for trial

under 42 U.S.C. Sec. 1985(3). After a poll of the Fifth

Circuit Judges, rehearing en banc was granted, and,

prior to rehearirig, the case was settled rendering it

moot, and the Court's opinion was, consequently,

withdrawn 507 F 2d 206, at 211.

In the McLellan case, the Plaintiff availed himself of

his federally granted right to declare bankruptcy in

the United States District Court in Jackson, Mississip-

pi. His employer discharged him under a policy main-

tained by the employer, and apparently agreed to by

the co-defendant union, the International Brotherhood

of Electrical Workers. McLellan sued his employer,

the local chapter of the union and the International, for

a conspiracy to deprive him of what he alleged was

federally protected right to declare bankruptcy.

After dismissal in the District Court, the United

States Court of Appeals for the Fifth Circuit in a panel

decision reversed and remanded holding that Plaintiff

had a federally protected civil right which had been

impaired by the acts of the Defendants, if true, as alleg-

ed. McLellan I, 526 F 2d 870.

On rehearing en banc, the Court of Appeals held

over a scathing dissent, that for an action to be main-

tainable under 42 U.S.C. Sec. 1985(3) that the con-

spirators must commit an independent violation of

the law, regardless of how other legal rights of the

Plaintiff might be effected. In other words, the Fifth

Circuit held that Plaintiff could not maintain an action

under the Civil Rights Act of 1871 for conspiracy to

deprive him of a valuable federally protected civil

right unless the acts of the Defendants violate some

other law than 28 U.S.C. Sec. 1985(3). Thus, the Court of

Appeals for the Fifth Circuit engrafted an artificia]

and improper additional element, not required by

previous decisions of this Court or the statute on to a

title 28 U.S.C. Sec. 1985(3) action.

Chief Judge Brown, Judge Goldberg and J udge God-

bold, dissenting vigorously attacked the majority

view, stating quote “common sense tells us that

private individuals can, without breaking any

specific law, place cognizable obstacles in the path of

someones quote ‘equal enjoyment of legal rights’ ”’,

542 F 2d 919 at 935, et seq. Plaintiff adopts the position

of the dissent, and urges this Court to closely examine

the majority opinion.

There is a division among the Courts of Appeal, as

admitted by the Fifth Circuit in McLellan II (footnote

22).

The Fifth Circuit stated:

“If the Defendants have not conspired to act

contrary to law, and object of a Section 1985(3)

conspiracy has not been made out and the sec-

tion is inoperable, regardless of wiether the

legal rights of the Plaintiff are somehow

affected. McLellan (supra).

Then the Court in Footnote 22 places itself in conflict

with the Fourth, Seventh and Eighth Circuit Courts of

Appeal on the question whether Section 1985(3) is

strictly and merely remedial or whether it also grants

substantive rights.

After the Fifth Circuit’s ruling in McLellan II

(supra), the instant case was decided by the United

States Court of Appeals for the Fifth Circuit stating:

“The Sec. 1985(3) falls before our en banc deci-

sion McLellan v. Mississippi Power and Light

Company, 5 Cir., 1976, slip opinion p. ,

F 2d ___, rev’g.,

Assuming that the terse language of the Court of

Appeals meant that the Plaintiff must meet all of the

requirements of McLellan II, Plaintiff examined those

parts of the McLellan requirements that might not

have been met on the original complaint and appeal.

The only requirement that Plaintiff's original com-

plaint and appeal had not emphasized were new re-

quirements first set forth in McLellan II (supra).

Plaintiff brought a petition for rehearing based upon

the possible misapprehension of basic facts by the

Fifth Circuit which were not emphasized at the time of

the briefing and oral argument in this cause since the

Court of Appeals second McLellan decision had not

been handed down at the time this case was taken un-

der submission.

Plaintiff set out in her petition for rehearing six mis-

demeanors and one felony cognizable under the State

Law of Mississippi, that had not been emphasized

originally, since the requirements did not exist at that

time. (All were inherent on the face of the record).

The Court of Appeals denied rehearing without

opinion, hence this petition for Certiorari.

There are several good reasons why Certiorari

should be granted, in addition to the divergence

among the Circuits pointed out by the Fifth Circuit's

opinion.

First, all of the plaintiff's causes of action could not

have accrued to the plaintiff prior to the rulings of the

Fifth Circuit in the cases of Wilson v. Retail Credit, 438

F 2d 1043 and later on February 20, 1972 in the case of

Wilson v. Retail Credit, 474 F 2d 1260. The plaintiff

contends that the damages caused her by the con-

spirators arising out of the conspiratorial agreement

occurred when the Fifth Circuit affirmed the District

Court’s rulings in both cases cited immediately above

since she was damaged at that time. It is plaintiff's

contention that she could not have brought this suit if

the defendants’ conspiracy had not actually procured

the running of the statute of limitations since she

would not have been damaged if their conspiracy had

not caused her to lose her choses in action as well as

her right to her day in court. It is Hornbook Law that

the damage caused by a conspiracy is the basis of the

action. Professer on torts 1 Vol. Ed. 1953.

Plaintiff has never sued the individual defendants

before. Therefore, the doctrine of collateral estoppel

can not apply to the individual defendants. Plaintiff

concedes that possibly, under a strained interpreta-

tion of the doctrine, the defendant corporation might

be released from liability under the doctrine of

collateral estoppel, but plaintiff's contention is that

the defendant Retail Credit Company is not released

by the doctrine because the damage did not occur until

the time mentioned above.

Plaintiff also contends that her common law cause

of action for conspiracy should be granted a full trial

based on the same reasoning. However, if this Court

does not conclude that the Civil Rights Acts apply,

then, the pendant claim must be dismissed for want of

jurisdiction since there is not complete diversity, the

plaintiff now being a resident of the State of Alabama

as is at least one of the defendants.

Additionally, plaintiff contends that none of the

defenses offered by the defendants are good defenses.

The decision of the District Court did not turn upon

any of the defenses other than collateral estoppel and

the one year statute of limitations contained in 42 USC

§1986. Appellant does not deem it necessary to cite

lengthy authority in opposition to the defenses not

employed by the District Judge in his decision. Plain-

tiff requests that the Court grant plaintiff an oppor-

tunity to be heard on, and brief, any other legal issues

other than those upon which the District Court's opin-

ion turned, should the Court be inclined to base its

decision on any other point of law.

Finally, plaintiff takes the position that a civil

rights complaint, particularly one of the nature of the

instant case should not be dismissed at the pleadings

stage except under the most extraordinary conditions.

Pe ee el Cm tt Pe rg

Whether An Individual Citizen Has A Civil

Right To Resort To The Courts In A Civil Suit.

Although it appears adequately clear that a

criminal in prison has a clear right of access to the

courts, which is a federally protected civil right,

Campbell v. Beto, (5 CCA, 1970) 460 F 2d 765, there is

little authority to the effect that an individual has a

right of access to the courts for a civil case.

There should be no doubt that the right of access to

the courts exists as a fundamental right. The law in the

matter, aside from scant mention, is not extensive.

However, two leading United States Supreme Court

cases have expressed the importance of the right to

litigate or sue and have held that the equal protection

of the law doctrine applies to this right. See Boddie v.

Connecticut, 461 US 371 (1971). In Barbier v. Connolly,

113 US 27, 31 (1885), the Court said that the Fourteenth

Amendment was intended to insure “that all persons

... Should have like access to the courts of the country

for the protection of their person and property and the

prevention and redress of wrong”.

Further, in Chambers v. Baltimore and Ohio

Railway, 207 US 142, 148 (1907), the Court said:

The right to sue and defend in the Courts is the

alternative of force. In an organized society, it

is the right conservative of all other rights,

and lies the foundation of orderly government.

It is one of the highest and most essential

privileges of citizenship.

It appears then, that there should be no doubt that the

right to resort to the courts is a right preservative of

all rights, and is therefore fundamental. Goodpaster,

“The Integration of Equal Protection, Due Process

Standards, and the Indigent’s Right of Free Access to

the Court”, 56 Iowa Law Review 223 at 253.

Additionally, and in keeping with the main thrust of

the plaintiff's complaint in this law suit, it has been

said that the sweep of the statute which makes it a

crime to conspire to injure any citizen in the free exer-

cise and enjoyment of his federal constitutional rights

is not confined to rights expressly defined in the Con-

stitution, but includes those rights judicially deter-

mined to be fundamental and embraced by implication

with the equal protection clause of the Fourteenth

Amendment. U. S. v. Anderson, 481 F 2d 65 [inter-

preting the criminal counter-part of §1985(3) 18 USC

241]. There is no doubt that the Constitution grants the

right to the citizen to resort to the courts by the crea-

tion of the courts.

II.

Whether The Plaintiff Can Maintain A Suit

Under The Civil Rights Acts For Damages

Against Individuals Who Successfully Con-

spired To Deprive The Plaintiff Of Her Ability

And Consequently Her Right To Sue A Credit

Reporting Company.

The plaintiff brought this action to recover damages

resulting to her from a conspiracy between the

various parties defendant, as is more fully set forth in

the amended complaint, in detail (R-110), alleging par-

2 Fd OD

Sete AD et Cee cewe Set Bee > |

we AY beets WO eel a

ticular and specific acts, and incorporating by ref-

erence several written memoranda and acts of the

defendants which were substantiated by admissions

of the defendants, and which were made the basis ofa

motion for partial summary judgment by the plaintiff.

Plaintiff does not appeal from the order denying her

partial summary judgment since plaintiff feels that a

plenary trial of this cause is the only judicially accep-

table method of disposing of this case.

On the other hand, plaintiff feels that the judgment

entered against her by the Court in favor of the defen-

dants is erroneous and wrong, hence this petition.

There is no doubt that the defendants acted in con-

cert to hide the plaintiff's cause of action. This is set

forth in the complaint on file (R-110) which

enumerates at page 4 of the complaint some nine sep-

arate overt acts of the defendants. Additionally, plain-

tiff made reference in the complaint to the affidavits

executed, by the defendants, under oath, filed in the

previous law suits. (Defendants subsequently filed,

with their answer, copies of the entire record in the

earlier law suits, two of which are relevant. Exhibit

“C” to the answer is the record in of the late William

Roberts Wilson, Sr.’s suit against Retail Credit and is

completely irrelevant for the purposes of this suit.)

Exhibits “A” and “B” to the answer are the two suits

where Mrs. Wilson’s causes of action in this suit were

perfected, perfection occurring February 20, 1973 in

Cause Number 72-2984 on the Fifth Circuit’s docket.

The affidavits in exhibit “B” are found at pages 83,

et. seq. of the record of that cause which is exhibit “B”’.

They are contained in that record as an exhibit to an af-

fidavit.

The same affidavits are in exhibit “A” at the foliow-

ing indicated pages and are more easily located ‘n a ‘a

in the copy of Plaintiff-Appellant’s brief which re-

places the record (destroyed by fire in New Orleans),

to-wit: Defendant Hammond at page 55, et. seq.; Defen-

dant Drone at page 58; Defendant Curtis at page 60, et.

seq.; Defendant Tackett at page 63, et. seq.

It is submitted that the destruction of the record and

the incomplete and haphazard substitute would make

it easier to refer to one of the original briefs.

It is practically undisputable that the defendants

zealously engaged in a series of overt acts beginning

in 1963 and ending as late as the Fall of 1972 which

series of acts had as its sole purpose the prevention

and later, vitiation, of the plaintiff's law suits for libel.

It is indisputable, and was the avowed purpose, in

those cases previously before the Fifth Circuit, that

the purpose and objective of the various affidavits

filed by the defendants in those cases had no purpose

other than furthering the aim of the conspiracy, which

was to deprive the plaintiff of the right to sue the

Retail Credit Company.

The defendants’ acts then, appear to have been de-

signed specifically and solely for the purpose of deny-

ing the plaintiff her day in court. This is an illegal ac-

tivity and one against which plaintiff is protected by

the law.

et i EE ce ET A nt

Of course, the essence of a civil conspiracy is a con-

cert or combination to defraud, or cause other injuries

to person or property, which results in damages to the

person or property of the plaintiff. Black's Law Dic-

tionary, Fourth Edition 1951.

There are two basic types of conspiracy which are

actionable.

First: A combination of persons to accomplish an

unlawful purpose, even though they employ lawful

means.

That is, that even though individuals acting in con-

cert and together employ perfectly legal methods for

the carrying out of their conspiracy, they still are

liable for civil damages when they achieve their il-

legal purpose.

Second: A combination of conspirators to achieve

a lawful purpose by unlawful means.

In other words, the second basic type of conspiracy

which is actionable is that in which a combination of

conspirators achieve a perfectly lawful purpose by

the use of illegal and unlawful means.

See Southern Christian Leadership Conference, Inc.

v. The A. G. Corporation, 241 So 2d 619; Mississippi

Power and Light Company v. Town of Coldwater, 234

Miss. 615, 636, 106 So2d 375 (1958), 15 CUS

“Conspiracy”, §1 (p. 906); also §§8 and 9 thereof (at p.

1003 and 1006-7.) Re: both types of conspiracy.

In this case, plaintiff has alleged the first type of

conspiracy. This action lies against defendants

because they employed lawful means, to conceal the

libel, which achieved the obviously unlawful end of

denying the plaintiff of her right to resort to the courts

for relief against the Retail Credit Company in the two

earlier suits.

Plaintiff was not damaged until those earlier suits

had been terminated in the Court of Appeals by affir-

mance of the District Court's decision dismissing each

of those earlier suits.

