# Appendix — Howard v. Taylor > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1041%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 463 U.S. 1229 ## Text 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, v. 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. 3 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 4 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 5 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 7 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, 9 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 10 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. ll 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 12 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 13 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 14 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 15 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 16 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, 17 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 18 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 19 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 20 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 21 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). 22 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 23 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. 24 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). 25 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, 26 194 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. 27 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. 28 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 29 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 30 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 31 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 32 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 33 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 34 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 35 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 36 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., 37 398 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- 38 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. 39 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. 40 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 41 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. 42 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 43 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 44 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, 45 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 46 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 47 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 48 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: 49 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 51 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 52 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’ 53 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 54 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 55 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 56 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 57 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. 59 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. 60 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 61 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- 62 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 63 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 64 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." 65 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. 67 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- 69 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 70 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 71 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 72 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 73 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. 74 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 75 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. 76 The case shall be remanded for further proceedings, a new trial to a jury, in accordance with the foregoing. 77 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 78 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 79 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). 81 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. 82 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 83 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 86 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. 87 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. 91 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 92 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 93 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). See also Oller v. Bank of America, 342 F.Supp. at 23. More often, private action is deemed state action because the individual wilfully participates in joint activity with the state or its agents. See, e.g., Adickes v. S.H. Kress and Co., 398 . . o . t. 7 L.Ed.2d 142 (1970); Hoffman v. Halden, 268 F.2d 280 (Sth Cir. 1959). The test of whether a joint participation or conspiracy exists is whether the facts alleged demonstrates that the pri- vate individual and the public official acted with a common understanding or "meeting of the minds" to deprive the plaintiff of his constitution-~ ally protected rights. 398 U.S. at 156, 90 S.Ct. 1598. See Hoffman v. Halden, 268 F.2d at 294. . .As this court observed 94 in Oller v. Bank of America, 342 F.Supp. at 23, however, ‘[t)he requirement of “State action’ can rarely be satis- fied when the action is taken by one not a state official.’ Baer v. Baer, 450 F.Supp. 481, 485-86 (N.D. Calif. 1978). In this case Plaintiff contends that the Defendants’ actions were done under color of the law of Oklahoma through the Defendants’ use of the state judicial system, state court orders and local law enforcement officers to effectuate the deprogramming process. He maintains that Dr. Taylor, one of the conspirators, was clothed with the authority of the state in the form of the temporary guardianship order and that the Defendants misused that authority by causing Plaintiff to be abducted by local law enforcement officers ana by incarcerating Plaintiff during the 95 attempted deprogramming. Plaintiff asserts that when Dr. Taylor was appointed as Plaintiff's temporary guardian, he became a state actor, and that when the deprogrammers utilized the temporary guardianship order to abduct Plaintiff with the assistance of local law enforcement officers and to incarcerate him during the programming, the depro- grammers were exercising state power rather than a private remedy. In two cases involving religious deprogramming, both with virtually identical facts to the instant case, federal district courts in California and Arkansas have determined that a state, merely by providing a forum and a means of enforcing regularly issued court orders, does not “color” the action of the private litigants with 96 State action. See Baer v. Baer, supra; Orlando y. Wizel, 443 F.Supp. 744, 748 (W.D. Ark. 1978). The Court agrees with the conclu- sions reached in those decisions and finds herein that the Defendants’ private conduct giving rise to this action did not constitute »s.ute action within the meaning of §1983. The Defendants’ resort to the state court to obtain the temporary guardianship order, and the subse- guent utilization of local law enforcement officers to obtain custody of Plaintiff, did not clothe the Defendants with the authority of the state. Such disinterested and indirect involvement by the state is too insignificant to bring the alleged discrimination within the pale of constitutional prohibitions. Baer v. 97 Baer, supra, 450 F.Supp. at 486. As noted in Baer; Because the courts are open to all persons the state confers no power upon any one individual that another does not possess. Defendants here did not possess any special aura of state authority because their actions were not those normally taken by public officials acting on behalf of the state. In petition- ing the. . .{court] for an ex parte conservatorship order defendants were exercising a power not conferred by statute upon a select few but upon all citizens of the state. Id. 450 F.Supp. at 486. The Court finds Plaintiff's con- tention that the Defendants acted under color of state law in this case due to their misuse of power with the cloak of state authority to be misplaced. Any private misuse by the Defendants of the Oklahoma law does not present a claim upon which relief could be granted under §1983. See Baer v. Baer, supra, 98 450 F.Supp. at 487. Nor does the Court find persuasive Plaintiff's reliance on the joint participation method of establishing that the Defendants acted under color of state law. Plaintiff's Complaint fails to state sufficient facts to establish that the state officials participated in the wrongful conduct with the shared intention of depriving Plaintiff of his constitutional rights. There is no allegation in the Complaint nor any evidence in the record that either the state court judge that issued the temporary guardianship order or the local law enforcement officers who effectuated that order were a part of the purported conspiracy between the Defendants to deprive Plaintiff of his rights. Neither is there any allegation or evidence that those 99 state officials shared this goal. The record shows only that the state court issued the order upon application of Dr. Taylor, a private citizen, and that the local law enforcement officers assisted in carrying out the court order. This is insufficient to establish that the Defendants and those state officials jointly participated to deprive Plaintiff of this constitutional rights. Accordingly, the Court finds that Plaintiff's Complaint fails to state a claim under §1983 as it fails to allege action under color of state law. Defendants are entitled to judgment in their favor dismissing Plaintiff's §1983 claim. PLAINTIFF'S CLAIM FOR RELIEF UNDE .5.C. § ) The moving parties’ next attack is mounted against Plaintiff's 100 §1985(3) claim in his first cause of action. The moving parties assert that there is not sufficient evidence in this case to establish a "class- based animus” to support an action 5 under that section.— They argie that Plaintiff has made no showing that other individuals have not been the subject of guardianship proceedings °/ §1985(3) provides in pertinent part: 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 privilege and immunities under the laws. . . {and] if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy - « «the party so injured or deprived may have an action for the recovery of damages. . .against any one or more of the conspirators. 