Appendix — Howard v. Taylor

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ILED

SEP 28 1962

IN THE

ALEXAN DE § \ STEvas.,

Supreme Court of the Rnited Pater <-

October Term, 1982

82 -698 wee gram Cow. uA,

No.

WAYNE N. HOWARD and MICHAEL E. TRAUSCHT,

Petitioners,

WALTER ROBERT TAYLOR,

Respondent.

APPENDIX

TO PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MONBLEAU, VERMEIRE & TURLEY, P.C.

By Albert R. Vermeire, Counsel of Record

3443 North Central Avenue, Suite 1510

Phoenix, Arizona 85012

(602) 263-0532

Altorneys for Petitioner Howard

LOONEY, NICHOLS, JOHNSON & HAYES

By John B. Hayes, Counsel of Record

P. O. Box 468

Oklahoma City, Oklahoma 7310!

(405) 235-7641

Attorneys for Petitioner Trauscht

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

SLIP OPINION

UNITED STATES OF APPEALS

TENTH CIRCUIT

WALTER ROBERT TAYLOR, )

)

Plaintiff-Appellant, ) NO,

)

vs. )81-1215

)

KEVIN M. GILMARTIN, MICHAEL )

E. TRAUSCHT, WAYNE N. HOWARD, )

FREEDOM OF THOUGHT FOUNDATION, )

INC., JOSEPH ALEXANDER, ESTHER)

ALEXANDER, and GARY SCHARFF, )

)

De fendants-Appellees. )

Appeal from the United States

District Court For The

Western District of Oklahoma

(D.C. No. Civ-77-0351-D)

John C. McMurry, Oklahoma City,

Oklahoma. (Martha McMurry,

Oklahoma City, Oklahoma, with him

on the brief) for Plaintiff-Appellant.

William A. Johnson, Sanders, Boone &

Johnson, Oklahoma City, Oklahoma, for

Defendants-Appellees Gilmartin,

Freedom of Thought Foundation, Inc.,

Joseph Alexander, Esther Alexander, and

Gary Scharff.

John B. Hayes, Looney, Nichols,

Johnson & Hayes, Oklahoma City,

Oklahoma, for Defendant-Appellee

Trauscht.

Albert R. Vermeire, Monbleau, Vermeire

& Turley, Phoenix, Arizona, for

Defendant-Appellee Howard.

Before DOYLE and SEYMOUR, Circuit

Judges, and ANDERSON, District

Judge*.

DOYLE, Circuit Judge.

Honorable Aldon J. Anderson, Chief

Judge, United States District Court

for the District of Utah, sitting by

designation.

Appellant seeks reversal of sev-

eral judgments which grow out of the

entry of summary judgments.

The actions arise out of alleged

civil rights and common law clains.

The former arise under 42 U.S.C.

Sections 1983, 1985(2) and (3). The

complaint describes conspiracy to

commit legal malpractice, intentional

infliction of emotional distress,

false imprisonment and conspiracy to

commit assault and battery. The appeal

is pursuant to 28 U.S.C. §1291. The

essence of the case is an attempted

religious deprogramming effort

together with the means which were

employed to accomplish che objective.

The charges revolve around the par-

ticular circumstances which led up

to the deprogramming, the actual

techniques which were employed in

an effort to persuade the subject to

abandon the religion which he had

adopted.

All of this commenced when Taylor

took up residence in the monastery of

the Holy Protection of the Blessed

Virgin Mary, a local religious organ-

ization, in Oklahoma City, Oklahoma.

Appellant had reached the age of 21

when the deprogramming effort occurred.

Taylor's parents were opposed to his

joining the religion and in July of

1976 they took the action which led to

this cause. They employed an organ-

ization called the Freedom of Thought

Foundation, a corporation which carries

on the business of deprogramming

religious zealots. Deprogramming is a

process of attempting a psychological

shock treatment on members of non-

mainstream religious sects in an effort

to sever their involvement with a

religious cult lifestyle.

As part of the program, appellant's

father, through Freedom of Thought,

applied to the Oklahoma County District

Court to be appointed as “temporary”

guardian of the appellant. Appellees

Howard and Trauscht, lawyers for Dr.

Taylor, the father of appellant,

visited Judge John A. Benson, an

Oklahoma state district judge who was

temporarily assigned in Oklahoma City,

and conferred with him ex parte. They

asked him to hear the case. Benson

contacted the Probate Judge who would

ordinarily hear such a matter and ob-

tained permission to hear it. Only

after that was the petition for a

guardianship filed. Judge Benson

ordered the temporary guardian of

plaintiff's person be appointed in

order to determine whether plaintiff

was under the influence of a religious

cult. Judge Benson said that he wanted

the plaintiff taken into custody "so

that (plaintiff) could be given notice

of a [permanent] guardianship hearing.”

Plaintiff was at the monastery when the

deputies came for him. He offered no

resistance. The hearing occurred before

Judge Benson as soon as Taylor was

brought in to court. Although Judge

Benson found him to be normal, he

formally entered an “order appointing

Taylor's father as Temporary Guardian

of the Person.” The reason for the

Judge's action was

". . .the right of [Plaintiff's]

father and. . .family to know

[Plaintiff] decided. . .to spend

the rest of [his] life away from

them secluded in a monastery...

probably overrides any individual

right [Plaintiff] might possibly

have on a temporary basis.

to be free from. . .custody.”

PX 1 at p. 52

The July 15, 1976 order also

provided:

1. Notice of the time and place

of hearing is not required.

2. Dr. Walter Taylor is appointed

the Temporary Guardian of the

Person of Petitioner's child,

to-wit: Walter Robert Taylor and

that temporary Letters of

Guardianship issue.

3. The Temporary Guardian of the

person shall have power to: (a)

take said proposed ward into

Petitioner's personal custody to

have proposed ward counselled,

examined, and treated by persons

including, but not limited to

physicians, psychiatrists, psycho-

logists, social workers and lay

persons; (b) to keep said ward in

Petitioner's custody, even in the

event said ward wishes to leave

said custody; and (c) such further

powers as are necessary to exercise

those above granted.

4. Purther hearing in this matter

will be held at August 13, 1976 at

3:00 P.M. at which time the ward is

directed to show cause if any the

ward has, why the Petitioner, Dr.

Walter Taylor, should not be

appointed permanent Guardian of

the ward's person,. . .

On the basis of the order hereto-

fore cited, plaintiff was taken that

same day, that is July 15, 1976, from

Oklahoma City, Oklahoma to Akron, Ohio.

He was not examined by physicians or

psychiatrists. The only examination

occurred on July 24 which was performed

by Dr. Gilmartin, a psychologist, with

apparently some experience in treating

cult members. Taylor was held for

approximately one week in Akron where

he was kept at a motel and under con-

stant guard. There followed the depro-

gramming. Taylor testified that he was

abused in the following manner:

1. The defendants yelled at him

constantly.

2. The deprogrammers worked in

shifts or crews.

3. They said that they would have

him tracked down by the state

patrol if he escaped; that they

would have him thrown in jail

and deprogrammed in jail.

4. The deprogrammers threatened

to have the police close down

plaintiff's monastery; to have the

temporary guardianship made

permanent and to have the depro-

gramming continue indefinitely,

to have plaintiff committed to a

mental institution and to beat him.

5. He was deprived of sleep and

was told that he would be subject

to shock treatment. He suffered

severe gastritis, diarrhea and

abdominal cramping and when he

complained, the deprogramming

seemed to intensify.

6. They threw cold water on him,

shined a light in his eyes, tore

his clothing off, cut his hair and

beard and they told him they called

friends and religious leaders from

a list plaintiff had given them of

people who would vouch for him, and

they stated that the friends

reported his religion was not

legitimate. The deprogrammers

indicated the pressure would cease

if plaintiff would renounce his

religion.

On July 23rd or 24th, 1976, plaintiff

was taken from Akron to Phoenix, Arizona,

where apparently his mother was

Staying. He was held, still under

guard, for the rehabilitation phase

of the deprogramming. However, he

escaped July 31, 1976 and returned

to Oklahoma City and to the seminary.

He has been there ever since. The

record does not indicate that any

effortwas made to remove him from the

seminary after this. Subsequently,

Taylor instituted this present suit

in the United States District Court

for the Eastern District of Oklahoma

against not only the deprogrammers,

but also his parents and his brother.

However, the Taylor family members were

dismissed by an agreement prior to

trial. The deprogrammers remain.