To present the case in its proper light, the plaintiff

summarizes with a brief synopsis of the facts leading

up to the filing of this law suit:

In June of 1961 and September 1963 and in May of

1964 and at various other times, the defendants, Retail

Credit Company and some of its employees, issued

and concealed libelous credit reports concerning the

plaintiff. The descriptions of the plaintiff contained in

the reports were outlandish, although that is not the

basis of this law suit.

The plaintiff, becoming concerned that something

might be wrong, made inquiries to several of the con-

spirator defendants and was lied to on each occasion

by the defendants who immediately engaged in

feverish activity to conceal the fact that they had

libeled the plaintiff. The defendants even resorted to

clandestinely shipping the file out of the state and the

jurisdiction of the Mississippi Courts to Atlanta,

Georgia because “it might become a matter of con-

troversy”. (See admission of Robert Biccum admit-

ting that the documents on pages 28-31 of the record

were prepared by him, admission is of record at page

45.)

Furthermore, the defendants denied that they had

even investigated the plaintiff. However, the Senate

Subcommittee on Anti-Trust and Monopoly of the full

Judiciary Committee discovered that the defendant

. had lied concerning those denials. This was dis-

covered in 1968 in a Congressional investigation

which turned up, for the first time, the unbelievably

horrible credit reports on the plaintiff.

a me

Two earlier suits, one for libel and the second for

| products liability, by the plaintiff against the defen-

dant Retail Credit Company were dismissed because

the statute of limitations problem and the technicality

of failure to allege malice. This suit has been filed by

the plaintiff against the separate and several defen-

dants charging the separate and severai defendants

with a conspiracy to concea! a cause of action for libel

and slander which thereby deprived the plaintiff of a

cause of action against the defendant Retail Credit

Company by successfully concealing the cause of ac-

tion until the statute of limitations had expired. (It be-

ing determined that the statute of limitations had run

by the decision of the Court of Appeals as mentioned

above.)

<A e ~Pee

This suit has been instituted under the Federal Civil

Rights Acts, as well as the common law of the State of

Mississippi. This suit is based upon a conspiracy of

individuals among one another as well as a con-

spiracy between the said individuals and the cor-

porate defendant Retail Credit Company.

The threshold question under the heading of this

particular issue is whether the facts as pleaded pre-

sent plaintiff with a valid cause of action under the

Federal Civil Rights Acts.

The plaintiff contends that she has stated a valid

cause of action because the plaintiff has shown that

the plaintiff can prove, and, in fact, has proven to a

great extent, that the defendants agreed to purposely

and intentionally deny the plaintiff her right of access

to the court to litigate the earlier suits on the merits.

The Federal Civil Rights Acts contain three prin-

cipal provisions that may be used to state a cause of

action for a conspiracy violative of a plaintiff's civil

rights. 42 USC §1983; 42 USC §1985(3) and 42 USC §1986.

The first of these, 42 USC §1983, will be of use to the

plaintiff only if the Court determines that the judicial-

ly granted qualified privilege and commercial custom

extended to the Retail Credit Company under the laws

of the State of Mississippi (Garraway Vv. Retail Credit

Co.. 126 So 2d 271) and the practices and usages of the

locality, state and community is sufficient state action

to control or be involved in the discriminatory treat-

ment complained of by the plaintiff. Adickes v. Kress,

398 US 144 (1970).

It has been demonstrated that the defendants’

reliance on the judicially protected privilege and the

custom and usage of the times, made it virtually im-

possible for the plaintiff to learn of the nature of the

libelous credit reports, and this appears to be suf-

ficient to state a cause of action uner 42 USC §1983,

a oe ee ee ee ket oe eee See

MD ek

a |

because there was a discriminatory action by the

defendants against the class of persons upon whom

libelous credit reports were made. The judicially

protected privilege applied to all such persons who

were libeled and acted to deny them their right of

access to the courts.

The cause of action under 42 USC §1983 is governed

entirely by this Court's interpretation of whether or

not the judicially granted privilege and the custom

and usage constitutes sufficient state actions to clothe

the defendants with state authority or state action.

Plaintiff has shown through the affidavit of William

F’. Boza (R-154) and the deposition of Len O. Holloway

(R-160 at page 8 thereof, beginning at line 24 on page 8

and continuing to line 24 on page 9 in said deposition)

that the defendant Retail Cred . Company created a

class of persons by requiring that a certain percentage

of the individuals upon whom reports were made to be

placed in the “declines” category class. The require-

ment that a certain percentage of individuals be given

unfavorable reports creates a class and the defendants

conspired to discriminate against Mrs. Wilson, a

member of that class, to deprive her of her access to the

courts.

Consequently, it appears that there is sufficient

state action in custom and usage of the community, as

employed by defendants, to imply a cause of action un-

der §1983 of Title 42.

There is no doubt, and it por ‘tively appears, that 42

USC §1985(3) definitely gives a good cause of action to

the plaintiff for relief from the oppressive acts of the

defendants. The pertinent portion of §1985(3) is set

forth in the table of statutes, page i. supra. The plain-

tiff comes within this legislation inasmuch as she has

on file in this case a complaint which alleges that the

defendants committed all of the following necessary

acts: (1) that the defendants did conspire; (2) for the

purpose of depriving the plaintiff directly of the equal

protection of the laws as well as the equal privileges

and immunities secured under the laws. Further,

plaintiff has asserted that all the conspirators (3) did

act in furtherance of the object of the conspiracy,

whereby the plaintiff was (4a) injured in her person

and property, (4b) she was further deprived of having

and exercising her right to sue as a citizen of the Unit-

ed States. Plaintiff has thereby met the burden of alleg-

ing each and every, and in the instance of item (4), both

alternatives as required by the ruling of this Court in

the case of Griffin v. Breckinridge, 403 US 88, 102-03

(1971).

In the discussion that follows, each of these re-

quirements will be treated individually and show that

the facts as presented by the complaint, the ad-

missions on file by the defendants and the exhibits

filed by the defendants support the plaintiff's cause of

action (and actually right to judgment) under §1985(3).

Concerning the first requirement, conspiracy, as

has been defined above, is an agreement, manifesting

itself in words or deeds, whereby two or more persons

agree to commit an unlawful act by legal means. or to

commit a lawful act by illegal means. Webster's New

International Dictionary, 570 (2nd Ed., 1949). In this

oe sad Re ne oe

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case, means were employed which will be considered

legai, as urged by defendants, for purposes of argu-

ment, to deprive the plaintiff of her day in court to sue

on the libelous credit reports. The result was clearly

unlawful.

It was held in the past that there was a requirement

that some aspect of state action be involved in a con-

spiracy for the cause to be actionable under 42 USC

§1985(3). However, the ruling of this Court in

Breckinridge (supra) clarified that requirement and

held that “it is evident that all indicators, texts, com-

panion provisions and legislative history, point un-

waveringly to §1985(3)'s coverage of private con-

spiracy” (id. at 101).

The second requirement for a successful action un-

der §1985(3) which should be discussed at the same

time that the first requirement is discussed calls for

the plaintiff to show an element of intent or purpose in

the discrimination against her by the defendants.

Breckinridge (supra at 102). This Court expressed

itself thusly:

The conspiracy, in other words, must aim ata

deprivation of the equal enjoyment of rights

secured by the law to all. (Breckinridge, 403

US at 102).

There can be no doubt but that the activities of the

defendants were aimed at concealing the cause of ac-

tion from the plaintiff. The second requirement is as

well met and satisfied by the obvious intent

manifested by the defendants to deprive the plaintiff of

her day in court by their vigorous activities which had

as their avowed, stated and sworn purpose the essen-

tial aim, and sole aim, of precluding plaintiff's right to

litigate her cause of action before a jury in the District

Court. The affidavits filed by the defendants (supra pp.

17-18) urging the District Court to sustain the defen-

dant Retail Credit Company’s plea of the statute of

limitations are of record in those cases. The defen-

dants may not dispute that all of these affidavits were

for the sole singular purpose of convincing the Dis-

trict Court that the statute of limitations had run in the

earlier cases.

The admissions in file indicate that as early as the

year 1963 that the defendants were afraid the plaintiff

might sue them and moved her file out of the State of

Mississippi to the State of Georgia so that it could not

be discovered (see admissions of Biccum (R-29 et. seq. )

It is apparent from the other admissions that a

prolific amount of communication took place between

the defendants relative to the plaintiff's innocent in-

quiries about her credit report.

The plaintiff's requests for admissions to the defen-

dants are set forth at pages 14, 18, 20, 24 and 26 of the

record. The admissions are of record at pages 41, 43, 45,

47 and 51 of the record. It is undisputed that the defen-

dants engaged in vigorous written communication

relative to the plaintiff and the possibility that the

plaintiff might be able to take some sort of court action

against them. Presumably there were also verbal com-

munication as well. The defendants, as might be ex-

pected, deny that they had any conspiracy in mind, but

it is obvious as well as law of the case that Mrs. Wilson

was not able to sue the defendant Retail Credit Com-

pany after the defendants undertook all of the ac-

tivities, mentioned above and below, which are the

basis of this present suit.

In the instance of the admissions of the defendant

Biccum (request and attached documents R-26 — R-31:

admission R-45) the defendant Biccum, with several of

the other defendants, including defendant Miller.

defendant Drone and defendant Grobe, engaged in a

series of communications between offices beginning

as early as October of 1963 and continuing through

April 16, 1964 which demonstrate their concern that

Mrs. Wilson might mount some sort of law suit against

them. At R-29 Biccum states:

we es

In the event our recent reports should become

a matter of controversy, we would want to

know just what we could depend upon to back

up each item in our report. (emphasis

supplied)

_ -—

ee ee oe so wer ers en Fs

Later, at R-31 there isa memorandum generated from

the office of defendant Biccum on October 25, 1963

which requests in paragraph 3 thereof that defendant

Grobe “determine whether there was a lack of con-

fidential handling” with a suggestion to Grobe that

Grobe read the riot act to the suspected leak in security

which might have given Mrs. Wilson an inkling of

what was in the scandalous credit report that they had

generated about her.

There follows in the same communication, a part of

the same memorandum which was to be sent ap-

parently to Jackson, Mississippi. The 6th paragraph

is followed by a one line sentence which indicates that

the file will be kept away from Mrs. Wilson's area,

presumably to prevent her discovery thereof.

Previously, in the record of admissions of Biccum,

and later in time, a memorandum was generated on

April 15, 1964 by defendant Biccum addressed to

Memphis, to the defendant’s office there and par-

ticularly to defendant Miller in Jackson, Mississippi

requesting that Miller “send in again all the files you

have on Mrs. Wilson and her husband”.

Defendant Biccum was getting the file safe and

secure out of the jurisdiction of the courts of Missis-

sippi after the decision in Garraway II, which the

defendant Retail Credit lost upon remand to the Cir-

cuit Court of Adams County, Mississippi. Garraway Vv.

Retail Credit, 141 So 2d 727 (Garraway II)

Finally, all the affidavits filed in the previous Mary

Wilson cases (incorporated herein in the record of the

second Mary Wilson case and the reconstructed, 2d

hoc record of the first Mary Wilson case) and the plead-

ings of the individual defendant Retail Credit can be

interpreted as having one and only one intent, that in-

tent was to deprive the plaintiff of her day in court, by

representing to the lower Courts that the statute of

limitations had expired on the libel after defendants

had previously, and successfully, concealed the first

libel from the plaintiff. There can be no doubt but that

the conspiracy had only one purpose and only one in-

Pte aw

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tent. That intent was successful on February 20, 1973,

and the plaintiff was damaged on that date.

The question might arise as to whether or not there

is a second aspect to the second requirement, as

enumerated above, that of intent, as to whether or not

the defendants’ action constituted a deprivation of

“equal protection of the laws, or equal privileges and

immunities under the laws”. Although most of the

cases reported that deal with 42 USC §1985(3) have

been racial discrimination cases, the wording of the

Statutes certainly does not confine Plaintiff to such

fact situations. Rather, one would assume that an in-

dividual who was not the victim of an ethnic based

conspiracy would have recourse to the law as well. In

fact, one of the leading commentators on the Civil

Rights Acts, Chester Antieau. Esq., Professor at

Georgetown University School of Law, in his volume

entitled Federal Civil Rights Acts: Civil Practice

(1971) at page 125 states that rights protectable under

42 USC §1985(3) “are rights created by federal laws,

rights owing their existence to the federal govern-

ment, and rights protected by the federal Constitu-

tion.’’ Further, the privileges and immunities

protected under subsection 3 of 42 USC §1985 should be

the fundamental rights according to the lessons of

American History (ibid. at 131.)

There is no doubt that the right of access to the

courts is fundamental. As set forth hereinabove, the

law on the matter, aside from scant mention, is not ex-

tensive. However, there is no doubt that the Constitu-

tion grants plaintiff the right of recourse to the courts.

In summation of the first and second requirements,

the plaintiff submits the plaintiff can easily show that

the defendants made an agreement to purposely and

intentionally deny her access to the courts, and that

the right of access to the courts is one that is to be en-

forced by 42 USC §1985(3). There is no dispute that the

right of access to the courts is one that is enjoyed by

nearly all citizens, meaning, in effect, that the plaintiff

was discriminated against and not enjoying this right.

The third and fourth requirements necessary for the

plaintiff to sustain her cause of action under §1985(3)

present no problem to plaintiff.

The third requirement is that the plaintiff must

show that at least one of the conspirators did, “any act

in the furtherance of the object of the conspiracy.”