101 under similar circumstances, or that individuals who are members of religious groups other than the Old Catholic Church have not been the object of guardianship proceedings. They further maintain that the Taylors’ use of the state courts of Oklahoma and Arizona with regard to the guardian- ship proceedings does not create the necessary state involvement so as to give rise to a §1985(3) action. In opposition to the motions, Plaintiff contends that his Complaint states a claim upon which relief can be granted under §1985(3) as the Defendants herein have demonstrated a class-based animus by singling out minority religions as the target of their de- programming attempts. He asserts that a state action is not an essential 102 element to a §1985(3) claim, citing Taylor v. Nichols, 558 F,2d 561, 567 (Tenth Cir. 1977). In order to recover damages for a conspiracy to violate his civil rights, Plaintiff must allege and prove a violation of §1985(3). The Supreme Court has construed a cause of action under that section as follows: 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 (3) did, or caused to be done, ‘any act in furtherance of the object of [the] conspiracy, ‘whereby another 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.' 103 Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). The Supreme Court in Griffin per- formed a two-level analysis of the complaint in order to determine whether a cause of action under §1985(3) had been stated. It considered, first, whether the facts alleged in the complaint before it fell within the terms of §1985(3). Secondly, recog- nizing that conduct within the terms of the statute might go beyond the power of Congress to regulate, the Court identi- fied the source of congressional power to reach the conduct alleged. In this case, the Court concludes that Plaintiff's Complaint satisfies the first of the aforementioned requirements, in that the facts alleged in the Complaint fall within the terms of §1985(3). 104 However, the Court finds that Plaintiff's §1985(3) claim must fail as the Court is unable to determine that Congress has the power to reach the private conspiracy involved in this case. In determining that the conspiracy alleged in Plaintiff's first cause of action falls within the terms of §1985(3), the Court disagrees with the Defendants’ contention that Plaintiff has failed to allege sufficient facts to establish a Class-based animus for purposes of §1985(3). It would appear that the religious followers of the Old Catholic Church may constitute a class within the meaning of that section. See e.g., Murphy v. Mount Carmel High School, 543 F.2d 1189, 1192 n. 1 (Seventh Cir. 1976); Baer v. Baer, supra, 450 F.Supp. at 105 491. And 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 deprogram individuals such as Plaintiff. As stated in Baer: While religious status may differ from racial status because it is not a congenital and inalterable trait, membership in a minority religious group, like membership in a minority racial group, has often excited the fear, hatred and irrationality of the majority. 106 Two thousand years of human history compellingly prove that no easier road to martyrdom is: found than in adherence to an unpopular religious faith. Por these reasons, and because the legislative history does not indicate otherwise, this court concludes that religious discrimination may be encompassed by the terms of §1985(3). Baer v. Baer, supra, 450 F.Supp. at 491. But see Weiss v. Patrick, 453 F.Supp. 717, 723-24 (D.R.I. 1978). It is also clear that §1985(3) permits actions against private persons for conspiracies which involve no state action. E.g., Griffin v. Breckenridge, supra, 403 U.S. at 101; Taylor v. Nichols, supra, 559 F.2d at 567. The Court therefore concludes that Plaintiff's Complaint sufficiently alleges the elements of a §1985(3) action. However, pursuant to the teachings of Griffin, the Court must then identify a source of congressional 107 power to reach the private conspiracy so alleged. Griffin v. Breckenridge, supra, 403 U.S. at 104. Although there is no statutory requirement of State participation or support for the con- duct of the individual conspirators proscribed by §1985(3), there is a requirement that the conspiracy deprive the Plaintiff of a federally protected right. Cohen v. Illinois Institute of Technology, 524 F.2d 818, 828 (Seventh Cir. 1975). That requirement would be satisfied in this case if there was State action involved or if the constitutional rights of the Plaintiff at stake were ones that are entitled to protection against anyone, rather than merely protection from impairment by a state. Id. 108 In Griffin the Supreme Court found two sources of power to reach the private conspiracy alleged therein: §2 of the Thirteenth Amendment and the right of interstate travel. The Supreme Court determined that these constitutional rights were not mere prohibitions against objectionable state action but were assertable against private as well as governmental interference. Neither of these sources of congressional power are availing in this case. See Baer v. Baer, supra, 450 F.Supp. at 493. Accordingly, the Court must in the instant case look elsewhere in the Constitution for wongressional power to reach the private conspiracy involved herein. In his Complaint Plaintiff alleges that the Defendants conspired 109 to deprive him of the equal pro- tection of the laws with regard to rights guaranteed him by the First, Fourth, Pifth, Eighth, Ninth and Fourteenth Amendments. These Amendments do not provide congressional power to reach the private conspiracy in this case. The first ten amendments to the Constitution, the part generally referred to as the Bill of Rights, enumerate certain fundamental prin- ciples and rights of citizenship which are guaranteed only against violation or abridgment by the federal or state governments. These cannot generally be affirmatively enforced by Congress against unlawful acts of individuals. See 16 Am.Jur.2d Constitutional Law §330 (1964). It is equally well settled that the Fourteenth Amendment is not a protection against purely 110 private interference and may be violated only by the action of a state. See, e.g., District of Columbia v. Carter, supra, 409 U.S. at 423; Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Cohen v. Illinois Institute of Technology, supra, 524 F.2d at 828. This Court has already decided that there was not state action in this case. S To the extent the Plaintiff asserts that §5 of the Fourteenth Amendment provides Congress with the power to reach private conspiracies, the court in Baer v. Baer, supra, considered the same and determined: 6/ Under 42 U.S.C. §1983, the “under Color of state law" requirement is the same as the “state action” requirement of the Fourteenth Amendment. Gibbs v. Titeluen, 502 F.2d 1107, 1110 (Third 4), cert. denied, 419 U.S. 1039, 95. S.Ct. 526, 42 L.Ed.2d 316 (1974). 