In his complaint Taylor sought

damages compensatory and punitive. On

December 30, 1978, the trial judge

entered an order dismissing the § 1983

claim on the ground that the complaint

failed to allege that the defendants

acted under color of state law. The

court rejected the defendants’ conten-

tion that use of the Oklahoma state

court for Dr. Taylor's appointment as

temporary guardian and plaintiff's

seizure by local police was tantamount

to state action. The reason was that

the Oklahoma judge and the police were

ruled not to be members of any con-

spiracy with defendants, in that they

did not share common goals; neither

were they charged as defendants. How-

ever, on the same day the court

granted partial summary judgment

dismissing the claim for conspiracy

to violate Taylor's civil rights

pursuant to § 1985(3). The lower

court noted that in Griffin v.

Breckenridge, 403 U.S. 88 (1971), the

Supreme Court held that § 1985(3)

encompassed a private conspiracy to

violate thirteenth amendment rights

and the right to interstate travel.

However, the claim below failed

because, as the court saw it,

Congress did not have the power to

reach a private conspiracy to violate

rights protected under the fourteenth

amendment. The judge rejected

plaintiff's argument that § 5 of the

fourteenth amendment provided the

Congressional power.

A third cause of action was dismissed

on December 30 of the same year. This

was the legal malpractice claim against

Wayne Howard and Michael Trauscht.

Taylor's claim was that Howard and

Trauscht, as attorneys, participated

in experimental psychological treat-

ment on plaintiff, filed an illegal

guardianship proceeding in Arizona

and lied to the Oklahoma court. The

lower court found no attorney-client

relationship between these defendants

and Taylor and continued that this, as

a matter of law, could not result in

liability.

On December 28, 1979, the trial

court granted a partial summary

judgment for defendants on the con-

spiracy cause of action with respect

to obstructing justice pursuant to

42 U.S.C. § 1985(2). The court's

reasoning was the same as in the order

on the §1985(3) conspiracy claim. The

orders entered on December 30, 1978 and

December 28, 1979 were made applicable

to all defendants by the order of

July 8, 1980.

The matter of intentional infliction

of emotional distress, which was also

charged in the complaint, was disposed

of on directed verdict. The court said

that reasonable minds could not differ

that defendants’ conduct was not so

extreme and outrageous as to call for

recovery. Similarly, a directed ver-

dict was granted to the defendants on

the false imprisonment claim because

the Oklahoma state court's temporary

guardianship order was ruled proper.

The jury returned a verdict in

defendants’ favor on the one count

that was submitted to the jury, the

assault and battery claim which would

appear to have been the weakest claim

in the entire complaint in that there

was no evidence indicating that assault

and battery in the ordinary sense

occurred.

We take up on appeal the propriety

of the trial court's directed verdict

on the tort claim of false imprisonment

ane intentional infliction of emotional

distress, as well as the summary

judgment orders on the civil rights

statutes.

THE INVALIDITY OF THE STATE

GUARDIANSHIP ORDER

The Oklahoma law is very specific

regarding the appointment of guardians.

See Title 58 §§ 851-52. Section 851

provides that any relative or friend

of the proposed ward can petition the

court as to the insanity or mental

incompetency of the ward. Notice must

be given to the alleged incompetent

and to a near relative at least five

days before the hearing. The form of

notice to the near relative is at the

court's discretion, however; the

statute does not provide for the

manner of notice to be given to the

ward. Under § 852 a guardian may be

appointed only after a full hearing

where it appears to the judge that

the alleged incompetent is incapable

of “taking care of himself and

managing his property.” When using

the terms "mentally incompetent”,

“incompetent” and “incapable”, as

above, these are defined as including

one who is not adjudicated insane but,

because of old age, disease, weak-

ness of mind or other reasons, is

unable without assistance to

adequately care for his person or his

property and, therefore, could be

deceived by artful or designing persons.

In Re Guardianship of Bogan, 441 P.2d

972 (Okla. 1968). Appellees’ petition

in the state court did allege that

Taylor was incompetent under the

definition of Bogan. However, at the

temporary guardianship hearing no

evidence was adduced from Dr. Tavlor

that Walter was unable to take care of

himself or his property or that he had

any property that others could by trick

or deceit remove from his control.

Indeed appellant testified that the

monastery took none of his assets. Dr.

Taylor testified that the monastery

took everything his son had but did not

detail what this may have been. It

seems evident that appellant did not

have or give over to the monastery

any assets of substantial value. There

is no need to decide whether the

guardianship order under § 852 was

inappropriate because of lack of

evidence as to mental infirmity, for

there are serious jurisdictional

errors to be considered.

The case of Tiger v. McCallom,

89 Okla. 249, 214 P. 194, 195 (1923)

holds that Oklahoma law is settled

that the appointment of a guardian

is uniquely a creature of statute.

In the absence of full compliance

the court lacks jurisdiction and

the order is void. See Martin v.

O'Reilly, 81 Okla. 261, 200 P. 687

(1921). There is no Oklahoma law

to be found allowing a temporary

guardianship of an adult such as was

carried out by Judge Benson. The

section referred to above, § 851,

requires five days notice prior to the

guardianship hearing. Appellees con-

tend that Taylor received thirty days

notice because J .7ye Benson personally

notified appellant when he was before

him that the permanent guardianship

would be held thirty days hence. That

does not cure the failure to give notice

of the initial hearing appointing a

temporary guardian. That is just one

of the problems with it. However, the

real issue is the inadequacy of the

hearing and the temporary order that

was issued. The only conclusion to

be drawn is that Judge Benson's

action was beyond the statutes and

was void from the very beginning. The

court, as we view it, acquired no

jurisdiction to hear this proceeding

under § 852 until the five days notice

had lapsed. In Re Winnett's

Guardianship, 112 Okla. 43, 239 P. 603

(1925).

It is the position of the appellees’

that Okla. Stat. Tit. 43A, § 55 gives

broad powers to a district judge to

order temporary guardianship while a

competency determination is made.

This is not so. Examination of this

statute in the light of the procedures

employed by Judge Benson shows that

under no stretch of the imagination

does § 55 serve to shield appellees.

As originally enacted in 1956 § 55

permitted the court to detain the

alleged mentally ill person "in some

suitable place” for up to thirty days

until his petition was heard. Such

temporary detention could only be

brought about if there was testimony

satisfying the judge that the individ-

ual was violent or that he would

injure himself. The 1975 amendment to

§ 55 altered the temporary detention

language. As this statute stood at

the time of Taylor's hearing, on

July 15, 1976, the court was empowered

to detain appellant in some appro-

priate medical facility in the county

where proceedings were pending for no

longer than seventy-two hours,

ircluding Saturdays, legal holidays

and when the district court was not

officially in session. But this could

be done only if it was shown, as had

been true under the 1953 act, that

the alleged mentally ill person was

violent or might injure himself or

others.

Apart then from the failure to

comply with the temporary detention

requirements of § 55, it is plain that

the hearing in Judge Benson's court

was not styled as a mental health

hearing to determine whether Taylor

should be committed to the state mental

hospital or to a private facility, as

required by statute. Apparently the

judge fashioned this order to suit

something that was not even provided

for in any statute. Appellees’

petition to Judge Benson, as mentioned

above, invoked only the language of

58 0.S. § 851. Section 55 requires a

petitioner to seek an order directing

the hospitalization of one who is

asserted to be mentally ill.

Committment was not a subject even

mentioned at the temporary hearing.

Section 55 requires that upon

receiving the petition the court

appoint a sanity commission under

§ 54, Title 43A. This commission

is to be composed of two qualified

examiners and one licensed actively

practicing attorney and is to

certify its findings on the mental

health of the person under examin-

ation. Judge Benson, of course,

appointed no sanity commission.

The judge considered the guardianship

order to be for the purpose of

determining whether Taylor had been

brainwashed in the monastery, not

whether he was mentally ill and should

be hospitalized, an objective which,

of course, is not provided for in any

Oklahoma statute. If Taylor had been

committed pursuant to §§ 54 and 55

under the procedures observed by the

state court, the commitment would have

to be reversed for the failure to

follow the procedures of these sections.

This failure is not harmless error.

In Re D.B.W. 616 P.2d 1149 (Okla. 1980).

Due to the fact that no statutory juris-

diction gave rise to this temporary

guardianship order and due also to the

fact that there was no proper notice,

even were we to assume authority for

the proceeding, the order is void.