Breckinridge (supra). This requirement would be

satisfied by the plaintiff proving some of the acts

enumerated in the complaint, all of which have been

admitted by the defendants, plus the additional

allegations of the complaint which plaintiff proved to

the extent that plaintiff felt justified in moving for par-

tial summary judgment in the lower court. The third

requirement would be further satisfied by proof of the

filing of affidavits in the earlier cases for the sole and

only purpose of convincing the court that the defen-

dant Retail Credit was protected by the statute of

limitations after the individual defendants, acting for

their own individual purposes and profit success-

fully concealed the cause of action for libel from the

plaintiff.

Several of the conspirators actively participated in

the earlier suits by executing these affidavits. These

SOO i GS | Wert thhaliinde, wotthinatens,

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affidavits were executed in 1971 and 1972 and were

some of the latter overt acts in furtherance of the ob-

ject of the conspiracy.

The fourth requirement, or the two alternatives of

the fourth requirement as it might be expressed, re-

quires that the plaintiff demonstrate an injury to her

personal property or to a federally protected fun-

damental right of citizenship.

The requirements of 4(a) that the plaintiff be injured

in her property are satisfied conclusively when it is

shown by the rulings in plaintiff's prior cases before

this Court (Mary Wilson v. Retail Credit Co., 438 F 2d

1043; Mary Wilson v. Retail Credit Company, 457 F 2d

1406) that the plaintiff was, in fact, denied her day in

court, thereby depriving her of her chose in action (her

property) as well as her right to vindicate her name in

court (her person).

Finally, in the case of Lynch v. Household Finance

Corp., (1972) 405 U.S. 538, 31 L Ed 2d 424.925 Ct. 1113,

reh. den. 406 U.S. 911, 31 L Ed 2d 822, 92S Ct. 1611, the

Supreme Court enunciated the policy of protecting

property rights under the Civil Rights Acts as a fun-

damental right of citizenship.

The alternative and disjunctive requirement 4(b)

would be conclusively satisfied ifthe court accepts the

argument that the right of access to the courts of this

nation is one of the rights or privileges meant to be

protected as a fundamental right of citizenship by 42

USC §1985(3).

The nature of a conspiracy law suit is such that the

elements may be permissively proved by circum-

stantial evidence. Although the instant case demon-

strates clear and convincing evidence sufficient to

establish the conspiracy without circumstantial

evidence, it is interesting to note in the following

cases, most of which were criminal cases, circum-

stantial evidence was deemed satisfactory under the

more exacting requirements of a criminal case: U. S.

v. Jacobo-Gil, 474F 2d 1213 (1973, CCA 9); Delli Paoli v.

United States, 352 U.S. 232, 236,77 SC 294, 1L Ed 2d 274

(1957); Blumenthal v. U. S., 332 U.S. 539, 557, 68 SC 248,

92 L Ed 154 (1947).

The immediately foregoing cases are criminal cases

wherein the standard of proof is different from thatofa

civil case. Although in the criminal proceedings the

holding was, in all of the above cases, that circum-

stantial evidence can prove a conspiracy. In the

Southern Christian Leadership Conference case

(supra) it was likewise held that circumstantial

evidence can establish accnspiracy. Additionally, see

U. S. v. Brooks, 473 F 2d 817 (CCA 9).

Also, if the court should hold that the provisions of

42 USC §1983 should apply, there is no need fora proof

of a conspiracy and there is no need for proof of racial

animus. Smith v. Ross, 482 F 2d 33 (CCA 6).

Perhaps the law of conspiracy was best put into

perspective by Mr. Justice Pitney in his opinion in the

Frey case where he stated:

“Just as the mechanism of a watch affords

evidence of a design, and hints of a designer,

so a systematic course of action, pursued at

one and the same time, by many persons, and

effecting their mutual interests, raises a fair

inference of an agreement between them to

pursue that course of action.” Frey & Sons v.

Cudahy Packing Company, 256 US 208, 217-

218.

There is good authority to the effect that conspiracy

may be pursued by filing pleadings, and other matters

in court proceedings. In this case, plaintiff alleges that

the last overt acts in furtherance of the conspiracy

were the filing of court pleadings, which finally

resulted in the natural and probable consequence of

her being denied her day in court by the rulings of the

courts.

In holding that the filing of documents in court is ac-

tionable, if done in the furtherance of a conspiracy, the

United States Court of Appeals in the Third Circuit in

the case of U. S. v. Johnson, 164 F 2d 42, cert den. 332

U.S. 852, 9 L Ed 421, 68 SC 355, reh. den. 33 U.S. 834, 10

L Ed 1118, 68 SC 457, gave authority for the plaintiff's

contention that the filing of the false and misleading

affidavits in the earlier cases, as well as the actual fil-

ing of the plea of the statute of limitations and the af-

fidavits filed in furtherance of the said plea gives rise

to a cause of action at the time damage occurs because

of the efforts of the conspirators. In the Johnson case,

the Third Circuit was addressing itself to a conspiracy

involving misconduct by several defendants who

were engaged in a “general conspiracy to debase the

administration of justice” with reference to specific

pieces of litigation in the Middle United States District

Court in Pennsylvania. The indictment alleged that

the conspiracy existed over a period of 14 years.

Further, in the case of Maclaskey v. Mecartney, et al,

reported at 58 NE 2d 630, the Illincis Supreme Court

upheld the plaintiff's right to sue the defendants based

on the allegations of conspiracy that the defendants

had engaged in a conspiracy to injure the plaintiff by

filing certain documents and pleadings in a court

proceeding in Cook County, Illinois which included

innuendo laden interrogatories. The Similarity in the

Maclaskey case and the instant case is based upon the

filing of documents in court to injure the plaintiff. The

documents in the Maclaskey case were filed in a

separate proceeding and Mrs. Ethel Maclaskey sued

Newell Mecartney and William Kerts for filing the

documents. Mrs. Maclaskey’s suit was in a separate

proceeding and was based upon the fact that defen-

dants had filed defamatory statements in another

proceeding in another court.

The proceeding in the Maclaskey case was for acon-

spiracy to libel and slander. In the instant case, there

is a Similarity in that the earlier cases dealt with sim-

ple libel and slander, but the defamation similarity

ends there. In the instant proceeding the defendants

are being sued for conspiring against the plaintiff to

achieve not only the destruction of her business but

the loss of her chose in action and right to sue the

Retail Credit Company, not for conspiring to libel.

The Illinois Supreme Court in the Maclaskey case

held that the filing of documents in court in

furtherance of a conspiracy was actionable and the

court held in that case, addressing itself to the statute

of limitations issue raised by the defendants as

folicws:

“The complaint alleged that all the libelous

acts were committed pursuant to a conspiracy

formed by defendants. The statute of

limitations did not commence to run against

any of the alleged libelous acts until the com-

mission of the last overt act done in pursuance

of the conspiracy.” (emphasis supplied)

Maclaskey v. Mecartney, 324 Ill. App. 498, 58

NE 2d 630 (1944).

Some of the courts interpreting the United States

Supreme Court's ruling in the Breckinridge case

(supra) have held that there is a requirement that a

plaintiff in an action based on 42 USC §1985(3)

demonstrate membership in a definable class. Thisis

not to say that every 42 USC §1985(3) action should bea

class action, but it appears that the courts have felt

that there should be a class based animus for an action

to be maintained under this section. Cameron v. Brock,

473 F 2d 608 .

Although plaintiff does not necessarily agree with

the holdings of these courts stating that there must be

membership in a class before an action is main-

tainable under 42 USC §1985(3), since on the face of the

statute it is stated:

In any case of conspiracy set forth in this sec-

tion if one or more persons engaged therein do,

or cause to be done, an actin furtherance of the

object of such conspiracy, whereby another is

injured in his personal property, or deprived

of having and exercising any right or

privilege of a citizen of the United States, the

party so injured may have an action for the

recovery of damages, occasioned by such in-

jury or deprivation, against any one or more of

the conspirators . . . 42 USC §1985(3).

Plaintiff contends that plaintiff need not be a

member of a defined class, however, plaintiff can show

the Court that plaintiff is nevertheless a member of

such a class which was both established by and dis-

criminated against by the defendant, Retail Credit

Company (with the cooperation of the individual con-

spirators in this case, in the instanceof the plaintiff.)

It is the policy of the Retail Credit Company and was

at the time that the plaintiff was injured, to require

that the investigators employed by the company

produce an arbitrary specified amount of “declines”.

The class declined or rejected reports appears to vary

between then and fifteen percent depending on what

type of report is requested. The investigators are re-

quired, under threat of discharge, to produce between

ten and fifteen per cent declines. This, in part,

demonstrates that the investigators are acting for

their own individual profit when they create the said

class.

The fact is established through the deposition of Len

O. Holloway, a former Retail Credit employee, which

appears at page 160 of the record, pages 8, 9 and 10 of

his deposition are particularly interesting on this

point.

= oer

Mr. Holloway is a fine upstanding citizen of Miami,

Florida. He is a veteran who held our nation’s highest

top secret clearance held by very few members of the

Armed Forces.

In his deposition, he states that orders are given by

supervisory and managers of staff to require the ar-

bitrary percentages of declines from the reports.

It is interesting to note further that the deposition

given by Mr. Holloway contradicts and shows as un-

true many of the facts stated by other Retail Credit

Company employees who are defendants herein,

further establishing a conspiracy, including Mr. Bic-

cum. Mr. Holloway demonstrated that Mr. Biccum’s

deposition given in the previous case (exhibit A tothe

answer of defendant) was very incorrect in several im-

portant and material aspects and showed further that

the deposition of Charles L. Hammond (of record in ex-

hibit B) was untrue and incorrect in many instances.

These are filed by defendant in this as case exhibits,

having been taken in earlier cases.

The affidavit of William F. Boaz (R-154) shows the

class is established by the Retail Credit Company.

Finally, plaintiff proposed in the District Court to

show internal communications of the defendant cor-

poration demonstrating that in addition to the Miami

and Richmond offices where Holloway and Boaz

worked, respectively, that on the west coast of the

United States, the defendant company established

such a class. Plaintiff was in possession of internal

communications of the defendant corporation so prov-

ing which are not of record in this case, but which were

part of the Congressional investigations into defen-

dant’s activities. Plaintiff can clearly show a national

policy of the defendants’.

Having established a class membership, plaintiff

feels that she has satisfied every requirement of every

court which has ruled on these particular points of

law. Plaintiff feels that she can maintain an action un-

der the Civil Rights Acts against the defendants.

ITI.

Whether The Plaintiff Can Maintain A Civil

Rights Action Under The Civil Rights Acts

Where Most Of The Defendants Were

Employees Of Another Defendant Where All

Of The Conspirators Acted For The In-

dividual, Separate And Disiinct Benefit Of

Themselves, Separately.

The defendants are expected to raise the question of

whether they have immunity from a suit under the

Civil Rights Acts for a conspiracy because they all

worked for the same individual corporation. The

defendants’ position appears to be that since they all

received a pay check from the corporate defendant,

Retai' Credit Company, they can be released from

liability.

Of course, it is well settled and Hornbook Law that if

a corporation and its individual employees can in-

dividually profit by engaging in a concerted course of

action their actions can constitute an actionable con-

spiracy.

Defendant Hammond left the employ of the cor-

porate defendant in May 1964 as is shown by his an-

swer to plaintiff's interrogatory number 2e (R-120).

Obviously he could conspire with his former

employer and others. Defendants may not be heard to

say that Hammond's acts in 1970 and thereafter were

the acts of the corporate defendant. After all, these

later overt acts were the very acts which denied plain-

tiff her day in court.

In the instant case, it is alleged that the employees

and non-employees conspired among themselves as

well as with the corporation. The allegation is that the

individual employees and the non-employee Ham-

mond, conspired by their own acts among themselves

and with the corporation and further that they con-

spired without the corporation's directions. These are

two separate causes of action as set forth in the com-

plaint. (R-110).

It is the law that if a corporation and its agents or

employees are acting other than in their normal

capacities or if they are acting for themselves that

they are subject to an action for conspiracy.

In this case, the defendant corporation Retail Credit

has denied that they were guilty of any conspiratorial

activity or that they directed their employees to act in

any illegal or unlawful way. This is their position. If

this is so, then it gives rise to an inference that the

employees were not acting according to their instruc-

tion given them ry the defendant corporation but were

acting on their own. This would make them acting

without their normal capacities and consequently ob-

viously liable under the above statement of the law

(see answer of defendant Retail Credit Company R-

111).

In the instant case, the defendants were acting for

their own personal benefit, and in the particular in-

stances of Hammond, Biccum and Pittman, there is no

doubt but that they were acting for their own personal

benefit.

The other individual defendants worked with the

last named defendants for the benefit of the last named

defendants as well as themselves. The corporate

defendant acted for its individual benefit.

If, as the corporate defendant has answered, it did

not direct its employees to act in the manner alleged in

the complaint, and if, as set forth in the answers of the

various parties defendant to interrogatories number

13 and 16 propounded by the plaintiff, none of the

defendants were ever directed or ordered by Retail

Credit Company to act in the way that they did, then it

must be presumed that they were acting in the sep-

arate capacity of an individual and not according to

the corporate purpose. In any event, they would cer-

tainly be liable for any conspiracy that they

perpetrated outside of their corporate duties.

The interrogatories appear at pages 53 through 77 of

the record, and answers to them appear at pages 112

through 120 of the record.

The collation of the questions propounded by the

plaintiff and the answers given by the defendants

sounds like responses of some of the convicted Water-

gate conspirators. The reading of the answers, as

evasive as they are, would be humorous ifthe plaintiff

had not been so tragically injured.