111 It is the conclusion of this court, which finds support in the decisions of the Seventh and Fourth Circuits, that it would be unsound in the absence of guidance from the Supreme Court to hold Congress has the power under § 5 of the Fourteenth Amendment to reach the private conspiracy in this case. Murph v. Mount Carmel High School, 543 F.2d at 1195; Bell ° Mason's Store, Inc., 508 F.2d at 507. Aside from the absence of a firm constitutional foothold this court is persuaded by the limits of its own power that § 1985(3) should not be applied to private religious controversies. Id. 450 F.Supp. at 496. This Court agrees with the above conclusion of the Court in Baer. In view of the above, as Plaintiff's Complaint establishes no factual basis for finding any form of state involvement, it fails to state a claim upon which relief can be granted under §1985(3) as well as §1983. Accordingly, the Court concludes that Defendants are entitled 112 to judgment in their favor dismissing Plaintiff's §1985(3) claim. MEDICAL MALPRACTICE In his third cause Plaintiff alleges that Defendants Dr. Taylor and Dr. Kevin M. Gilmartin committed medical malpractice and that the malpractice was aided and abetted by the other Defendants. Plaintiff alleges that Dr. Taylor sought and illegally obtained a court order to treat Plaintiff in the relationship of physician and patient; gave false testimony to obtain said order; employed Dr. Gilmartin, a Clinical psychologist, to give false and misleading testimony by letter to assist in obtaining the order; pre- scribed experimental deprogramming treatment of Plaintiff rather than recognized treatment; denied Plaintiff 113 needed medical treatment during the de- programming; failed to obtain a report of a psychiatrist on Plaintiff's condition as ordered by the Court; used unqualified laymen in the treatment of Plaintiff; failed to adequately diagnose Plaintiff's medical and physical health; treated Plaintiff without his consent; failed to inform Plaintiff of the dangers of proposed treatment and misinformed Plaintiff of his condition; and failed to comply with the court orders to stop treatment and release Plaintiff. Plaintiff alleges that Dr. Gilmartin wrote a professional opinion on the state of Plaintiff's mental health, which opinion was filed in the Oklahoma guardianship proceeding, without examining Plaintiff so as to illegally harass ané persecute Plaintiff by unfounded 114 legal proceeding; prescribed experimental deprogramming procedures rather than recognized treatment of Plaintiff; used unqualified laymen to carry out treat- ment; failed to adequately supervise the laymen and other asistants; treated Plaintiff without his con- sent; failed to adequately diagnose Plaintiff's mental health; failed to inform Plaintiff of the dangers of the experimental treatment and mis- informed Plaintiff of his condition; and failed to comply with court orders to stop treatment and release Plaintiff. The Taylors move the Court to dismiss Plaintiff's claim against Dr. Taylor on the basis that Dr. Taylor could not be guilty of malpractice as a physician-parent relationship Between Dr. Taylor and the Plaintiff was that of a father and son, and not 115 that of a physician and patient. Howard and Trauscht also move to dismiss this cause of action. They also contend that Plaintiff's r-dical malpractice action must fail as against all Defendants since there was no physician- patient relationship between Plaintiff and either Dr. Taylor or Dr. Gilmartin or any other Defendant. In opposition to said Defendants’ motion, Plaintiff contends that there was a physician-patient relationship between Drs. Taylor and Gilmartin and Plaintiff as Dr. Taylor examined him and prescribed for him and as Dr. Gilmartin counseled with Plaintiff by phone, examined him in person in Arizona, conferred with his parents, and wrote two opinion letters on his condition. Plaintiff contends that the remaining Defendants aided and abetted those Defendants in the malpractice. 116 Upon examination of the record in this case, the Court concludes that the motions for summary judgment should be overruled as to Plaintiff's third cause of action. The Court is unable to conclude that there is no material issue of the fact left to be resolved with regard to Plaintiff's medical malpractice claim and that Defendants are entitled to judgment on that cause of action as a matter of law. The existence of the relationship between a physician and a patient is a question of fact depending on whether the patient entrusted himself to the care of the physician and whether the physician accepted the case. 61 Am.Jur.2d Physicians, Surgeons and Other Healers §96, at 216 (1972). The Court cannot try an issue of fact in a Rule 56 motion. 