THE VALIDITY OF THE

FALSE IMPRISONMENT CLAIM

The trial court directed a verdict

for the appellees on the false imprison-

ment claim and the reason for that

was the trial court's determination

that Judge Benson's temporary

guardianship order was proper; that

any imprisonment could not be false

in view of the lawfulness of the

order. We must disagree with the

action taken by the trial court.

The argument of the appellees is

that the false imprisonment claim is a

collateral attack on the temporary

guardianship orders. Where a judgment

appointing a guardian appears to be

regular on its face, so it is argued,

there is jurisdiction for such an order

and it cannot be attacked collaterally.

The case that is cited is Bartlett v.

Bell, 257 P.309 (Okla. 1927).

Concededly, though, where the order is

void on its face, a collateral attack

is permissible. Mock v. Stricklin,

315 P.2d 247 (Okla. 1957). in the

case before us the facts are such as

to support the conclusion that there is

a lack of jurisdiction and voidness in

Judge Benson's order. The temporary

guardianship order no longer exists.

It was dissolved by Judge Benson on

August 19, 1976. There remains, however,

the question whether the order pur-

porting to create a temporary guardian

shields the deprogrammers from legal

action.

It is, of course, fundamental that

an action for false imprisonment

arising from a committment or guardian-

ship order is not cognizable where there

has been regular and legal process

observed, where the order is regularly

issued with authority to issue the

order and lawfully executed. In the

A person who causes the arrest of

another in a civil proceeding

must answer in damages even though

the arrest was in pursuance of an

order of court, when the court

issuing the order has exceeded

its jurisdiction, or had no

authority to do so.

1. Guzy v. Guzy, 16 Misc. 2d

975, 184 N.Y.S. 2d 161 (1959),

aff'd. 11 App.Div. 2d, 206 N.Y.S.2d

355 (1960); Mezullo v. Maletz,

331 Mass. 233, 118 N.E.2d 365

(1954); Dedrick v. Durham, 136

Wash. 265, 239 P.385 (1925). See.

Yahola v. Whipple, 189 Okla. 583,

118 P.2a 395, 397 (1941).

decision of the Oklahoma court in Yahola

v. Whipple, 189 Okla. 583, 118 P.2d

395, 397, the court said: Process is

regular on its face when it comes from

a court with authority to issue process

of the kind in question, is legal in

form and contains no signs that would

fairly apprise one that such process is

issued without authority. Jackson v.

Osborne, 116 Cal. 2d 875, 254 P.2d

871, 876 (1953).

From a consideration of the

statutes of Oklahoma in relationship

to Judge Benson's order, it must be

concluded that under those applicable

statutes such a temporary guardian-

ship order imposed on an adult was,

and is, beyond the state court's

power. An unauthorized judicial command

furnishes no protection to those who

act under it. Weigel v. Brown,

194 F. 652, 656 (8th Cir. 1912).

In view of the fact that this order

was void, the false imprisonment

claim should have been submitted to

the jury.

THE CLAIM OF INTENTIONAL

INFLICTION OF EMOTIONAL

~ DISTRESS CAUSED BY

~~ DEPROGRAMMING

The plaintiff relies on the follow-

ing to show that the conduct of the

deprogrammers was extreme and out-

rageous. He points to his having

been forcefully and against his

2. Appellant argued below that

the order of Judge Benson was void

because Taylor was not permitted

counsel of his choice, a man

connected with the Old Catholic

monastery. Moreover, Taylor claims

that the state court's order was

void because a second state judge

later countermanded Judge Benson's

temporary guardianship order. In

view of our decision on the false

imprisonment claim, we need not

address these alternative grounds

for decision.

will, removed from his chosen environment

and removed also to another state and

to his being kept there for a period

of several days while they went through

this deprogramming. He also relies on

the evidence described above having to

do with the rough and cruel treatment

which he claims to have received.

Appellant argues that the depro-

grammers’' threats and actions for a

week in trying to force him to give up

his faith were as severe as any example

of intentional infliction of emotional

distress that the Second Restatement of

Torts § 46 gives. Thus, there is one

example in the Restatement involving

the practical joker who falsely told

his wife that her husband had been

badly injured. This was shown in

the Restatement as being outrageous

conduct. Id., Comment d, illustration l.

The trial court relied on Breeden v.

League Services, Corp., 575 P.2d 1374

(Okla. 1978) as supporting his order

directing the verdict on the issue of

extreme conduct. The Breeden court

held that a collection agent's conduct

was not outrageous where he mailed

three letters to the debtor's home and

called her at work once. He attempted

to reach her by phone several times.

He spoke to her only once and used

abusive language. However, it cer-

tainly is arguable that the conduct

that was present in the Breeden case

was far less abusive and excessive

than the conduct here. Oklahoma law

requires an initial determination that

the conduct was extreme and outrageous

before the court has to decide if the

evidence supports a finding of severe

emotional distress existed. The trial

court held that the case at bar did not

get beyond the first hurdle. Appellees

paint a picture of the deprogramming

process as being therapeutic. They claim

that it provided psychological help to

Taylor to be exposed to a discussion of

his religious beliefs. They maintain

that all the actions were pursuant to

court order. Their claim is that there

was no intentional or reckless conduct

on their part designed to inflict

severe emotional distress. This course

of conduct was just Taylor's parents

acting through the appellees to cure

their son.

The trial court directed a verdict

against Taylor on the intentional inflic-

tion of emotional distress because he

did not think that deprogramming per

se was sufficient to constitute the

outrageous conduct as required by

the case of Breeden v. League Services

Corp., 575 P.2d 1374 (Okla. 1978).

The trial judge also said that he did

not “think that the conduct of the

defendants in carrying out their

efforts, as shown by the evidence,

constituted outrageous conduct.”

This loses sight of the fact that

a trial court may direct a verdict

only where the evidence and all the

inferences from it are so clear that

reasonable minds could not differ

on the conclusion to be drawn. Taylor

v. National Trailer Convoy, Inc.,

433 F.2d 569, 571-72 (10th Cir. 1970).

It is incumbent on the trial judge to

view the evidence in the light most

favorable to the non-moving party.

Swearingen v. Sears, Roebuck & Co.,

376 F.2d 637, 639 (10th Cir. 1967).

All of the evidence on both sides of

the case ought to be considered in

making this decision because eventually

the court is going to have to pass on

it and evaluate it. Christopherson v.

Humphrey 366 F.2d 323, 325 (10th Cir.

1966). The court is not at liberty to

disregard the evidence on behalf oi

the plaintiff in the case. The jury is

entitled to weigh conflicting evidence

and inferences and determine the

credibility of witnesses. The court

should accept as true the evidence of

the non-moving party. Anderson v.

badspeth Pine, Inc., 299 F.2d 874

(10th Cir. 1962).

Oklahoma has adopted § 46 of the

Restatement of Torts which recognizes

the tort of intentional infliction of

emotional distress and it is for the

trial court to determine whether the

defendant's conduct is so extreme

and outrageous as to permit recovery.

Where reasonable people may differ, the

jury is to decide if the conduct “has

been significantly extreme and out-

rageous to result in liability." The

court must decide if severe emotional

distress occurred. The Breeden court

upheld a grant of summary judgment

against the plaintiff where, as noted

above, she had been harassed by a

collection agency's letters and phone

calls. This was not comparable to

this case involving, as it does, kid-

napping, imprisonment and severe

harassment. Breeden is not comparable

to the case at bar. The appellant was

not only taken into custody by sheriff's

officers and removed to the court, but

he was also taken to Ohio for the pur-

pose of this deprogramming effort. He

was kept in a motel for over a week

while the deprogrammers did their worst

to clear his mind of any desire to

continue with his religion. They

threatened to have the guardianship

continue indefinitely and concomitantly

to continue deprogramming him for as

long as necessary. He was threatened

with committment and beatings. He

claims he suffered physical sickness

during the time that he was being de-

programmed because of their actions

and threats. His statements are not

corroborated by any of the deprogramming

team. Obviously they are not going to

concede anything of that kind. His

testimony is entitled to the weight of

any other witness. His credibility is

for the jury.

In Breeden the court said "the

outrageous or extreme conduct required

may arise from abuse of a position or

apparent authority over another."

575 P.2d at 1377. Here we have that

factor. They had at least apparent

authority over him and they may have

believed, indeed they hoped, that

their actions were under the protection

of the court. They were taking

advantage of tre temporary guardian-

ship order to alter his way of life by

psychological shock treatment. This was

a clear abuse of trust in addition to

the excessive conduct.