For instance, the answers of Biccum at page 2 of his

answers (R-112) state at interrogatory #6 “although I

have no clear recollection of it.”’ Later, at the answer to

interrogatory #7 the answer is begun “so far as I can

recall or determine”. He follows with his inability to

understand questions and many of his answers

throughout the rest of the answers to interrogatories

are rife with his inability to remember or are filled

with no present recollection. The answers to

interrogatories given by G. O. Pittman which appear

at pages 113 and 114 of the record are full of the lack of

his “present recollection”. The answers of J. W. Miller

are scarcely less satisfactorily expressed, but are

more voluble, and appear at page 116 of the record.

Besides nominating himself for sainthood in his an-

swers to interrogatories which begin at page 117 of the

record, defendant Grobe begins most of the answers or

includes later in the answers given by him the fact that

he does not recall. And so it goes in the rest of the an-

swers to the interrogatories. There is no doubt but that

the defendants’ memories serve them best when they

are signing and executing affidavits with definite

averments which are designed to keep plaintiff from

being able to litigate.

In the instant case, if the defendants were acting for

their own personal benefit, as is alieged in the com-

plaint, and the instances of perjury committed by the

defendants further given rise to the presumption that

they were acting in their own individual benefit, there

is no doubt that they are liable, individully.

If they were acting without the corporate authority

there is no doubt that they are individually liable.

All the defendants would have been liable for the

perpetration of a libel, personally, except the

employees of the Memphis office. Therefore, their ac-

tivities and actions can only be interpreted and pre-

sumed to be actions undertaken for their own personal

benefit.

There is sound authority that individual employees

of a corporation can be subject to an action for con-

spiracy if they are acting for their own personal

benefit. May v. Santa Fe Trail Transportation Com-

pany (Kan) 320 P 2d 390; Bliss v. Southern Pacific

Company (Ore) 321 P 2d 324.

Additionally, in the case of Nelson Radio & Supply

Company, Inc. v. Motorola, Inc. (5 CCA), a 1952 case

reported at 200 F 2d 911, an excellent and clear state-

ment of the above mentioned rule is given by the Fifth

Circuit. The Nelson case was a civil action brought un-

der the Sherman Anti-Trust Act to recover damages

arising out of the alleged conspiracy to injure the

plaintiff, a distributor of the defendant company. It

was there alleged that the conspiracy existed between

the defendant corporation, its president, sales man-

ager and “its officers, employees, representatives and

agents who have actively engaged in the manage-

ment, direction and contro! of the affairs and business

of the defendant.” The Fifth Circuit upheld the dis-

missal of the complaint but gave an excellent explica-

tion of the rules relative to corporate conspiracy with

employees. The Court went on to say that it should be

alleged affirmatively, expressly or otherwise, that the

officers, agents and employees were actuated by

motives personal to themselves in order to maintain a

suit for conspiracy against the corporation and its

——

employees. In this case we have demonstrated this

condition, it is alleged in the complaint and it is con-

clusively shown by the active scrambling of the defen-

dants to cover their tracks throughout the course of

this conspiracy.

IV.

Whether A Suit For A Conspiracy Which Dam-

ages An Individual May Be Brought Before

Damage Occurs.

Another threshold question which must be deter-

mined and is of moment on this occasion of appeal, is

whether the plaintiff could have brought her action in

this case prior to the final determination that she was

unable to proceed for the initial injury, which final

determination was made by the Court of Appeals on

February 20, 1973 as mentioned above. The question

may arise as to whether the damage occurred when the

District Court rendered summary judgment in the

first Mary Wilson case (April 23, 1970) or when the

Court of Appeals upheld that ruling on or about

January or February 1971 upon rehearing, the original

order having been withdrawn, or whether damage oc-

curred in the second Mary Wilson case on the 16th of

August, 1972, or whether the damage occurred to

plaintiff when this Court affirmed the ruling of the

District Court in the said second Mary Wilson case on

February 20, 1973.

In any event, it is clear that the damage occurred on

one of these occasions and all these occasions oc-

curred in the next six years preceding the filing of the

lawsuit in this appeal. The general Mississippi stat-

lille ia

ute of limitations of six years applies, and the plaintiff

has brought her action within that time.

One of the requirements for being able to bring an

action under the Civil Rights Acts, and particularly

under 42 USC §1985(3) is that there actually be an in-

jury to person or property. Breckinridge (supra);

Miles v. Armstrong (CA II] 1953) 207 F 2d 284; Grisom

v. Logan (DC Calif. 1971) 334 F Supp 273; Huey v.

Barloga (DC II] 1967) 277 F Supp 864; Providence Jour-

nal Company v. McCoy (DC R.I. 1950) 94 F Supp 186,

aff. 190 F 2d 760, cert den. 72 SC 200, 342 U.S. 894, 96

L Ed 669.

All of the above cases, including the landmark

Breckinridge case, and incidentally, the Hardyman v.

Collins case, overruled in part by Breckinridge,

universally hold that the damage must occur before a

conspiracy is actionable under this section. In fact, it

is the general law that a conspiracy may not be sued

upon and the conspirators held liable for damages un-

less damages have occurred.

Dean Prosser expresses the rule in his 1954 edition

thusly:

“On the one hand, it is clear that the mere

agreement to do a wrongful act can never

alone amount to a tort, whether or not it may be

a crime; and that some act must be committed

by one of the parties in pursuance of the agree-

ment, which is itself a tort. “The gist of the ac-

tion is not the conspiracy charged, but the tort

working damage to the plaintiff’. It is only

where means are employed, or purposes are

accomplished which are themselves tortious

that the conspirators who have not acted but

have promoted the act will be held liable.”

(emphasis supplied) Prosser, Law of Torts at

260.

Dean Prosser cited the following cases in support of

his pronouncement as expressed immediately above:

Beechley v. Mulville, (1897) 102 lowa 602, 70 NW 107, 71

NW 428; Delz v. Winfree (1891) 80 Tex. 400, 16 SW 111;

Robertson v. Parks (1892) 76 Md 118, 24 A 411; City of

Boston v. Simmons (1890) 150 Mass 461, 23 NE 210; Van

Horn v. Van Horn (1894) 56 NJ L. 318, 26 A 669; James v.

Evans (3 CCA 1906), 149 F 136, 140; White v. White

(1907) i132 Wis. 121, iii NW 1116; Hutton v. Waters

(1915) 132 Tenn. 527, 179 SW 134; Hudgens v.

Chamberlane (1911) 161 Cal. 710, 120 P 422.

And the list could go on ad infinitum. It seems in-

disputable and the universal authority that a con-

spiracy must first cause damage before it can become

actionable.

The question which must be answered by this Court

in order to determine several of the other issues is

whether the plaintiff could have brought her action for

conspiracy prior to being injured by the conspiracy.

Plaintiff submits that she could not have brought the

lawsuit until it was finally determined, by each and

every avenue, that she could not prevail and that the

conspiracy had been successful. Plaintiff filed her

first suit and was denied a trial on the merits. Plaintiff

filed her second suit under the savings to suitors

Eee eee ee

clause of the Mississippi Code (formerly §744 of Mis-

sissippi Code of 1942, as amended, as cited to the Court

of Appeals in the previous appeal) and this Court held

that she was not entitled to relief at that time.

Plaintiff submits that she was finally damaged

when she had exhausted all possible remedies to

secure relief based upon the libel, and that this cause

of action could not have been brought until she had

exhausted those remedies. This action was brought af-

ter she had exhausted those remedies.

Whether The Doctrine Of Collateral Estoppel

Applies To Bar Such An Action Against The

Credit Reporting Company And/or Its

Employees Who Conspired Each Individuaily

For Each Individual’s Separate Benefit Where

The Plaintiff Has Previously Sued The Credit

Reporting Company Alone In Its Individual

Corporate Capacity For A Libel.

Plaintiff has previously discussed above the

relationship of the corporate defendant and the sep-

arate employees and the non-employee, Charles Ham-

mond, in their activities and will not discuss that in

this portion of the brief.

This portion of plaintiff's brief will address itself to

the doctrine of collateral estoppel as it involves this

suit.

In its opinion, R-161, the District Court held that the

doctrine of collateral estoppel as applied by the Mis-

sissippi Supreme Court and the Fifth Circuit in the

respective cases of Garraway v. Retail Credit, 141

So 2d 727 (Garraway II) and Mary Wilson v. Retail

Credit, 474 F 2d 1260 (Mrs. Wilson’s second suit

against the corporate defendant) was controlling in

this case.

The plaintiff submits that the District Court was

operating under gross misapprehension of the doc-

trine of collateral estoppel particularly as applied in

Garraway II (supra). The Fifth Circuit at 474 F 2d 1260

held that since Mrs. Wilson had previously sued the in-

dividual corporate defendant alone and lost that she

could not again litigate under the Mississippi Code

Savings to suitors section stating: “We think that the

Mississippi doctrine of collateral estoppel is dis-

positive.”’ Wilson at 1260. In its footnote #2, the Fifth

Circuit stated:

“The instant complaint is grounded in

products liability, misrepresentation and

deceit, invasion of privacy, and interference

with property and contract rights. Regard-

less of the disingenuous characterization, no

new facts are alleged in the present litigation

which were not already decided by the

previous suit.’ Wilson II at 1260.

The Fifth Circuit Court of Appeals in Wilson II felt

the statute of limitations question which had been con-

clusively determined in the previous suit, Wilson v.

Retail Credit Company, 430 F 2d 1053 (5 CCA 1971)

controlled. Accordingly the doctrine of collateral es-

toppel did, in fact, apply to that case. The plaintiff in

that case had previously litigated the statute of

limitations question and it was no longer available to

the plaintiff even if the plaintiff alleged new grounds

of action which came under a different statute of

limitations of greater length. The question in the

earlier two Wilson cases of whether or not the

fraudulent concealment of the cause of action tolled

the statute of limitations. The District Court in both in-

stances and the Fifth Circuit in both instances held

that there was no legal duty for the defendants to dis-

close to the plaintiff the fact that she had a cause of ac-

tion. Wilson cases (supra).

The law of the case it would seem to be then was that

the defendants were acting lawfully when they misled

the plaintiff about the existence of her cause of action

for libel.

it foliows, then, that the uniawful objective of the

conspiracy, which was achieved, was achieved by

lawful means. This is the first type of conspiracy set

out hereinabove.

In the instant case, not only are the parties different

but the cause of action is different, and could not have

possibly been determined in the previous cases.

In fact, plaintiff's motion to implead the individual

defendants in Wilson II (supra) was denied without

prejudice by the District Court. A copy of the relevant

portion of the District Court’s opinion in that earlier

case is attached to the affidavit of attorney W. Roberts

Wilson, Jr. in the form of exhibit A attached to said af-

fidavit which is at page 145 of the record. At page 148-2

of the record the District Court stated “accordingly,

the motion for leave to amend is denied without pre-

judice.” [emphasis supplied]

Again, it is of record in this proceeding that plaintiff

attempted to bring in the defendants in the earlier

Mary Wilson case at page 3 of the District Court's

opinion of this case which begins at page 161. The Dis-

trict Court states in its opinion in that case that the

same Court denied the motion for leave to amend to

bring in the individual] defendants without prejudice.

Further, and finally, the District Court mentions on

page 7 of its opinion beginning at page 161 of the

record that the plaintiff's attorney’s affidavit proves

the same thing.

It is incomprehensible that the District Court, hav-

ing previously denied, without prejudice, plaintiff's

attempt to implead the individual employees and add

the conspiracy count would invoke the obviously in-

applicable doctrine of collateral estoppel to bar this

suit. The Court’s employment of this doctrine in this

case is absolutely erroneous.

The doctrine of collateral estoppel has been perhaps

more narrowly applied by the Courts of the State of

Mississippi than most other jurisdictions.

In fact, in the Garraway case (supra) the Mississippi

Supreme Court held that Mrs. Garraway and Mr. Gar-

raway who had previously sued Retail Credit for dis-

covery in a Chancery Court proceeding under a pure

bill of discovery were not precluded from filing a

separate civil action for damage later in the Circuit

Court of Adams County, Mississippi.

The fact situation in that case was stated by the

Supreme Court of Mississippi at 141 So 2d 727, 729

thusly:

“While the discovery suit was pending on

appeal, but after the Chancery decree, Mrs.

Garraway filed the three separate libel suits in

the Circuit Court of Adams County, against

Retail Credit and four other defendants. She

alleged that the Credit Bureau, Inc. of Georgia

(Credit Bureau) is a subsidiary of Retail Credit

and the defendants, Clarence Bowers, Johnny

Weeks and Jack H. Beattie, were agents and

employees of the defendant corporation. In

1951 and 1952 plaintiff was an employee of the

defendant corporation in Adams County, Mis-

sissippi and thereafter opened her own collec-

tion service business, and later a credit report-

ing business. Plaintiff has always been of

good moral character and reputation in the

community, but in 1958 defendants conspired

together to injure, discredit, and destroy her

character and reputation, and in carrying out

such conspiracy circulated without any

proper investigation ... (citing instances of

libel) (emphasis supplied)

... To this declaration all of the defendants

pleaded that the judgment of this Court in

Garraway v. Retail Credit Company

[Garraway I, 126 So 2d 271, parenthetical

supplied] constituted res judicata and

collateral estoppel on the issues of malice and

bad faith as related to the qualified privilege.

The Circuit Court sustained these pleas.

[1, 2] First. Collateral estoppel is a doctrine

which operates following a final judgment to

establish conclusively a matter of fact or law

for the purposes of a later law suit on a

different cause of action between the parties to

the original action. Because of its application

to a different cause of action from that in-

volved in the first suit, the doctrine is broader

than the “merger” and “bar” aspects of res

judicata. Nevertheless, the restriction of

collateral estoppel to issues actually litigated

and necessarily determined in the first action

circumscribes operation of the doctrine more

closely than “merger” or “bar” which may

effect matters which could have been litigated.

(emphasis supplied) 141 So 2d at 730.

The Mississippi Supreme Court went on to hold that

the doctrine of collateral estoppel did not apply and

the case was subsequently settled for a substantial

sum of money once Retail Credit and its co-defendant

employees, accused of a conspiracy, were placed in

the posture of having to go before a jury.

It is the established policy of the courts of the State

of Mississippi, as well as the courts of the United

States thai the doctrine of collateral estoppel does not

apply i: ‘aw suits such as the instant proceeding.

In the case of Johnson v. Bagby, the Mississippi

Supreme Court, addressing itself to the doctrine of

collateral estoppel, as laid down in Garraway II,

stated the rule as follows:

“This court, as is true in other jurisdictions,

has relaxed somewhat the application of the

doctrine of res judicata by enabling litigants

to use the doctrine of collateral estoppel, but

there are still certain basic requiremerts

which this Court has held must be present and

operating before the doctrine of collateral es-

toppel can be applied as a bar to a subsequent

action based upon a judgment in a former case.

[1] This Coyrt, speaking through Justice

Ethridge, pointed out in Garraway v. Retail

Credit Co., 244 Miss 376, 141 So 2d 727 (1962),

that “[c]ollateral estoppel is a doctrine which

operating, following a final judgment, to es-

tablish conclusively a matter of fact or law for

the purposes of a later law suit on a different

cause of action between the parties to the

original action.” Here is presented the first

basic requirement essential for the operation

of collateral estoppel, which is that the parties

to the original action must be the same parties

to the subsequent action. In collateral es-

toppel we have relaxed the rule under res

judicata and we have permitted a different

cause of action to be litigated between the par-

ties, but up to this time we still hold that it is

necessary that the parties to the subsequent

action must be the same as those in the prior

action.

To the same effect see Bush Construction Company v.

Walters, 179 So 2d 188; Sanders v. State, 242 So 2d 412;

C. I. T. Corporation v. Turner, 157 So 2d 648; Continen-

tal Turpentine & Rosin Co. v. Gulf Naval Stores Co.,

141 So 2d 200.

The above and foregoing authorities are the law in

Mississippi and quite distinctly and emphatically

deny the position taken by the District Court, in this

case, in the lower court’s opinion.

There are some courts which have applied the doc-

trine of collateral estoppel in civil rights suits whicn

attempted to relitigate criminal proceedings which

had already gone to judgment and have been affirmed

on appeal in state courts.

However, the weight of authority is to the effect that

the doctrine is improperly employed thusly. The

weight of authority is that the doctrine of collateral es-

toppel does not normally apply to a civil rights suit,

even if the facts have been essentially litigated in the

state court in a separate proceeding.

In this case, the doctrine does not apply for several

reasons, not least among which is the fact that the

cause of action did not arise until damages occurred,

which was after the cases upon which defendants

would base their plea of collateral estoppel had ter-

minated in the Fifth Circuit Court of Appeals. Further,

there is no identity of parties save with the possible

exception of the corporate defendant Retail Credit,

which is now sued for a separate tort, not the earlier

‘ ort that it has never denied, and it, consequently, may

not be excused on the doctrine either. Additionally,

there is no identity of the thing sued for, there is no

identity of the theory of action and finally, there was

obviously no chance for the plaintiff to litigate this

cause in the earlier action, inasmuch as her attempt

was resisted by the defendant and denied without pre-

judice, as set forth above.

In the following cases, the federal courts have ad-

dressed themselves to the question of collateral es-

toppel and have held that the doctrine should not be

applied to a civil rights complaint in a federal court:

Kauffman v. Moss, 420 F 2d 1270 (3 CCA 1969); Bricker

v. Sceva Speare Memorial Hospital, 339 F Supp 234

(1972), DC NH, citing Frazier v. East Baton Rouge

School Board, 363 F 2d 861 (5 CCA 1966); Burchette v.

Bower, 355 F Supp 1278 (DC Ariz. 1973)

From a fairreading from theabo« ‘ederal authority

there is no doubt that the federal courts have generally

adopted the policy that a reasonable doubt as to what

was decided by the prior judgment should be resolved

against using it as an estoppel.

The Third Circuit stated the rule thusly:

“Reasonable doubt as to what was decided by a

prior judgment should be resolved against us-

ing it as an estoppel (420 F 2d at 1274, citing

Northern Oil Company v. Socony Mobil Oil

Company, 368 F 2d 384, 388 (2 CCA 1968)

Professor Antieau comments thusly on the employ-

ment of the doctrine of collateral estoppel to bar a suit

under the Civil Rights Acts:

“Reasonable doubt as to what was decided by a

prior judgment should be resolved against us-

ing it as an estoppel. Prior state court

proceedings concerning the same general

subject matter can not by themselves require

dismissal of a civil rights case (citing

Mulligan v. Schlachter (1968) CCA 6, 389 F 2d

31 and Burchette v. Bower (supra)

The Court of Appeals for the Ninth Circuit has

ably remarked: “If a successful state prosecu-

tion based upon the use of information ob-

tained by violating the defendants’ con-

stitutional rights, could bar a civil rights ac-

tion against the police for violating his rights,

either by analogy to the law of malicious

prosecution or on theories of res judicata or

estoppel by a judgment, the Civil Rights Acts

would, in many cases, be a dead letter.” (citing

Nay v. California (1971) CCA 9 439 F 2d 1285,

1288)

Other courts have indicated that collateral es-

toppel is not to be applied recklessly in civil

rights actions. (citing Ames v. Vavreck (1973

DC Minn) 356 F Supp 931)

Federal Civil Rights Acts, Antieau, §84.1

It seems clear, then, that this case is definitely not

one for the application of the doctrine of collateral es-

toppel. Absolutely none of the elements are present,

and the decisions of the Supreme Court of the State of

Mississippi have required that each and every ele-

ment be present for the application of the doctrine. Ad-

ditionally, the federal courts have repeatedly held that

the doctrine is not to be applied except under the most

unusual conditions.

This case is emphatically not a case for the applica-

tion of the doctrine, under any interpretation. The

defendant Retail Credit could, under a strained and

tortured interpretation of the doctrine perhaps be ex-

cused from the law suit, but it is inconceivable that the

doctrine could be so tortured since the damage did not

occur until the previous suit had been finally litigated

to an end.

In any event, should this court decide that Retail

Credit is acting under color of law, or was acting under

color of law at the time due to the judicially granted

privilege which made them, in effect, immune to suit,

as conclusively demonstrated in Garraway I (supra)

then there is no need to prove a conspiracy and the 42

USC §1983 action certainly could not have accrued to

the plaintiff until the damage was done. Therefore,

there is one more reason why the doctrine can not ap-

ply, since the cause of action arose after the earlier law

suit was actually litigated.

VI.

Whether The Defendants Were Acting Under

Color Of Law Within The Terms Of 42 USC

§1983.

The plaintiff has already advanced the argument

that the defendants were acting under color of law

above and will not further belabor the point here.

VII.

Whether 42 USC §1986 Applied To The In-

dividual Defendants In This Case And

Whether The Statute Of Limitations In 42 USC

§1986 Commences To Run At The Time The

Damages Have Been Finalized.

Plaintiff simply submits by way of argument under

the preceding question the fact that the one year

statute of limitations contained in 42 USC §1986 would

not have expired at the time of the filing of the instant

suit since the damage did not occur until February 20,

1973 and consequently, that there could have been no

damage until that date and this suit was commenced in

December of the same year, less than one year after the

occurrence of the damage. The statute provides that

the suit must be for “all damages caused by such

wrongful act.” 42 USC §1986.

The rights protectable under this section are the

same as those that are safeguarded under 42 USC §1985

and must be ones arising under the federal Constitu-

tion or laws. Miles v. Armstrong (1953, CCA 7) 207 F 2d

284.

It is elementary that 42 USC §1986 by its language

extends its protection only to “the party injured”.

It is interesting to note that there is no requirement

of state action or color of law by the language of §1986

which authorizes suit against “every person”.

It only remains for this Court to determine whether

or not plaintiff's damage occurred as alleged on

February 20, 1973 and whether the statute began to run

at that time. If the statute began to run in February of .

1973, then this suit was timely brought under 42 USC

§1986.

VIII.

Whether The Pendant State Claim Of Con-

spiracy Is Subject To Being Dismissed Under

The Doctrine Of Collateral Estoppel.

Plaintiff submits that if the doctrine of collateral es-

toppel does not apply to the claims set forth under the

Civil Rights Acts then by the same token it certainly

should not apply to the pendant state claim for con-

spiracy.

If this Court holds that the plaintiff does not havea

cause of action under the Civil Rights Acts, then it

follows that the pendant claim under the state com-

mon law must be dismissed. It would then be for the

plaintiff to bring her law suit in the state courts of the

State of Mississippi since there is not complete diver-

sity of citizenship that plaintiff, having moved to

Mobile, Alabama, now being a resident of the State of

Alabama where defendant Drone resides.

Plaintiff urges that if this Court determines that

there is no cause of action stated under the Civil

Rights Acts that the Court must then, it follows, deter-

mine that the District Court and this Court as well,

were and are without jurisdiction, and that the District

Court and this Court lack jurisdiction of the pendant

claim under the terms and conditions of the diversity

statute since at the time of the commencement of the

law suit the plaintiff was a resident of Mississippi as

are several of the co-defendants, and the plaintiff is

now a resident of the State of Alabama as is defendant

Drone.

This would leave plaintiff to file her law suit in the

state courts of the State of Mississippi and prosecute it

there under the pendant state claim.

Respectfully Submitted,

MARY ELIZABETH WILSON

William Roberts Wilson, Jr.

PLAINTIFF WILL BRIEF OTHER POINTS AD-

VANCED AS DEFENSES UPON WHICH THE

LOWER COURTS OPINIONS HAVE NOT TOUCHED

IF THE SAME IS DESIRED BY THIS COURT.

APPENDIX

In the Appendix are the opinions of the lower

Courts. The opinions mentioned in footnote 1 of the

Fifth Circuit's opinion in this case are not companion

cases, but two of them are cases the decisions in which

affirmed that Plaintiff had been damaged.

FIRST AMENDED COMPLAINT

In the United States District Court for the

Southern District of Mississippi

Southern Division

MARY ELIZABETH WILSON,

Plaintiff,

versus NO. 72(S)-304(R)

ROBERT W. BICCUM, J. W. MILLER, C.A.GROBE, G.

O. PITTMAN, J. J. CURTIS, T. E. DRONE, CHARLES

L. HAMMOND, BOBBY GANN, DOE 2, DOE 3, DOE 4,

DOE 5, DOE 6, DOE 7, DOE 8, DOE 9, and DOE 10, all in-

dividuals, and RETAIL CREDIT COMPANY, INC.,

ROE 1, ROE 2, ROE 3, ROE 4, ROE 5, ROE 6, ROE 7,

ROE 8, ROE 9, ROE 10, Bodies Corporate,

. Defendants.

Comes now the Plaintiff, Mary Elizabeth Wilson, by

and through undersigned counsel; and institutes this,

her suit, against the parties defendant, named and un-

named, and would show unto the Court the following

facts, to-wit:

Plaintiff brings separate and several actions and

causes of action against the various named parties

defendant, as well as the unnamed parties defendant,

individual and corporate, and would seek judgment of

this Honorable Court, jointly and severally against

them and each of them for the matters and facts

hereinafter stated and alleged.

Plaintiff seeks judgment in joint and in several

against all of the various parties defendant based

upon the following causes of action and facts, to-wit:

Plaintiff is an adult resident citizen of Jackson

County, Mississippi, residing at the Longfellow

Apartments in the City of Pascagoula therein.

The Defendant, Robert W. Biccum, is an adult non-

resident of the State of Mississippi and may be served

with process at his place of employment, which is the

Retail Credit Company office at 1600 Peachtree Street,

in the City of Atlanta, Georgia.

The Defendant, J. W. Miller, is a non-resident of the

State of Mississippi, who may be served with Service

of Process at his business address which is 5800 Old

Peachtree Street in the City of Chamblee, Georgia.

The Defendant, C. A. Grobe, is an adult non-resident

of the State of Mississippi, who may be served with

process at his business address, which is the Memphis

Retail Credit Company office, 5050 Poplar Ave. in the

City of Memphis, Tennessee.

The Defendant, G. O. Pittman, isa non-resident of the

State of Mississippi, who may be served with service

of process at his business address, which is 1600

Peachtree Street in the City of Atlanta, Georgia.

The Defendant, J. J. Curtis is a non-resident of the

State of Mississippi, who may be served with service

of process at his usual business address, which is the

Tallahassee Retail Credit Company office, 501 North

Duval Street in the City of Tallahassee, Florida.

The Defendant, T. E. Drone. is an adult non-resident

citizen of the State of Mississippi, who may be served

with service of process at his usual business address,

which is the Montgomery Retail Credit Company of-

fice, 472 South Lawrence Street, City of Montgomery,

Alabama.