The law on this intentional inflic-

tion of emotional distress is relatively

meagre. In Reeves v. Melton, 518 P.2d

57 (Okla.Ct.App. 1974), the court held

that an emotional distress claim was

proper where the defendant terrorized

the plaintiff over a disputed payment

on a television. Testimony on behalf

of the plaintiff was that the defendant

threatened to kill the dogs at her house

and banged on all her doors and windows

and lunged at the front door in an

attempt to break in. In Bennett v.

City National Bank and Trust Co.,

549 P.2d 393 (Okla.Ct.App. 1976) a

bank officer threatened to ruin a

plaintiff's credit and made a series

of threatening phone calls over a debt

owed the bank of Bennett's son.

Plaintiff suffered physical anxiety

and distress because she had bought

many items on credit and she was

afraid defendant would carry out his

threat. This was held to be sufficient

to give rise to a claim for emotional

distress.

In Munley v. ISC Financial House,

Inc., 584 P.2d 1336 (Okla. 1978) the

Breeden decision was followed. However,

the defendant's behavior in Munley as

in Breeden was mild compared to that

which was found in Bennett and Reeves.

ISC Financial House was seeking to

track down plaintiff's husband about a

debt by coming to her home repeatedly

to ask about Munley and by contacting

plaintiff's neighbors and her former

employer.

Finally, the value of the Breeden

decision is solely for providing a test

to judge the appropriateness of

sending this claim to a jury. It is

the facts of a case which dictates the

application of this test. This count

should have been submitted to the jury.

DID THE COURT ERR IN DISMISSING

“THE CLAIM WHICH AROSE UNDER

42 U.S.C. §

The order dismissing the § 1983

claim must be affirmed. The color of

law requirement which is part and parcel

of § 1983, Adickes v. S.H. Kress & Co.,

398 U.S. 144, 150 (1970), is not satis-

fied under the facts of the case. It

is impossible to say that the use of

the court as part of the scheme, as

occurred here in this case, is enough

to constitute state action. The

court was not a part of the conspiracy.

At most the conspirators made use of the

court in an effort to obtain some

official appearance. The court allowed

itself to be used without fully

realizing the results which would

follow.

In Torres v. First State Bank of

Sierra County, 588 F.2d 1322, 1326

(10th Cir. 1978) it was held that

there was no state action involved in a

suit between private litigants where

the state merely furnishes the forum.

In the Taylor case the complaint stems

from the order of temporary guardian-

ship by the Oklahoma court. The judge

is not a defendant, nor is any state

officer, nor can it be said that the

judge was a conspirator. Section 1983

just does not apply. See Flagg

Brothers, Inc. v. Brooks, 436 U.S. 149

(1978) .°

3. We have examined the recent

opinion of the United States Supreme

Court in Lugar v. Edmondson Oil

Co., 42 S.Ct.Bull. (CCH) B3884

(June 25, 1982). In Lugar,

Justice White, speaking for five

members of the Court, held that a

§ 1983 claim is made out when the

deprivation of a federal right is

attributable to the state. Such

attribution can only be shown if

1) a deprivation is caused by the

exercise of a right or privilege

created by the state or by a rule

of conduct imposed by the state or

by a person for whom the state is

responsible and 2) the party

charged is a “state actor." One

is said to be a state actor if one

is a state official or a private

person who acted together with or

obtained significant aid from a

state official or where there is

conduct otherwise chargeable to

the state.

The majority held that petitioner

Lugar's claim that Virginia's

prejudgment attachment statute

was constitutionally defective

fulfilled the “under color” of law

requirement. A second due process

count alleged that the state court

denied Lugar procedural due process

by its unlawful acts contrary to

state law. The under-color-of-

law language was not satisfied

by this claim because, if true,

respondent, Edmondson Oil, acted

contrary to articulated state

policy: "That respondent invoked

the statute without the grounds

to do so could in no way be

attributed to a state rule or

decision.” Id. at B3903. There-

fore, even though a private party's

joint participation with state

officials can label one as a state

actor, a state court's action in

violation of state law cannot be

remedied by § 1983 where only a

private party is charged.

THE CLAIMS UNDER 42 U.S.C.

§ and (

In support of claims under

subsections 2 and 3 of § 1985 plaintiff

alleges that the defendants conspired

to and did deprive him of the equal

protection of the laws of the United

States, including plaintiff's right to

freedom of religion and association and

his right not to be deprived of his

liberty without due process, by the

wrongful use of the judicial system

and the sheriff's office in Oklahoma

County, Oklahoma. The purpose of the

conspiracy, according to the allegations,

was to coerce plaintiff into changing

his religious beliefs and

3. (con't.) In the case before

us, we do not read Taylor's

complaint to allege that Oklahoma's

guardianship statute is constitu-

tionally defective. Rather, the

gravamen here is that Judge Benson

acted in contradiction to state

procedures. Under the recent

ruling in Lugar our views on § 1983's

applicability in this situation

are unchanged. We note in passing

that the majority limited Lugar to

the factual situation where a pre-

judgment attachment order is at

issue. Id. at B3902 n. 21.

4. (2) [I]£ two or more persons

conspire for the purpose of impeding,

hindering, obstructing, or defeating,

in any manner, the due course of

justice in any State or Territory,

with intent to deny to any citizen

the equal protection of the

laws. . «3

(3) If two or more persons in any

State or Territory conspire. ..

for the purpose of depriving, either

directly or indirectly, any

person or class of persons of the

equal protection of the laws, or

of equal privileges and immunities

under the laws;. . .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 furtherance of the

object of such conspiracy, whereby

another is injured in his person or

property, or deprived of having and

exercising any right or privilege

of a citizen of the United States,

the party so injured or deprived

may have an action for the recovery

of damages occasioned by such

injury or deprivation, against any

one or more of the conspirators.

practices. Further allegations are that

defendants conspired to impede, hinder,

obstruct and defeat the course of

justice in the state court of Oklahoma

by obtaining an illegal temporary

guardianship based on false represen-

tations, and in Arizona by maliciously

filing redundant and superfluous

guardianship proceedings based on false

allegations that no guardianship pro-

ceedings were pending elsewhere. The

trial court rejected the above-described

claims, doing so by granting the defen-

dants’ motion for summary judgment.

Both counts under § 1985(2) and under

§ 1985(3) were dismissed even though the

court conceded that the plaintiff's

allegations were within the broad

language of both § 1985(2) and (3).

The court concluded that there was a

lack of power to reach the private

conspiracy so alleged. The district

court determined that although

Taylor's complaint described a cognizable

claim under § 1985, there was a lack of

congressional power to reach the type

of injury or wrong that was alleged.

The parts of § 1985(2) and (3)

relevant to this case derive from the

original § 2 of the Civil Rights Act

of 1871, 17 Stat. 13 (1871). See

Kemble v. D.J. McDuffy, Inc., 648

F.2d 340, 344 & n.5 (Sth Cir. 1981).

For this reason, the same general

analysis applies to the two sections.

See Smith v. Yellow Freight Systems,

Inc., 536 F.2d 1320, 1323 (10th Cir.

1976). Because there is a dearth of

decisional law interpreting § 1985(2),

our primary focus will be on § 1985(3).

What are the facts that are present

here to support this theory? They are

alleged by the plaintiff in his complaint,

namely his right to freedom of religion

and association, and his right not to

be deprived of his liberty under due

process of law by the wrongful use of

the judicial system and the sheriff's

office in Oklahoma County, Oklahoma.

It will be recalled that the

defendants approached a state district

judge who was temporarily serving in

Oklahoma City and that judge upon being

told of the problem authorized the

issuance of an order to bring the

plaintiff into court. Officers from

the sheriff's department were employed

to execute the order. Thereupon a

hearing was held in the district court

even though there was no statute pro-

vided for hearing under these circum-

stances, that is to say where the

individual involved, the plaintiff,

had not committed a crime or was not

shown to be insane. Nevertheless the

judge fashioned a remedy to cover the

situation. He brought the plaintiff,

Taylor, in and conducted a hearing and

following that hearing delivered Taylor

into the custody of the defendants in

order for them to work their magic on

him to deprogram him. A further allega-

tion is that the defendants conspired

to obstruct and impede the due

course of justice in the state court by

obtaining an illegal temporary guardian-

ship based on false representations and

doing somewhat the same thing in Arizona.