The Defendant, Charles L. Hammond, is an adult

resident citizen of Bolivar County, and may be served

with process of this Honorable Court at his usual and

customary place of employment which is the Shaw

High School in Shaw, Mississippi.

The Defendant, Bobby Gann, is an adult non-

resident of Jackson County, Mississippi and may be

served with process of this Honorable Court at Walnut

Road in Starkville, Mississippi.

The Defendant, Retail Credit Company, a body cor-

porate, is a foreign corporation upon whom service of

process may be had by process upon B. A. Coley, resi-

dent agent for service of process whose address is Ex-

ecutive North Building, 802 North State Street,

Jackson, Mississippi.

This Court has jurisdiction of this controversy ur-

der Title 42, United States Code, Sections 1983, 1985

and 1986, without regard to the citizenship of the par-

ties or the amount in controversy.

Your Plaintiff would show unto the Court that

between the years 1959 and 1970, and perhaps

thereafter that the Defendants, and each of them,

entered into various and sundry artifices, deceptions,

collusions, and other nefarious practices, all in con-

spiracy with one another, for the purpose of

precluding her discovery of their other tortious acts

against her, which acts of conspiracy, not only in

themselves constitute a separate and distinct tortious

conduct against your Plaintiff, but which actually

deprived her of knowledge of her rights of action

against the Defendant, Retail Credit Company and

denied her the opportunity to have her wrongs

redressed through processes of law.

Plaintiff would show unto the Court that she has

been the victim of a conspiracy which achieved an un-

lawful end and result by the use of questionably lawful

means.

III

Plaintiff will show unto the Court that the con-

spiracy existed and that the said series of events

leading up to and culminating in her most recent in-

juries because of the said conspiracy began when

defendant Charies L. Hammond prepared and does so

admit preparing, in 1963, a credit and character report

on the Plaintiff containing outlandish descriptions of

her, said report being prepared at the direction and in-

stance of the named corporate defendant herein, Retail

Credit Company. Plaintiff takes emphatic issue with

the nature and substance of the said report, however,

Plaintiff would affirmatively say unto the Court that

Plaintiff does not sue for the defamation contained in

the said report.

Plaintiff sues the Defendants for the conspiracy

which deprived her of several valuable Federally

protected rights.

Plaintiff would show unto the Court that the effect of

the conspiracy was to deprive her of (1) equal protec-

tion of the laws, and; (2) equal privileges and im-

munities under the law, and (3) several other federally

protected rights including the right to make contracts

to pursue her lawful and chosen profession, and final-

ly, and perhaps most important, the conspiracy

deprived her of the right to maintain an action in Court

and the fundamental right of citizenship to resort to

the Courts for protection of ones liberty, property and

reputation.

Plaintiff would show unto the Court that by and

through several acts of secreting her reports and file

beyond the borders of the State of Mississippi to avoid

judicial process, as is indicated by admissions on file

herein, and by several lies and deceptive represen-

tations to your Plaintiff, and other activities which

will be shown unto the Court upon the discovery

thereof, as well as the activities and acts hereinbelow

indicated, constitute the gravamen of theconspiracy.

Plaintiff would show unto the Court that the co-

conspirators acting as indicated hereinbelow, denied

that credit reports had been prepared on her, and they

further contacted and intimidated the recipients of the

false reports with threats of the obligations of the said

recipients under the Retail Credit Agreement for ser-

vices, a true and correct copy of which is attached

hereto as Exhibit “A”, and incorporated herein by

reference as if fully copied in words and figures

herein, and that they did act as follows to conspire to

her detriment and the ultimate destruction of her

business and her ability to sue them in Court, in-

asmuch as they successfully concealed her rights of

action against the parent company, Retail Credit

Company, and themselves, until the statute of

limitations, as applied by the United States District

Court and the Fifth Circuit Court of Appeals had ex-

pired, in former suits filed against the retail Credit

Company by her.

Plaintiff would show unto the Court that Plaintiff

has been successfully denied her day in Court by the

conspiracy since the conspiracy, acting by

questionable lawful means, achieved the grossly un-

lawful purpose of the said conspiracy which was to

deny her, among other federally protected rights, the

right to her day in Court.

The course of events which transpired, as it is

known to your Plaintiff. took the following

chronological order, to-wit:

1. Biccum, co-defendant herein, wrote co-

defendant Grobe a letter on October 25, 1963, which

letter was sent from Atlanta, Georgia to Memphis,

Tennessee, directing the said Grobe to take certain

security measures to prevent Mrs. Wilson from dis-

covering further matter about her Retail Credit Com-

pany report file or other records. Said Biccum by the

said letter to said Grobe intended to preclude further

breaches of security, had any occurred, and to prevent

any future breaches of security. Said Grobe ac-

quiesced in the said conspiracy.

2. Biccum, co-conspirator, also wrote a letter on

October 25, 1963, to co-defendant Miller, in the Retail

Credit Company office in Jackson, Mississippi,

suggesting the same that he had suggested to co-

defendant Grobe, but further indicating that the said

Miller should and ought to determine where the breach

of security had occurred. Said Miller acquiesced and

actively participated in concealing the said cause of

ction, as did Grobe.

3. On November 12, 1963, Biccum, again wrote to

Miller, anticipating the possibility of a law suit by the

Plaintiff against the Retail Credit Company and the

said Biccum directed Miller and others in the Jackson,

Mississippi office to undertake preliminary steps to

substantiate the false charges they had made, and

further directing by telephone calls at the same time,

and other communications, that all of the Mississippi

offices at that time take a special precaution relative

to protecting themselves from discovery in their tor-

tious conduct by the Plaintiff.

Further, Biccum had already removed the Plaintiff's

file beyond the boundaries of the State of Mississippi

in anticipation of possible legal action, as is admitted

by admissions on file herein.

4. On April 10, 1964, Biccum directed said Miller to

gather information that he and other unnamed and

named conspirators herein had, and to send all the in-

formation and files that said co-conspirators had

relative to the Plaintiff to the home office of Retail

Credit in Atlanta, Georgia, thereby’ removing the

documents from the jurisdiction of the State of Mis-

sissippi, which was done solely and for the singular

purpose of removing the said documents from the

jurisdiction of the Courts of the State of Mississippi,

for the purpose, as admitted in admissions on file

herein, of concealing the said documents. Miller and

the others did so follow through perpetuating and

perpetrating the conspiracy.

On April 10, 1963, said co-defendant Grobe and co-

defendant Pittman and co-defendant J. J. Curtis and co-

defendant Biccum variously, discussed the Plaintiff's

attempts to determine the tortious conduct of them and

all of them, by telephone, and concluded certain

further measures they should undertake to prevent

her learning further about any tortious conduct they

had engaged in.

5. Further, on April 10, 1964, co-defendant Curtis

wrote co-defendant Biccum, sending a copy ofthe said

letter to co-defendant, J. W. Miller, giving a narrative

of a conversation with the Plaintiff, which narrative

contained indicia of the nature of the course of conduct

they were taking against your Plaintiff to conceal the

course of action, including the denial of one Johnny

Miller, co-defendant herein, that they had made a

report on her.

Further, as a post script to the said letter of Apri! 10,

1964, sent by the said Curtis, the said Curtis indicated

that he had led the Plaintiff to believe that he was tak-

ing affirmative steps to remedy any improper

situations which might exist with regard to her credit

report, thereby misleading the Plaintiff into a sense of

security relative to the need for action on her part.

In the same letter, said Curtis requested further in-

structions from said Biccum relative to further

“handling” of the Plaintiff's case.

6. On or about May 5, 1964, co-defendant Drone,

contacted and conferred with co-conspirator Biccum

for further instructions and devices relative to han-

dling the concealment of Plaintiffs cause of action

from Plaintiff.

7. Prior to the most recent conspiratorial acts set

forth hereinabove, on February 7, 1964, co-defendant

Pittman wrote to co-defendant Miller transmitting the

papers of the Plaintiff back to the Jackson, Mississip-

pi office from Atlanta since it appeared that the Defen-

dants had successfully precluded the Plaintiff from

proceeding against them, and that the matter was

“quiet”, thereby furthering the conspiracy of conceal-

ing the causes of action from the Plaintiff and conceal-

ing other remedies from the Plaintiff.

8. Apparently in the year 1964, in the spring time

or early summer, the Defendant, Charles Hammond,

reported several visits and telephone calls from the

Plaintiff to his superiors for instructions “because she

seemed to have some inside information about the

nature of his reports” and the said superiors, co-

10a

defendants herein, including named and unnamed co-

defendant, advised and conferred with him to further

the conspiracy of secrecy.

9. Co-defendant Bobby Gann, on or about January

10, 1967, wrote the Retail Credit Company office in

Jackson, Mississippi, writing to co-defendant Drone,

indicating that he would not respond to the inquiries

of the Plaintiff when she had contacted him that day,

and stated that he just listened and made sure that he

did not “stick his neck out” and requested directions

from the said Drone relative to further handling of the

Plaintiff.

Said Gann has since admitted that he had indicated

to the Plaintiff on the said occasion mentioned im-

mediately above, that he would contact the Jackson of-

fice for the purpose of rectifying any problems she

might have, thereby misleading the Plaintiff and

perpetuating the said conspiracy.

Co-defendant Gann further has admitted that it isa

practice and a policy of the Retail Credit Company to

require that their investigators send in a certain

number of bad reports, thereby showing the bad faith

of the said Retail Credit Company in conducting all of

the operations hereinabove set forth and others

hereinbelow set forth, and others not yet discovered

relative to the Plaintiff, since the Plaintiff was nothing

more than a statistic which they required of their in-

spectors, i.e., one of the required bad reports.

10. Plaintiff would show unto the Court that Defen-

dant Hammond, Biccum and others have executed Af-

ila

fidavits, under oath, filed in law suits pending before

this Honorable Court for the avowed admitted and

stated purpose of convincing this Honorable Court

that the Plaintiff knew or should have known of her

cause of action at a time when they were acting affir-

matively to conceal the same, and so thereby lead the

Court to the conclusion that the Plaintiff's claim was

barred by the statute of limitations, all ata time within

the last two years, which is the most recent effort on

behalf of the conspiracy by the conspirators to bear

fruit, which fruit has been born recently in the denial

of the Plaintiff's day in Court on her defamation ac-

tions.

Plaintiff therefore charges that the Defendants used

the law to their own wicked and evil ends, and thereby

perverted the course of justice. Plaintiff charges the

defendants by the said lawful means, denied her her

day in Court, thereby achieving an illegal end.

11. Other overt acts done pursuant to the con-

spiracy, include by description, but not by limitation;

denials by co-conspirators Miller and Hammond that

a Retail Credit report had been made on your Plaintiff,

such denials being the custom and corporate policy of

the corporate defendant, a telephone call from co-

conspirator Grobe in the Memphis, Tennessee office to

the Legal Department of the Corporate Defendant on

or about April 10, 1964, to discuss the Plaintiff because

the Plaintiff had made a telephone call to the Memphis

office.

Plaintiff contends that the Defendants in this case

conspired to prevent her from discovering their high-

ly prejudicial and absolutely unreliable data in said

12a

Retail Credit Company’s file on her and the report of

September, 1963, although they admitted to the United

States Senate in December, 1968, that the credit report

was wrong.

Defendants conspired together with purposeful in-

tent to prevent Plaintiff from discovering that the un-

reliable information existed and that the highly pre-

judicial and slanderous credit report has been issued,

until after the statute of limitations had run and ex-

pired and thereby effectively prevented her from hav-

ing her day in Court on the libel and slander action and

other remedies, thereby denying her basic and fun-

damental rights of citizenship, the equal protection of

the laws, and due process of law.

Plaintiff further contends that the conspiracy of the

said Defendants was accomplished under color of

State Law by and because of the actions of the State of

Mississippi, in extending to the Defendant, Retail

Credit Company, and its employees, a conditional

privilege of secrecy, and that as a result of this con-

ditional privilege and the abuse and misuse of the

same, the co-conspirators herein denied effectively to

the Plaintiff her day in Court.

Plaintiff shows therefore unto the Court that the

Defendants achieved an unlawful and illegal and

prohibited end by and through their misuse and abuse

of the law of the State of Mississippi.

12. Plaintiff contends further that said Defendants

conspired with each other to get Plaintiff's file out of

Mississippi so that it could not be subpoenaed if she

brought an action in the Mississippi State Courts.

13a

Plaintiff contends that as a result of this conspiracy

on the part of said Defendants that she was denied the

equal protection of the laws and the equal privileges

and immunities under the laws in that she was a vic-

tim of intentional and purposeful discrimination by

the said Defendants against herself in particular, and

all others similarly situated in general, in that said

Defendants intentionally and purposefully prevented

her from realizing her day in Court which is guar-

anteed to-all citizens who have been aggrieved under

the equal protection and equal privileges and im-

munities clauses of our United States Constitution.

The said Defendants have realized fruit of their con-

spiracy as recently as August 16, 1972, when this

Honorable Court entered an Order of Summary Judg-

ment based on Statute of Limitations denying the

Plaintiff the right to sue the said Defendant, Retail

Credit Company, for a cause of action, the existence of

which was concealed from the Plaintiff by the various

parties Defendant action in conspiracy as alluded to

hereinabove.

Plaintiff therefore shows unto the Court:

That the Defendants conspired to conceal her cause

of action against Retail Credit Company, as is

hereinabove set forth.

That the purpose of the conspiracy was to deprive

your Plaintiff of the equal protection of the laws and

the equal privileges and immunities of the law,

thereby denying her her fundamental — includ-

ing her day in Court.

14a

That there was a purposeful intent on the part of all

of the said Defendants to so act and conspire, to dis-

criminate against the Plaintiff and prevent her from

exercising her rights hereinabove set forth, in par-

ticular, and that a greater conspiracy existed which

included the Piaintiff among a class of all other per-

sons similarly situated.

That the Defendants acted under the color of State

Law, as well as local customs and usage, under the

qualified privileged granted by the Mississippi

Supreme Court and contracts employed by the Defen-

dants which allowed them to proceed against their co-

conspirators, their subscribers, who will be named as

Defendants herein upon discovery through proper

discovery procedures, they being co-conspirators in

perpetuating the web of secrecy preventing the Plain-

tiff from discovering her cause of action, under the

said agreement of the Retail Credit Company.

femphasis added]

That the Plaintiff was injured in her person and

property and in exercising her rights of citizenship,

which rights of citizenship are the right to sue and vin-

dicate her name and the right to engage in business

and to own property and the right to follow any lawful

business and make all proper contracts in fur-

therance thereof, but most particularly the right to her

' day in Court, by and through the conspiracy and acts

of the Defendant.

Plaintiff therefore shows unto the Court that the

Defendants, acting in concerts and together, con-

spired against her and that she has been injured

thereby.

15a

Your Plaintiff would show unto the Court that the

conspiracy so entered into by the various named par-

ties defendant did, in fact, hinder and impede her from

exercising the said remedies, therefore bearing the

fruit of the conspiracy as recently as August 16, 1972,

when this Honorable Court entered an Order of Sum-

mary Judgment based upon the Statutes of

Limitations denying the Plaintiff the right to sue the

Defendant, the Retail Credit Company for a cause of

action, the existence of which was concealed from

your Plaintif! by the various parties defendant action

in conspiracy, as alluded to hereinabove.

Your Plaintiff charges the Defendants as named

hereinabove with conspiracy and a concerted con-

spiracy against her.

Plaintiff would show unto the Court that during all

the time that the conspiracy existed, that the defen-

dants were action under color of law and under color of

law, not only in the State of Mississippi but in the State

of Georgia and in the State of Tennessee and in various

and sundry other jurisdictions in which their tortious

and conspiratorial activity occurred. Plaintiff would

show unto the Court that the Defendants were

protected by a privilege, known as a defeasible, con-

tingent privilege, and they operated under this

privilege with impunity, inasmuch as the privilege,

granted by the laws of the State of Mississippi and the

other jurisdictions, allowed them to engaged in a

course of action injurious to your Plaintiff, in concert

and conspiracy with one another, under the protection

of the law. Defendants were actually able to deprive

16a

Plaintiff of her rights and legal privileges and other

property rights, acting under this color of law.

Your Complainant would show unto the Court that

the Defendant's conduct, in conspiracy, and in concert,

were of such character and nature and of such

malicious and wanton and reckless nature that she

should be given punitive and exemplary damages, as

well as actual and compensatory damages against

each of the parties defendant, jointly and severally.

Because of which and all of which the Plaintiff sues

and demands damages, both compensatory and

punitive of the parties defendant.

SECOND CAUSE OF ACTION

Now for a Second Cause of action, your Plaintiff

reavers and realleges each and every allegation as

hereinabove set forth and reserving all rights and

waiving none, and for a second cause of action, avers

that she is entitled to relief and judgment as against

the various named parties defendant, to-wit:

Robert W. Biccum, J. W. Miller, C. A. Grobe, G. O.

Pittman, J. J. Curtis, T. E. Drone, Charles L. Hammond,

and Doe 1, Doe 2, Doe 3, Doe 4, Doe 5, Doe 6, Due 7, Doe 8,

Doe 9, Doe 10, all individuals and Roe 1, Roe 2, Roe 3,

Roe 4, Roe 5, Roe 6, Roe 7, Roe 8, Roe 9, and Roe 10,

Bodies Corporate, for their tortious conspiring

against her as individuals without the direction of

17a

their superiors, and in such manner as even though,

had it been under the direction of their superiors,

would subject them to liability for conspiracy against

your Plaintiff, both under the laws of the State of Mis-

sissippi and under the laws of the United States and

the Common Law.

Your Plaintiff would show unto the Court that

because of acts entered into between the year 1959 and

the year 1972, that she was denied her day in Court and

was denied her rights as allowed to her under the laws

of the State of Mississippi and the United States to pro-

ceed against the defendant named herein, The Retail

Credit Company, by and because of the conspiracy of

the various named parties defendant, named in this,

her second cause of action, and your Plaintiff would

show unto the Court that the named parties defendant,

named in this, her second cause of action, acted in con-

cert together with the common, malicious, and wanton

reckless purpose with an intent to deprive and defraud

her of all her rights against the Defendant, The Retail

Credit Company, for their own mutual benefit and

their own individual benefit as well.

Because of which and all of which your Plaintiff

sues and demands damages, both actual, compen-

satory, punitive and exemplary.

THIRD CAUSE OF ACTION

Now, for a third cause of action, your Plaintiff

reavers and realleges each and every allegation as

hereinabove set forth and for a third cause of action,

18a

reserving all rights, and waiving none, avers that she

is entitled to relief as against the various named par-

ties defendant, all as named in her second cause of ac-

tion, which listing of names in incorporated herein by

reference to avoid needless repetition, and the Defen-

dant, The Retail Credit Company, for and because of

the conspiracy between the various named individual

parties, employees of the Defendant, The Retail Credit

Company, and the Corporate Defendant itself, Retail

Credit Company, and the various and other named

parties and unnamed parties individual and cor-

porate, because of the following facts, to-wit:

Your Plaintiff would show unto the Court that the

Retail Credit Company directs and orders its

employees, as well as its customers, under pain of

suffering discharge from employment and Law Suits

respectively, to engage in a course of conduct together

with one another and the body corporate Retail Credit

to act in conspiracy, in effect, to deceive persons such

as the Plaintiff from discovering any rights against

the Defendant, The Retail Credit Company, which the

various parties may have, and your Plaintiff would

show unto the Court that in fact, this is what hap-

pened in her case, and that a conspiracy did exist to

deprive her of her rights against The Retail Credit

Company as between the Retail Credit Company and

its employees, and customers. [emphasis added]

Your Plaintiff would show unto the Court that the

course of action, in conspiracy and concert, was of

such character and nature as would denote and con-

note malice and malicious conduct and wanton and

reckless disregard of the rights of your Plaintiff.

19a

Because of which and all of which your Plaintiff

sues and demands damages, both compensatory and

punitive of the parties defendant named and unnamed.

VIII

FOURTH CAUSE OF ACTION

And now for the fourth cause of action, your Plaintiff

reavers and realleges each and every allegation as

hereinabove set forth and for a fourth cause of action,

reserving all rights, and waiving none, avers that she

is entitled to relief against the Defendant, The Retail

Credit Company, and the other named and unnamed

defendants as enumerated hereinabove in the style of

‘this case, which list of names is incorporated herein

by reference, for the following facts, to-wit:

The Plaintiff would show unto the Court that

between the years 1961 and 1968, during which mostof

the conspiracy hereinabove mentioned ran its course,

save and except for the bearing of fruit which oc-

curred as late as August 16, 1972, there existed a

custom and usage in the State of Mississippi and the

United States under which mercantile credit reports

and the contents thereof, whether favorable or un-

favorable, were concealed from the person upon whom

the report was made, by both employees of the com-

pany and the companies themselves, as well as the

customers of the companies. The said companies who

concealed in concert with their employees and their

customers, were engaged in the business of producing

and manufacturing the said credit reports.

Now, your Plaintiff would show unto the Court that

during the years in which the conspiracy was in-

itiated, up to and until the years from 1961 forward, as

known at the present time to your Plaintiff, although

the conspiracy may have existed earlier, that until

1971, in the spring, that in the various states in the

United States and that in the State of Mississippi there

existed a defeasible, contingent privilege granted

either by the jurisprudence of the statutory law of the

various jurisdictions involved herein, to companies

preparing and manufacturing mercantile credit

reports, which jurisprudence and statutes give a

conditional qualified privilege to the said mercantile

credit reporting companies, their employees and cus-

tomers, thereby giving them the right to operate un-

der color of law.

Plaintiff brings this her fourth causeof action under

42 United States Code, Section 1983, 1985 and 1986.

Plaintiff charges that the defendants and each of

them, acting under color of law, in concert and con-

spiracy, both as individuals and as a body corporate,

did, during the period 1961 through 1968, conspire

against her, under color of law to deprive her of her

natural, God given rights and her rights under the

laws of the State of Mississippi, the Constitution ofthe

State of Mississippi, and the laws of the United States

and the Constitution of the United States in that they

did, to-wit:

Begin a conspiracy in the year 1961 which continued

through the year 1968, operating under color of law,

and, although your Plaintiff believes that it began in

2ia

1961 she is without definite knowledge of the initiation

date of the said conspiracy.

Your Plaintiff would show unto the Court that the

acts of the defendants caused your Plaintiff to be

deprived of business and social] intercourse by the

preparation and production and manufacturing of

erroneous, defective and faulty credit reports on her

person, character, and business ability.

Your Plaintiff would show that the persons to whoin

these credit reports were sent, the various customers

of the defendant, were under affirmative contract with

_ the defendant, expressed in writing, to conceal the

contents of the said reports from your Plaintiff, and

that they did act in concert and conspiracy under con-

tract with the various other parties defendant to con-

ceal the said report. The name and address of each of

these said parties defendant will be furnished the

Court by the Defendant, The Retail Credit Company,

upon appropriate discovery thereof. The Plaintiff will

initiate such discovery and incorporate such other

parties defendant under the various Does and Roes

upon discovery of the sxme. [emphasis added]

Your Plaintiff would show unto the Court that, ac-

ting under local] custom, and the force and authority of

law inasmuch as the same was sanctioned under the

jurisprudence and statutory law of the various juris-

dictions, that the defendants did engage in a course of

conduct which actually caused her to lose her busi-

ness, caused her to lose wealth, social intercourse,

personal advantages in life and denied her the pursuit

of happiness and the gainful pursuit of her employ-

ment all through the wanton and reckless disregard

for her peace of mind, her privacy, her God given and

Constitutionally endowed rights for the pursuit of

happiness in a normal life, and Defendants deprived

Plaintiff of property rights by destroying her busi-

ness and business opportunities.

Your Plaintiff would show unto the Court, that she is

entitled to damages as against the parties defendant,

named and unnamed for their unwarranted, unrea-

sonable and malicious conspiracy to deprive her of

her property rights and civil rights under color of law

and local custom, under the above and foregoing Civil

Rights Acts and the character of the acts of the Defen-

dants were such as would warrant the imposition of

punitive damages inasmuch as they were action in a

wanton, and malicious manner.

Because of which and all of which your Plaintiff

sues and demands damages, both compensatory and

actual, punitive and exemplary of the various parties

defendant, named and unnamed.

WHEREFORE, PREMISES CONSIDERED, your

Plaintiff would seek Judgment of this Honorable

Court of, from and against each and every one of the

various parties defendant Robert W. Biccum, J. W.

Miller, C. A. Grobe, G. O. Pittman, J. J. Curtis, T. E.

Drone, Charles L. Hammond, and Doe 1, Doe 2, Doe 3,

Doe 4, Doe 5, Doe 6, Doe 7, Doe 8, Doe 9, and Doe 10, all

individuals, and Retail Credit Company, inc., Roe 1,

Roe 2, Roe 3, Roe 4, Roe 5, Roe 6, Roe 7, Roe 8, Roe 9, and

Roe 10, Bodies Corporate, based upon the indicated

several and separate causes of action, because of

which and all of which your Plaintiff sues and

23a

demands damages both compensatory and punitive,

actual and exemplary of the various parties defendant

for their malicious and conspiratorial conduct.

WHEREFORE, your Plaintiff sues and demands

damages of, from and against the various parties

defendant for each and every cause of action and your

Plaintiff demands judgment against the individual

defendants, as well as all defendants jointly and

severally for the causes of action wherein each of them

is indicated as a defendant, in the sum of One Million

Dollars ($1,000,000.00) actual and compensatory dam-

ages, and the full sum and amount of an additional

One Million Dollars ($1,000,000.00) punitive and ex-

emplary damages, making the full sum total of Two

Million Dollars ($2,000,000.00) together with all costs

“of this proceeding for each and every one of the alter-

native actions as hereinabove stated in causes of ac-

tion One through Four.

WHEREFORE, your Plaintiff sues and demands

damages of, from and against the parties defendant as

enumerated and named in causes of action One, et seq-

uitur, for the conspiratorial activities of the various

named parties and each and every one of the several

causes of action, jointly and severally against each

and every one of the various parties defendant named

in the causes of action numbered one, et sequitur, in

the full sum and amount of One Million Dollars ($1,-

000,000.00) in actual and compensatory damages, and

the full sum and amount of One Million Dollars ($1,-

000,000.00) punitive and exemplary damages making

the full sum and total of Two Million Dollars ($2,000, -

000.00) together with all costs of this proceeding for

each and every one of the alternative actions as

hereinabove stated. Your Plaintiff demands judgment

of, from and against the defendants in the full sum and

amount of Two Million Dollars ($2.000,000.00)

Respectfully submitted,

MARY ELIZABETH WILSON

AND

W. ROBERTS WILSON, JR.

Attorney at Law

3132 Canty Street

P. O. Box 1507

Pascagoula, Mississippi

(601) 769-1247

BY:

/s/ W. Roberts Wilson, Jr.