Griffin v. Breckenridge, 403 U.S. 88,

102-03 (1971) sets forth the requirements

that must be met by a plaintiff seeking

to state a claim under § 1985(3):

To come within the legislation

a complaint must allege that the

defendants did (1) ‘conspire or

go in disguise on the highway or

on the premises of another' (2)

‘for the purpose of depriving,

either directly or indirectly,

any person or class of persons

of the equal protection of the

laws, or of equal privileges and

immunities under the laws.’ It

must then assert that one or more

of the conspirators (d) did, or

caused to be done, ‘any act in

furtherance of the object of

{the] conspiracy,’ whereby another

person was (4a) ‘injured in his

person or property’ or (4b)

‘deprived of having and exercising

any right or privilege of a

citizen of the United States.'

All of the first, third and fourth

elements are clearly present and

the trial court so found. If some

of the defendants were not members

of the conspiracy, then that is a

matter that should be decided by the

jury at the trial. Certainly they

joined in the action that took place

and many acts were done in furtherance

of the alleged conspiracy, including

the obtaining of the guardianship and

the conducting of the deprogramming.

Plaintiff's allegation of injuries

surely satisfies the fourth element.

The issue is whether the second element

quoted above is established. This

requires a purpose to deprive any

person of the equal protection of the

laws, or of equal privileges and

immunities under the laws. Griffin

construed it as having two parts: a

"racial, or perhaps otherwise class-

based, invidiously discriminatory

animus," which "aim[s] at a deprivation

of the equal enjoyment of rights

secured by the law to all." 403 U.S.

at 102.

Is there a class-based invidious

discrimination under the meaning of the

Griffin decision? It should be empha-

sized that these defendants are pro-

fessionals. They perform this service

for money and they spend a significant

amount of time on it. The record shows

that and certainly their conduct is

odious and has the effect of depriving

the victim of important rights - his

liberty, his freedom, his right to

practice his religion, among other

rights.

The Court in Griffin did not hold

that only a racial bias would satisfy

the requirement of class-based invidious

discrimination. 403 U.S. at 102, n. 9.

Justice Stewart left this question open.

In Silkwood v. Kerr-McGee, 637 F.2d 743,

748 (10th Cir. 1980), we noted that the

legislative history of the 1971 Civil

Rights Act, the source of § 1985(3),

contains an explanation by Senator Edmunds

of the type of conspiracies to be

remedied by the Act:

We do not undertake in this bill

to interfere with what might be

called a private conspiracy

growing out of a neighborhood

feud of one man or set of men

against another to prevent one

getting an indictment in the

State courts against men for burn-

ing down his barn; but, if ina

case like this, it should appear

that this conspiracy was formed

against this man because he was a

Democrat, if you please or because

he was a Catholic, or because he

was a Methodist, or because he

was a Vermonter,. . .then this

section could reach it.

Cong. Globe, 42d Congress, lst. Sess.

567 (1871) (emphasis added). Such

language clearly encompasses an

“irrational and odious class dis-

crimination based on national origin

or religion.” Arnold. Tiffany,

359 F.Supp. 1034, 1036 (D.C. Cal.),

aff'd on other grounds, 407 F.2d 216,

218 (9th Cir. 1973), cert. denied,

415 U.S. 984 (1974).

In the present case the trial

court concluded:

{A] fair and reasonable reading of

plaintiff's complaint demonstrates

that the defendants singled out

plaintiff because of his status as

a member of the Old Catholic Church,

and not because of his individual

beliefs. In other words, this

class status is not created by

the mere fact that plaintiff

possesses the right to freedom of

religion, as do all persons,

but rather by the fact that he is

a member of a fringe or minority

religious group. It is the

defendants’ abhorrence of that

group that motivates them to de-

program individuals such as

plaintiff.

The record before the court at the time

of the summary judgment motions bears

out is conclusion. The record certainly

supports the statement of the trial

judge immediately above. As an example,

in its application for an exemption

under the Internal Revenue Code, the

Freedom of Thought Foundation responded

to a question regarding its area of

public interest or concern: "The

illegal and immoral techniques used

by so-called Religious Cults to induce

mind control and brainwashing of young

adults. . ." Dep. of Michael E.

Trauscht, Ex. 3.

Other courts have reached a

similar conclusion. See Baer v.

Baer, 450 F.Supp. 481 (N.D.Cal. 1978),

491. See also Ward v. Connor,

657 F.2d 45, 47-48 (4th Cir. 1981);

Rankin v. Howard, 457 F.Supp. 70, 74

(D. Ariz. 1978); but see Weiss v.

Patrick, 453 F.Supp. 717, 723-24

(D.R.I. 1978).

We conclude as did the trial

court that there is adequate evidence

of the type of class-based, invidiously

discriminatory animus envisicned in

Griffin to overcome a motion for summary

judgment. Whether the defendants were

in fact motivated by the alleged animus

against religious minorities is, of

course, a question for the jury.

In Griffin, Justice Stewart,

speaking for the Court, held that the

absence from § 1985(3) of the phrase

“under color of any statute, ordinance,

regulation, custom or usaege, of any

state. . ." which is present in § 1983

distinguished these two statutes so that

§ 1985(3) circumscribed private con-

spiracies. Once this determination was

made, the Court then examined Congress’

power to constitutionally reach such

private conspiracies. Two sources were

found: § 2 of the thirteenth amend-

ment, and the right of every citizen to

travel interstate. See 403 U.S. at

104-06. No issue exists in this case

of race discrimination prohibited by

the thirteeneth amendment. Furthemore

plaintiff did not allege in his com-

plaint that an object of defendants’

conspiracy was to deprive him of his

right to travel interstate. He now

urges this as a basis to uphold his

claim under § 1985(3). However, the

facts do not lend themselves to a

Claim of interference with this right.

Because appellant's complaint has

alleged conduct violative of his first

amendment right to freely practice his

religion and his right to unhindered

associations, as well as equal protection

and due process claims, we must look

to the fourteenth amendment as the

applicable source of power here to

reach the conspiracy alleged. While

the suit before us alleges a private

conspiracy in the sense that the

named defendants -- those who trans-

ported and sought to deprogram the

plaintiff -- are not state officers,

nevertheless, there is no dearth of

state involvement as a result of the

cooperution of the judges and the

sheriff's officers.

The lower court characterized the

§ 1985 complaint as seeking a remedy for

a purely private interference with

fourteenth amendment rights. It has

been traditionally viewed that the four-

teenth amendment provides no protection

against private action. District of

Columbia v. Carter, 409 0.S. 418,

423 (1973); Shelley v. Kraemer,

334 U.S. 1, 13 (1948). We, of course,

adhere to the Court's dictates in this

area.

In the case at bar, however, the

allegations extend beyond the private

deprivation of constitutional rights.

The contention is that the defendants

formed a conspiracy to cause the state

to participate and deprive the plaintiff

of his liberty without due process and

to interfere with his first amendment

freedom of association and religion due

to their hatred of minority religions.

If these allegations are true, then they

may indeed be remedied by § 1985 (2) or

(3).

It is our position that the district

court was wrong in reaching the conclu-

sion which it reached. We believe that

§ 5 of the fourteenth amendment is the

source of congressional power. This is

the provision which authorizes Congress

to provide a remedy where private parties

conspire to induce the state to deprive

an individual of his constitutional

rights. Section 5 of the fourteenth

amendment provides: “The Congress

shall have the power to enforce by

appropriate legislation the provisions

of this article." The fourteenth

amendment prohibits any state from

depriving an individual of life,

liberty, or property without due

process of law, or from depriving

an individual of the equal protection

of the laws. Katzenbach v. Morgan,

384, U.S. 641, 650 (1966), held that

§ 5 of the fourteenth amendment was

intended to grant to Congress the

same broad powers to enforce the

fourteenth amendment as are expressed

in the Necessary and Proper Clause of

Article I, section 8, clause 18 of

the Constitution. It is this broad

authority which gives to Congress the

power, exercised in § 1985(2) and (3),

to provide a remedy against con-

spiracies whose object is to cause

the state to deprive an individual

of his first and fourteenth amendment

rights. >

5. A number of commentaries

support this conclusion. See.

e.g., Comment, A Construction

of Section 1985(c) in Light of

Its Original Purpose, 46 U.

Chi.L.Rev. 402, 432, 436 (1979);

Wildman, 42 U.S.C. § 1985(3) --

A private Action to Vindicate

Fourteenth Amendment Rights:

A Paradox Resolved, 17 San Diego

L.Rev. 371 (198); Cox, Foreward:

Constitutional ‘.7~judication and

the Promotion of Human Rights,

80 Harv.L.Rev. 91, 102 (1966).

6. If two or more persons con-

spire to injure, oppress, threaten,

Or intimidate any citizen in the

free exercise or enjoyment of

any right or privilege secured

to him by the Constitution or

laws of the United States, or

because of his having so exercised

the same; or

If two or more persons go in dis-

guise on the highway, or on the

premises of another, with intent

to prevent or hinder his free

exercise or enjoyment of any

right or privilege so secured --

They shall be fined not more than

$10,000 or imprisoned not more than

ten years, or both; and if death

results, they shall be subject to

imprisonment for any term of years

or for life.

As we view it, our position here

is in accord with the position that was

taken by six Justices of the

Supreme Court in United States v.

Guest, 383 U.S. 745 (1966). In that

case, six defendants were indicted in

Georgia for ciminal conspiracy

violative of 18 U.S.C. § 241 ,

This is the remaining criminal counter-

part of § 1985 7, The defendants were

accused of conspiring to deprive

black citizens of the right to equal

7. The criminal analogue to

§ 1985(3), § 5519 of the

Revised Statutes (Act of April

20, 1871, ch. 22, § 2, 17 Stat.

13, repealed, Act of March 4,

1909, ch. 15, 35 Stat. 1153), was

held to be unconstitutional in

United States v. Harris, 106 U.S.

629, 639 (1882). The Court

interpreted § 5519’s reach to

encompass private conspiracies

to violate the fourteenth |

amendment. Harris struck down °

the statute Because of an overly

narrow view of the severability

of statutes that were only partially

constitutionally deficient.

utilization of public facilities owned

and operated by the State of Georgia

by causing their arrest through false

reports or criminal acts. The court

held that the indictment contained

sufficient allegations of state

cooperation in the means of accomplish-

ing the object of the conspiracy to

preclude dismissal of the indictment.

Id. at 756.

There was a separate concurrence

of Justice Clark, joined by Black and

Fortas, which stated:

The Court carves out of its

opinion the question of the

power of Congress, under § 5

of the Fourteenth amendment,

to enact legislation implementing

the Equal Protection Clause or

any other provision of the

Fourteenth amendment. . .

[T]here now can be no doubt

that the specific language

of § 5 empowers the Congress

to enact laws punishing all

conspirators -- with or without

state action -- that interfere

with fourteenth amendment rights.

Id. at 762 (emphasis added). Justice

Brennan wrote a separate opinion

which was joined in by Chief Justice

Warren and Justice Douglas.

Brennan's view was that the Court

was requiring active connivance

by agents of the state in order for

there to be a violation of 18 U.S.C.

§ 241:

I cannot agree with that

construction of § 241i. I

am of the opinion that a

conspiracy to interfere

with the right to equal

utilization of state

facilities described

in the second numbered

paragraph of the indictment

is a conspiracy to interfere

with a ‘right. . .secured. ..

by the Constitution’ within the

meaning of § 241 -- without

regard to whether state officers

participated in the alleged

conspiracy. I believe that § 241

reaches such a private conspiracy,

not because the fourteenth amend-

ment of its own force prohibits

such a conspiracy, but because

§ 241, as an exercise of con-

gressional power under § 5 of

that amendment, prohibits all

conspiracies to interfere with

the exercise of a ‘right. ..

secured. . .by the Constitution’

and because the right to equal

utilization of state facilities

is a ‘right. . .secured. . .by

the Constitut. om" within the

meaning of thac phrase as used

in § 24l.

Id. at 777 (footnote omitted) (emphasis

in original).

The inference to be drawn is that

the six Justices in United States v.

Guest, supra, adopted the position that

a private conspiracy which interferes with

fourteenth amendment rights by pre-

venting the state from granting equal

treatment or by causing the state to

deprive a citizen of his constitutional

rights is sufficient state action

within the power of Congress to remedy

under § 5 of the fourteenth amendment,

notwithstanding the state is not

actually one of the conspirators.

Justice Stewart's majority view

in Guest is also analogous to the case

before us. The majority was able to

avoid deciding whether Congress under

§ 5 of the fourteenth amendment could

reach a private conspiracy to violate

the rights or privileges secured by

the Constitution or federal laws

because Justice Stewart found

sufficient state involvement alleged

in the indictment. The defendants

were said to have induced the arrest

of blacks through false reports that

these blacks had committed criminal acts.

383 U.S. at 756.

This analysis is fully applicable

to the case at bar. The activity here

in effect Drought the state into a

position which was tainted. The pur-

pose was not t. ‘elp Taylor, the

allegedly sick man, by treating him or

showing concern for him, but rather

to participate in coercing a change in

this adult's religious beliefs and it

was but a prelude to what was to happen.

If, as Mr. Justice Stewart said in

United States v. Guest, supra, that some

limited state involvement may suffice,

it clearly follows that the extensive

state involvement in this case would

certainly satisfy a necessary require-

ment. 8

In his separate concurrence in

Great American Savings & Loan Ass'n.,

442 U.S. at 383-84, Justice Stevens

expressed a view consistent with such

a conclusion when he said:

Some privileges and immunities

of citizenship, such as the

right to engage in interstate

travel and the right to be free

of the badges of slavery, are

protected by the Constitution

against interference by private

action as well as impairment by

State action. Private con-

Sspiracies to deprive individuals

of these rights are, as this

Court heid in Griffin v.

Breckenridge, 403 U.S. 88, 29 L.Ed.2d

338, 91 S.Ct. 1790, actionable

under § 1985(c) without regard

to any state involvement.

8. The state's position in this

kind of a situation is nicely

summed up in a note, The Scope of

Section 1985(3) Since Griffin v.

Breckenridge, 45 Geo.Wash.L.Rev.

239, 250, n. 90 (1977). There

it was said "the state is not the

generator of the wrong perpetrated

but is the mechanism used to carry

it out."

Other privileges and immunities

of citizenship such as the right

to due process of law and the

right to the equal protection

of the laws are protected by the

Constitution only against state

action. Shelley v. Kraemer,

334 U.S. 1, 13, 92 L.Ed.

1161, 68 S.Ct. 386, 3 A.L.R.2d

441. If a state agency arbi-

trarily refuses to serve a class

of persons -- Chinese Americans,

for example, see Yick Wo v. Hopkins,

118 U.S. 356, 30 L.Ed. 220, 6 S.Ct.

1064 -- it violates the fourteenth

amendment. Or if private persons

take conspiratorial action that

prevents or hinders the constituted

authorities of any state from

giving or securing equal treat-

ment, the private persons would

cause those authorities to

violate the fourteenth amend-

ment; the private persons would

then have violated § 1985(c).

(footnotes omitted) (emphasis

added).

It is true that although the

appellant does not claim that the

state conspired to deprive him of

his constitutional right, he does

claim that the state unwittingly

deprived him of those rights when

- 66

the sheriff's deputies forced Taylor to

appear before Judge Benson under no

apparent statutory authority and when

the state court appointed his father

temporary guardian without any juris-

diction, wherely he was illegally

delivered over to the defendants and

was deprived of his freedom of

association and his freedom to pursue

his religious beliefs. We must hold

that a private conspiracy, if this

be such, motivated by a class-based,

invidiously discriminatory animus, to

induce the state to violate one's first

and fourteenth amendment rights is

remedied by § 1985(2) and (3).° The

9. It should be clear from our

holding on § 1983 in this decision

that the defendants’ use of the

state court to attain what may prove

to be unconstitutional goals is not

tantamount to action under “color of

law" as defined by § 1983.

participation and contribution of the

state officers was a considerable

factor in the ultimate activities of

these defendants.

THE CONNECTED MATTERS

The appellant raises a number of

alleged errors contending that there was

abuse of discretion by the trial court.

We do not consider any of these.

The appellees Howard and Trauscht

have contended that the covenant not to

sue Dr. Taylor and his wife that was

signed by appellant Taylor should pre-

vent this suit. They claim that under

the doctrine of Barsh v. Mullins,

338 P.2d 845 (Okla. 1959) this covenant

not to sue releases them because they are

non-acting conspirators whose only

liability could arise under respondent

superior. Dr. Taylor, they say, is the

only active conspirator; that he initiated

the petition for guardianship and,

since he is no longer a party, they

cannot be held liable. We disagree

with all of this. First, the Barsh

case does not apply. These appelles

are not non-acting conspirators.