W. ROBERTS WILSON, JR..,

of counsel

CERTIFICATE OF SERVICE

I, W. Roberts Wilson, Jr., attorney for Plaintiff, do

hereby certify that I have this day, mailed, postage

prepaid, a true and correct copy of the above and fore-

going Amended Complaint to the Honorable Webb

Mize, attorney for defendants, at his usual and

customary post office address of Suite 310, Gulf

National Bank Building, Gulfport, Mississippi, this

the /s/ 25th day of June, 1973.

/s/ W. Roberts Wilson, Jr.

W. ROBERTS WILSON, JR.

25a

OPINION OF THE COURT

In the United States District Court for the

Southern District of Mississippi, Southern Division

MARY ELIZABETH WILSON,

Plaintiff,

versus CA NO. 72S-304(R)

ROBERT W. BICCUM, Et Al,

Defendants.

Plaintiff, named above, a resident of Pascagoula,

Mississippi, filed her first suit in state court on or

about November 7, 1969, against Retail Credit Com-

pany, which, after removal to the U. S. District Court,

became Civil Action No. 3846, on the docket of this

Court. Her suit was for libel on account of a credit

report made by the defendant on or about September

13, 1963. In that action Judge Harold Cox sustained

defendant’s motion for summary judgment on the -

grounds that plaintiff's suit was barred by the Mis-

sissippi one year statute of limitations, Section 732,

Mississippi Code of 1942. The Court cited the com-

plained of portion of the credit report, finding that

there was nothing in the record to dispute defendant's

contention that the report was qualifiedly privileged,

finding that the report was made in good faith, and that

plaintiff's cause of action arose when the report was

received by the defendant’s customer and not when

plaintiff discovered its existence; hence the action was

barred. On plaintiff's appeal to the Fifth Circuit Court

of Appeals, that court sustained the District Court,

adopting the District Court’s opinion as its own.

Wilson v. Retail Credit Co., 438 F. 2d 1043.

26a

At the time of Mrs. Wilson's suit, her husband, W. R.

Wilson, filed a companion suit for libel, for invasion of

his privacy and for denial of his property rights in

violation of the Fifth and Fourteenth Amendments, all

based on Mrs. Wilson’s same credit report. By amend-

ment, Wilson complained of a credit report on him,

dated May 5, 1964. On defendant’s motion for summary

judgment, Judge Walter L. Nixon, Jr. to whom this ac-

tion was assigned, after reviewing the record, in-

cluding affidavits and depositions, found that any ac-

tion based on Mrs. Wilson’s credit report, was per-

sonal to her; both reports were made in good faith and

not wantonly or with reckless regard for the truth; also

found that the statute of limitations, whether for one

year (Section 732, Mississippi Code of 1942) or for six

years (Section 722, Ibid), had run; that Section 742,

Mississippi Code of 1942, providing that, in case of

concealment, the cause shall be deemed to have first

accrued when such fraud is discovered, was not

applicable, and sustained defendant’s motion. See

Wilson v. Retail Credit Co., 325 F. Supp. 460. Judge

Nixon, like Judge Cox, found that the reports were

confidential between Retail Credit and its customers,

and were qualifiedly privileged. Judge Nixon ruled

that the private use of these reports was not fraudulent

concealment. On plaintiff's appeal, the Fifth Circuit

affirmed the decision. 457 F. 2d 1406. While the cause

was pending on appeal, the Fair Credit Reporting Act,

15 U.S.C. §1681, et. seq. was enacted. The appellate

court considered its application and found that it was

not retroactive.

On or about January 12, 1972, Mrs. Wilson filed

another suit in the District Court, assigned to the un-

dersigned Judge, being Cause No. 72S-4(R), alleging

27a

that Retail Credit, from June 1961 up to and including

May 1964, had circulated libelous reports of her credit

rating. The complaint set out seven counts based on

libel per quod, invasion of privacy, and tortious in-

terference with property rights relied on in the earlier

suits, and included a count alleging that the reports

were a defective product placed by defendant in in-

terstate commerce, causing plaintiff great harm. On

Defendant's motion for summary judgment, based on

the pleadings, admissions, interrogatories and

answers, and affidavits, this Court found plaintiff's

charges unsupported by any factual recitations ex-

cept for a reference to a credit report of June 1961 and

the September 13, 1963 report. Prior to a ruling on the

motion, plaintiff filed leave to amend to add in-

. dividuals as party defendants for counts based on a

conspiracy, namely, Robert W. Biccum, J. W. Miller, C.

A. Grobe, G. O. Pittman, J. J. Curtis, T. E. Drone, and

Charles L. Hammond and Doe 1 to Doe 10. Because the

motion to amend was untimely, and obviously offered

to circumvent the previous court decisions, this Court

denied the motion for leave to amend without pre-

judice and dismissed the suit with prejudice.

{emphasis supplied]

Plaintiff felt compelled to appeal again, and again

the Appellate Court affirmed the decision of the Dis-

trict Court, 474 F. 2d 1260, holding that in view of her

previous action involving the same transactions and

the same legal rights, her action was barred by the

Mississippi doctrine of collateral estoppel, citing

Chief Justice Ethridge of the Mississippi Supreme

Court in Garraway v. Retail Credit, 141 So. 2d 727:

“Collateral estoppel is a doctrine which

operates following a final judgment, to es-

tablish conclusively a matter of fact or law for

the purposes of a later lawsuit on a different

cause of action between the parties to the

original action... . In short, where aquestion

of fact essential to a judgment is actually

litigated and determined by valid and final

judgment, that determination is conclusive

between the parties in a subsequent suit on a

different cause of action. Id. at 730.”

The Appellate Court added: “Every citizen is entitled

to his day in Court; however, our judicial sysiem was

not designed as an experimental laboratory to license

losing parties to bring vexatious and repetitive

claims based on the same transaction.”

In footnotes to the decision, the Appellate Court

noted that plaintiff's original action and that of her

husband were instituted on the theory of libel, and that

in the case then before the Appellate Court, plaintiffs’

case was grounded in products liability, misrepresen-

tation and deceit, invasion of privacy, and in-

terference with property and contract rights. The

Appellate Court then said: “Regardless of the dis-

ingenuous characterization, no new facts are alleged

in the present litigation which were not already decid-

ed by the previous suit.”’

Not in any manner daunted by these decisions,

plaintiff has filed her third action in the District Court,

now before the undersigned Judge, this time against

Retail Credit Company, seven individual employees

thereof, Doe 1 through Doe 10, and Roe i through 10,

ees ee

SS ns <A> —

designated as bodies corporate. Plaintiff claims

jurisdiction under 42 U.S.C. §§1983, 1985 and 1986. The

Court notes that these are not jurisdictional statutes,

but statutes granting a cause of action once jurisdic-

tion is established. The complaint is in four counts,

amended to add another defendant, Bobby Gann, anda

series of overt acts, each count alleging a conspiracy

among the named defendants to conceal from her in-

formation in Retail Credit’s files on which to base a

cause of action against that firm. Sheclaims that their

conspiratorial actions have impeded her from exer-

cising her legal remedies as late as August 16, 1972

when this Court dismissed her last suit, Cause No.

72S-4(R). She avers that the defendants were acting

under color of law in the State of Mississippi, Georgia,

Tennessee and other jurisdictions in their conspiracy

while protected by the qualified privilege granted by

these states and this Court, allowing them to conceal

from plaintiff her right to sue. She charges that Retail

Credit directs its employees, under pain of dismissal,

to engage in conduct with one another to deceive per-

sons such as plaintiff from discovering her cause of

action. She charges that unnamed customers of Retail

Credit were under a written contract to conceal the

contents of her credit report from her and also acted in

the conspiracy with the named defendants. She

charges that the individual defendants acted both un-

der the directions of Retail Credit and on their own in-

genious and personal initiative. She alleges that these

actions were wilful, wanton and malicious entitling

her to compensatory and punitive damages in the

amount of $2,000,000.00 under each count. By her

amended complaint, plaintiffhas alleged overt acts on

the part of individual defendants over a period of time

beginning October 25, 1963 to January 10, 1967,

30a

consisting of intra-office memos, which she alleges

were for the purpose of concealing her cause of action

based on the September 13, 1963 credit report.

As to the original complaint as well as to the

amended complaint, defendants have denied that

plaintiff has stated a claim upon which relief may be

had, have denied all material allegations, have pled

that the credit report of September 13, 1963, was

qualifiedly privileged, that the action is barred by

both the one year and six year Mississippi statute of

limitations, have pled collateral estoppel and res ad-

judicata by virtue of the decisions in her prior suits,

and laches inasmuch as she could have asserted her

conspiracy claims since the latter part of 1963, when

Judge Nixon found that she admitted knowledge of her

credit report.

Considerable discovery has taken place, plaintiff

having directed requests for admissions and in-

terrogatories to all the defendants but Gann.

Defendants have filed a motion to dismiss, and fora

summary judgment based on the pleadings, ad-

missions, answers to interrogatories and affidavits,

including affidavits from all individual defendants,

but Gann, that each, while employed by Retail Credit

during the years 1963 and 1964 and with respect to

plaintiff, were merely fulfilling their assigned duties.

Plaintiff has also filed a motion for a partial sum-

mary judgment on liability, supported by an allega-

tion against Gann, and the affidavits and deposition of

Len O. Holloway andthe affidavit of William F. Boaz to

the effect that Retail Credit had a policy of requiring a

Sila

percentage of its investigator's reports to be

derogatory. The Court has reviewed each of these

documents and finds that none are relevant or

material to this action. Plaintiff's affidavit in support

of her motion acknowledges that all her contacts with

any of the defendants were in regard to the 1963 credit

report on her and a May 1964 report on her husband.

Plaintiff's attorney's affidavit merely states that the

proposed amended complaint, denied by this Court in

Cause No. 72S-4(R) were in nature and substance, the

same as the allegations here.

As to defendants’ motion to dismiss and for sum-

mary judgment, both are well taken. The kind of state

action required under 42 U.S.C. §1983 certainly does

not contemplate case law of the State of Mississippi,

nor the decisions by this Court and the Fifth Circuit

recognizing the case law of Mississippi. Any and all

allegations alleging state action under 42 U.S.C. 1983

should therefore be dismissed with prejudice. Any and

all allegations pertaining to 42 U.S.C. §1986 should be

dismissed with prejudice as not occurring within one

year of the time this action was filed. Section 1986 has

its own one year limitation period. As to all the

allegations of the amended complaint, whether related

to Sections 1983, 1985 or 1986, 42 U.S.C., they are still

based on the credit report of September 13, 1963, which

all the decisions referred to herein have found was

qualified and any action arising out of or because of it

was barred by Mississippi's six year statute of

limitations.

Accordingly the motion for summary judgment is

well taken for the same reason given by the Fifth Cir-

cuit in its decision reported at 474 F. 2d p. 1261, that is,

collateral estoppel.

32a

An appropriate order may be submitted within the

time provided for by local rules, taxing costs to the

plaintiff.

/s/ Dan M. Russell, Jr.

UNITED STATES

DISTRICT JUDGE

DATED: /s/ Nov. 26, 1974

Mary Elizabeth Wilson,

Plaintiff-Appellant,

Vv.

Robert W. BICCUM, J. W. Miller, C. A. Grobe, G. O. Pitt-

man, J. J. Curtis, T. E. Drone, Charles L. Hammond and

Retail Credit Company, Defendants-Appellees.

No. 75-1033.

United States Court of Appeals, Fifth Circuit.

Feb. 3, 1977.

Appeal from the United States District Court for the

Southern District of Mississippi; Dan M. Russell, Jr.,

Chief Judge.

Before BROWN, Chief Judge, and JONES and

GOLDBERG, Circuit Judges.

PER CURIAM:

With undaunted perseverance reflected by at least

- -

ee BY mee 8

LO a

33a

four decisions in this Court,! Appellant, on a theory of

a conspiracy by defendants to conceal their fraud,

seeks to bring this case under 42 U.S.C.A. §§ 1983,

1985(3), and 1986. The District Court granted summary

judgment which we sustain. There is no adequate state

action so § 1983 is unavailable. The § 1985(3) falls be-

fore our en banc decision in McLellan v. Mississippi

Power & Light Co., 5 Cir., 1976, slip opinion p. ;

F.2d _._., rev’g., 526 F.2d 870. As to the asserted pen-

dent state claim no error has been demonstrated.

AFFIRMED.

United States Court of Appeals

Fifth Circuit

Office of the Clerk

March 10, 1977

TO ALL PARTIES LISTED BELOW:

No. 75-1033 — Mary Elizabeth Wilson v. Robert W. Bic-

cum, ET AL.

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition for rehearing, and no

member of the panel nor Judge in regular active ser-

vice on the Court having requested that the Court be

1 Wilson v. Retail Credit Co., 5 Cir., 1973, 474 F.2d 1260; Wilson v.

Retail Credit Co., 5 Cir., 1972, 457 F.2d 1406; Wilson v. Retail Credit

Co., §.D.Miss., No. 3846, Aff'd., 5 Cir. 1971, 438 F.2d 1043. Wilson v.

Retail Credit Co., S.D.Miss., No. 3846 was originally filed in the

Circuit Court of Harrison County, Mississippi, and was removed

to the District Court.

34a

polled on rehearing en banc. (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 12) the

petition for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

/s/ SUSAN M. GRAVOIS

Deputy Clerk

/smg

ce: Mr. W. Roberts Wilson, Jr.

Mr. Augusta Elliott Wilson

Mr. John B. Wilkes

Mr. Webb M. Mize

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.