Their liability, if it is established,

results from active participation in

securing the guardianship order and

in removing Taylor to Akron and then

participating in the actual deprogramming.

These are professionals, it should be

remembered. They do this for pay. These

men had contracted with Taylor to bring

appellant home free of any cult influence.

They signed a retainer agreement and a

consultant agreement for substantial

monetary considerations and received a

large amount of money. The Barsh v.

Mullins case is not applicable whatso-

ever. In Barsh, the plaintiff claimed

that defendants Ray Barsh Truck Lines

and Ken Glass were liable in a civil

conspiracy which occurred following a

wrongful death in an auto accident.

The active participants, Hall, a truck

driver who collided with decedent, and

his employer Barsh Produce were

released from liability by the admini-

strator of decedent's estate. The

remaining defendants were non-actors

and their only liability was through

the use of respondent superior. Howard

and Trauscht attempt to rely on the

statement by the Barsh court that when

conspirators are to be held liable for

the acts of co-conspirators when the

object of the conspiracy is not to damage

anyone, such liability is based on the

principal-agent theory. The release

of those primarily negligent releases

the other conspirators. Unlike Ken

Glass and Barsh Produce, Howard and

Trauscht were active conspirators.

Two other distinctions deserve

mention. No release of Dr. Taylor and

his wife is present in the covenant

not to sue. One who covenants not to

sue does not surrender his action, but

merely agrees not to enforce it. Under

Oklahoma law a covenant not to sue in

favor of one joint tort-feasor does not

release others unless it was so intended.

Allen v. Ouachita Marine and Industry

Corp., 606 P.2d 607, 609 (Okla.Ct.App.

1980). Another difference between Barsh

and the instant case is the presence of

the issue of intent to damage by the

unreleased co-conspirators. Barsh

held that the lack of intent to damage

the plaintiff was essential to extinguishing

any action against the non-covenanting

conspirators. While, from the stand-

point of Howard and Trauscht, no

damage to Taylor may have been

intended, their concept of their

motives may not be accepted by this

court. The participation of Howard

and Trauscht in obtaining this void

court order and the deprocgramming

demonstrates their involvement in

the tortious conduct. For these

reasons their argument for release

through covenant not to sue must

be rejected.

CONCLUSION

One previously mentioned item

which must be emphasized is the

appellees’ attempted use of these

insanity statutes in an effort to

develop an immunity defense in which

an adult person who does not show any

evidences of insanity is subjected to

excessive conduct. This is a misuse

of the state insanity-guardianship or

conservatorship statutes having a clear

purpose to get some kind of court pro-

tection of deprogramming. This should

not be allowed. In Katz v. Superior

Court, 73 Cal.App. 3d 952, 141 Cal.Rptr.

234 (Ct.App. 1977) the intermediate

appellate court rejected the use of the

California probate code's conservator-

ship stati te against five adult children

who were involved in a cult religion.

The statute was said to be too vague to

justify the appointment of a temporary

conservator, and the appointment violated

the free exercise rights of the adults.

No evidence at the hearing demonstrated

the appellants were unable to care for

themselves. The phrase in § 1751 of

the California Probate Code "likely

to be deceived or imposed upon by

artful or designing persons” was held

to be unconstitutionally vague when

applied to religious beliefs. 141

Cal.Rptr. at 244. Similar language

has been used by Oklahoma courts to

interpret Title 55, § 852. The court

in Katz took a strong stand against

licensing kidnapping for the purpose

of thought control. Id. at 253. Its

sentiments are shown by the following:

“in the absence of such actions as

render the adult believer himself

gravely disabled. . ., the process of

this state cannot be used to deprive

the believer of his freedom of action

and to subject him to involuntary treat~-

ment." Id. at 256. In the case before

us the exposure of Taylor to the

monastery did not have any adverse effects

upon him whereby he was gravely disabled.

Had there been some evidence to

show that the religion in suit here

was fraudulent or immoral or illegal,

although we are not prepared to say what

the effect would be, at least the

appellees would have some equity to go

on. But in this case they are not even

dealing with a helpless child. They are

dealing with a person whose resolve is

shown by the failure of the depro-

gramming effort and who escaped back

to the monastery as quickly as he could.

Taylor lived at the monastery before

the deprogramming attempt and was still

living there at the time of trial, over

four years later. So, therefore, this

is a situation in which there is a gross

concerted interference with a very

fundamental right, the right to choose

one's religion, and it is the under-

lying factcr that makes the case

actionable, or which greatly aggravates

it.

The judgment of the district

court should be and the same is affirmed

in part and reversed in part. We have

affirmed the judgment in the § 1983

claim, and we reject the interference

with the right of travel claim advanced

on appeal. In examining the allegations

pertaining to each named defendant we

note that no showing was made below of

Dr. Gilmartin's involvement in the false

imprisonment claim or in the infliction

of emotional distress charge. Therefore

as to those two tort claims summary

judgment in Gilmartin's favor is

affirmed. Judgment in favor of all

other defendants on these two tort

claims is reversed. Judgment on the

claims under § 1985(2) and (3) are

reversed as to all defendants.

The case shall be remanded for further

proceedings, a new trial to a jury, in

accordance with the foregoing.

IN THE UNITED STATES DISTRCIT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

WALTER ROBERT TAYLOR,

Plaintiff

)

vs )

) NO.

KEVIN M. GILMARTIN, )

MICHAEL E. TRAUSCHT, )CIV-77-9351-D

WAYNE N. HOWARD, )

FREEDOM OF THOUGHT )

FOUNDATION, INC., )

JOSEPH ALEXANDER, )

ESTHER ALEXANDER, )

GARY SCHARFF, )

WALTER WINSTON TAYLOR, )

SYLVIA TAYLOR, )

DAVID TAYLOR, and DOES)

I THROUGH X, )

)

Defendants. )

ORDER

This is an action for compensatory

and punitive damages brought by

Plaintiff Walter Robert Taylor against

the above-named Defendants alleging a

conspiracy to violate his civil rights

un-er 42 U.S.C. §§1983, 1958(2),

1985(3) and 1986, together with pendent

claims for conspiracy to commit medical

malpractice, legal malpractice, inten-

tional infliction of emotional distress,

conspiracy to falsely imprison and con-

spiracy to commit assault and battery.

It is asserted that this Court has

jurisdiction of the action pursuant to

28 U.S.C. §1331 (federal question),

§1332 (diversity of citizenship) and

§1343 (civil rights).

The matter is now before the

Court on combined motions to dismiss

and motions for summary judgment filed

by Defendants Howard and Trauscht,

Freedom of Thought Foundation, Inc.

(Foundation) and the Taylors. In their

motions said Defendants contend that

Plaintiff's complaint fails to allege

facts sufficient to constitute causes

of action in his favor against the

Defendants. In the alternative they

seek a summary judgment in their favor

on the basis that the record in this

case shows that there is no genuine

issue as to any material fact and that

they are entitled to a judgment as a

matter of law.

The moving parties have submitted

briefs, affidavits and exhibits in

support of their motions. Plaintiff

has responded, with supporting briefs,

affidavits and exhibits, to said

motions. The Court has conducted a

hearing on the motions.

Rule 12(b), Federal Rules of

Civil Procedure, provides that if,

on a motion to dismiss for failure

to state a claim,

matters outside the pleading

are presented to and not

excluded by the court, the

motion shall be treated as

one for summary judgment and

disposed of as provided in

Rule 56, and all parties shall

be treated as one for summary

judgment and disposed of as pro-

vided in Rule 56, and all parties

shall be given reasonable oppor-

tunity to present all material

made pertinent to such a motion

by Rule 56.

When, as in this case, matters outside

the pleadings are presented in connection

with a motion to dismiss for failure to

State a claim, and the same are not ex-

Cluded by the Court, the Court must treat

the motion as one for summary judgment

and proceed under Rule 56. Carter v.

Stanton, 405 U.S. 669, 671, 92 S.Ct.

1232, 31 L.Ed.2d 569 (1972) (per curiam);

Franklin v. Oklahoma City Abstract &

Title Co., 584 F.2d 964, 967 (Tenth

Cir. 1978);American Home Assurance Co. v.

Cessna Aircraft Co., 551 F.2d 804,

807 (Tenth Cir. 1977); Torres v.

Pirst State Bank, 550 F.2d 1255,

1257 (Tenth Cir. 1977).

In the instant case the Court has

conducted a hearing on the Defendants’

motions for summary judgment; pursuant

to Rule 56(c), notice was given to the

Plaintiff and all parties were given a

reasonable opportunity to present all

material made pertinent to the Defendants’

motions by Rule 56.

A motion for summary judgment should

be granted if the pleadings, depositions,

answers to interrogatories and admissions

on file, together with the affidavits,

if any, show that there is no genuine

issue as to any material fact and that

the moving party is entitled to a

judgment as a matter of law. Rule 56(c).

Such a motion should be granted only when

the moving party has established the

absence of any genuine issue as to a

material fact and that it is entitled

to judgment as a matter of law.

Williams Petroleum Co. v. Midland

Cooperatives, Inc., 539 F.2d 694,

697 (Tenth Cir. 1976); Dzenits v.

Merrill Lynch, Pierce, Fenner & Smith,

Inc., 494 F.2d 168, 171 (Tenth Cir.

1974). The Court must examine the

Summary judgment papers in the light

most favorable to the party opposing

the motion. Adickes v. S. H. Kress &

Co., 398 U.S. 144, 158-59, 90 S.Ct.

1598, 26 L.Ed.2d 142 (1970); le v.

Sevier County School District, 540 F.2d

478, 482 (Tenth Cir. 1976), cert.

denied, 429 U.S. 1121, 97 S.Ct. 1157,

51 L.Ed.2d 572 (1977); Webb v. Allstate

Life Insurance Co., 537 F.2d 336,

340 (Tenth Cir. 1976).

This action arises from the

Defendants’ attempted religious

eusesesenntan” of Plaintiff, a

priest of the Old Catholic Church

and a resident of the monastery of the

Holy Protection of the Blessed Virgin

Mary in Oklahoma City, Oklahoma. Plaintiff

names as defendants herein his parents,

brother, the Foundation and other parti-

cipants in the deprogramming.

Plaintiff alleges that in June, 1976

his parents entered into an agreement

with the Foundation, a corporation engaged

in the business of deprogramming, whereby

the Foundation was to deprogram the

Plaintiff. Proceedings were instituted

in the Oklahoma County District Court

1 Deprogramming, as the term has

come known, is the process whereby

individuals who are members of certain

religious groups are subjected to a

scheme of brain-washing or mind control

in an attempt to dissuade them of their

religious beliefs. Baer v. Baer,

450 F.Supp. 481, 458 (N.D. Cal. 1978).

seeking to have Plaintiff's father,

Dr. Walter Winston Taylor, appointed as

temporary guardian for the Plaintiff.

At the direction of the state district

court, local law enforcement officers

seized Plaintiff at the monastery and

brought him before the court. The court

conducted a hearing and appointed Dr.

Taylor as Plaintiff's temporary guardian.

Plaintiff was then taken to Ohio, where

the attempted deprogramming process

began, and later to Arizona, where the

deprogramming continued. While Plaintiff

was in Arizona, another judge of the

Oklahoma County District Court entered

an order revoking the earlier order

which appointed Dr. Taylor as Plaintiff's

temporary guardian. In the later order

the Taylors and the deprogrammers were

directed to stop the deprogramming process

and return Plaintiff to Oklahoma City.

At this point, the Taylors instituted

guardianship proceedings in a state

court of Arizona, where Dr. Taylor was

again appointed as Plaintiff's temporary

guardian. Plaintiff ultimately escaped

from the custody of the deprogrammers

and returned to his monastery in

Oklahoma City on August l, 1976.

Plaintiff brings this action asserting

seven causes of action against the

Defendants: first, for conspiracy to

violate his civil rights, pursuant to

42 U.S.C. §§183 and 1985(3); second,

conspiracy to obstruct justice, pur-

suant to 42 U.S.C. §1985(2); third,

conspiracy to commit medical mal-

practice; fourth, legal malpractice;

fifth, intentional infliction of

emotional distress; sixth, con-

spiracy to falsely imprison; and

seyenth, conspiracy to commit assault and

battery. In ruling on the motions now

pending, the Court will consider each

of Plaintiff's causes of action

separately. 2/

CONSPIRACY TO VIOLATE CIVIL RIGHTS

In his first cause of action,

Plaintiff alleges that the Defendants

conspired to deprive him of the equal

protection of the laws with regard to

his rights to tolerance of religious

sentiment, no transporation out of state

without due process, impartial trial,

due process, freedom of religion and

2/ In their motions the moving parties

do not address Plaintiff's second

cause of action, wherein Plaintiff

proceeds under 42 U.S.C. §1985(2)

alleging that the Defendants con-

spired to obstruct justice. Accordingly,

the Court will not consider that cause

of action in this Order.

speech and association, against un-

reasonable search and seizure, to

liberty and due process, against cruel

and unusual punishment, privacy, and

to pursue a lawful occupation and

reside in any state unmolested. He

asserts that these rights are

guaranteed to him by state law and by

the First, Fourth, Fifth, Eighth,

Ninth and Fourteenth Amendments.

The moving parties move to dis-

miss this cause of action on the basis

that Plaintiff has failed to state a

claim upon which relief can be granted

under either 42 U.S.C. §1983, §1985(3)

or §1986.2/ They contend that

a Although the moving parties attack

laintiff's claim herein under §1986,

Plaintiff indicates in his response to

the motion of Howard and Trauscht that

ne is not attempting to plead a §1986

claim in this action.

Plaintiff's claim for relief under

§183 must fail because there is no

evidence in the record to establish

a conspiracy among the Defendants to

deprive Plaintiff of his constitutional

rights and that the actions of the

Defendants were not under color of

State law. They assert that the

§ 1985(3) claim must fail because of a

lack of a “class-based animus."

In addition, Defendants Howard

and Trauscht maintain that Dr. Taylor,

as the temporary guardian of Plaintiff

appointed by the state court, should be

granted the same immunity as would be

afforded the state court judge entering

such order. The Foundation further

contends that the evidence in this

case establishes that it was not

involved in the conduct complained of

by Plaintiff and, moreover, that it was

not in operation until after the alleged

actions took place. The Taylors

further argue that the record herein

Clearly establishes the legality and

validity of Dr. Taylor's temporary

guardianship order and that this makes

the other questions moot.

PLAINTIFF'S CLAIM FOR RELIC’

To frame a cause of action under

$1983 4/ the Plaintiff must allege facts

which show the Defendants have acted

4/ This section provides:

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 depriv-

ation 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.

under color of state law or authority and

have deprived the Plaintiff of a right,

privilege or immunity secured by the

Constitution and the laws of the United

States. Adickes v. S.H. Kress & Co.,

Supra, 398 U.S. at 150; Palacios v. Foltz,

441 F.2d 1196, 1197 (Tenth Cir. 1971);

Jones v. Oklahoma Secondary School

Activities Association, 453 F.Supp. 150,

155 (W.D. Okla. 1977); Black v. Cook,

444 F.Supp. 61, 63 (W.D. Okla. 1977);

Harbert v. Rapp, 415 F.Supp. 83, 86

(W.D. Okla. 1976).

§1983 is of limited scope, dealing

only with those deprivations of rights

which are accomplished under the color

of the law of a state or territory; it

does not reach purely private conduct.

District of Columbia v. Carter, 409

U.S. 418, 424, 93 S.Ct. 602, 34 L.Ed.2d

613 (1973). However, to act “under

color" of law does not require that the

accused be an officer of the state; it is

enough that he is a willful participant

in joint activity with the state or its

agents. United States v. Price,

383 U.S. 787, 794, 86 S.Ct. 1152,

16 L.Fd.2d 267 (1966), quoted and

relied upon in Adickes v. S.H. Kress &

Co., Supra, 398 U.S. at 152.

In a case very similar to the

instant case, the United States

District Court for the Northern

District of California indicated:

Where the defendants are

private individuals, as in

the case at hand, two ways

exist in which their other-

wise private conduct may become

state action within the meaning

of §1983. In the first circum-

stance, courts deem private

individuals to be clothed with

the authority of the state when

it is apparent their actions

are substantially identical to

actions taken by the state.

See, e.g., DeCarlo v. Joseph

Horne & Co., 251 F.Supp. o55

(W.D.Pa.1966). As one court

observed:

The key feature of this type

of liability is that the

individual possesses power,

conferred by state or other-

wise, which the ordinary

citizen does not possess and

which allows the individual

to take actions normally

associated with those taken

by public officials acting

on behalf of the state.

Dennis v. Hein, 413 F.Supp.

1137, 1140 (D.S.Cc.1976).