10 Wright & Miller, Federal 117 Practice and Procedure: Civil §2712, at 379 (1973), and the cases collected therein. LEGAL MALPRACTICE Plaintiff's fourth cause of action is Dased on the alleged legal mal- practice of Defendants Wayne N. Howard and Michael E. Trauscht. Plaintiff alleges Howard partici- pated in experimental psychological treatment and confinement of Plaintiff without a license as a mental health professional; filed an illegal guardianship proceeding in Arizona State Court; secreted Plaintiff from Plaintiff's attorneys and extorted Plaintiff's signature on legal docu- ments while holding Plaintiff without letting Plaintiff seek advice of counsel; lied to the Oklahoma County District Court as to Plaintiff's mental 118 condition and desires; and disobeyed an order of the Oklahoma County District Court. He alleges that Trauscht appeared as both an attorney and a witness in the same legal proceedings; participated in an ex parte hearing in the same case; gave false and misleading testimony; participated in experimental psychological treatment and confinement of Plaintiff without a license as a mental health professional and organized the Fouda- tion to do likewise; and refused to obey an order of the Oklahoma County District Court. Plaintiff alleges that said Defendants’ actions were willful, malicious or grossly negligent and in violation of the Canons of Professional Ethics for lawyers. Howard and Trauscht move the 119 Court to dismiss this cause of action on the hasis that Plaintiff has not alleged or established a prima facie case of legal malpractice. They assert that as Plaintiff has not established an attorney-client relationship between themselves and the Plaintiff, Plaintiff has not established that they owe a duty to Plaintiff or that they breached any such duty. They contend that such a relationship is essential to establishing legal malpractice. In opposing the motion of Howard and Trauscht, Plaintiff contends that it is not essential that Plaintiff establish an attorney-client relation- ship in a legal malpractice claim. Plaintiff further contends that by virtue of the Oklahoma County District Court's order revoking the temporary 120 guardianship order and ordering the deprogrammers to return Plaintiff to Oklahoma City, there is a question of fact as to whether Howard and Trauscht owed Plaintiff a duty. Plaintiff's fourth cause of action does not arise from the negligence of an attorney in the performance of duties as an attorney and of a legal nature for his client, as in the typical action for legal malpractice. Instead, it arises from the alleged wrongful acts of Howard and Trauscht in connection with the attempted deprogramming of Plaintiff. The alleged wrongful actions performed by those Defendants were not actions performed as lawyers or actions of a legal nature, but were of a nonlegal nature which could have been committed as well by a nonlawyer. Plaintiff does not allege that there was an attorney- 121 client relationship between Howard and Trauscht and himself; instead, he complains that these Defendants injured him through various wrongful acts allegedly done in connection with the deprogramming. It is well established in Oklahoma and most other jurisdictions that as a matter of law an attorney cannot be held liable for legal malpractice to a third party with whom he was not in privity by reason of negligence while representing his client. An attorney will be held liable for negligence in the conduct of his professional duties only to his client. See Franke v. Midwestern Oklahoma Development Authority, 428 F.Supp. 719, 72° (W.D. Okla. 1976), and the cases cited therein; 7 Am.Jur.2d Attorneys at Law §167 (1963); 7 C.J.S. Attorney and Client §140 (1937); Annot., 122 Attorney's liability, to one other than his immediate client, for consequences of negligence in carrying out legal duties, 45 A.L.R.3d 1181, §3 (1972). Accordingly, the Court finds that Plaintiff's fourth cause of action fails to state a claim for legal malpractice against Howard and Trauscht upon which relief can be granted. The allegations Plaintiff makes against Howard and Trauscht in this cause of action fall more appropriately under Plaintiff's fifth, sixth, or seventh causes of action. See generally Thomas Fruit Co. v. Levergood, 274 P. 471 (Okla. 1929); Anderson v. Canaday, 131 P. 697 (Okla. 1913); 7 Am.Jur.2d Attorneys at Law §196 (1963); 7C.J.S. Attorney and Client §52b (1937); Annot., Liability of attorney acting for client, for false imprisonment or malicious 123 prosecution of third party, 27 A.L.R.3d 1113 (1969). Defendants Howard and Trauscht are entitled to a judgment in their favor dismissing the fourth cause of action. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Plaintiff alleges in his fifth cause of action that Defendants conspired to inflict severe and extreme emotional distress on Plaintiff by subjecting him to the deprogramming ordeal. He avers that as a result of Defendants’ actions he became physically ill and suffered extreme emotional distress; was put to great abuse, mental torture and trouble; was prevented from practicing his religion; was subjected to loss of health, nervous prostration and great mental and physical suffering; and was deprived of his liberty, property and constitutional rights. 124 Howard and Trauscht move to dis- miss this cause of action. They con- tend that there is no evidence that Plaintiff was physically harmed or that he suffered any monetary loss and argue that this cause of action is a dupli- cation of Plaintiff's seventh cause of action for conspiracy to commit assault and battery. Plaintiff contends in opposition to Howard and Trauscht's motion that his fifth cause of action alleges the tort of intentional infliction of emotional distress of mental anguish and argues that there is a question of fact as to whether Plaintiff can recover on that theory. In Breeden v. League Services Corp., 575 P.2d 1374 (Okla. 1978), the Oklahoma Supreme Court recognized the tort of intentional infliction of 125 emotional distress, as a separate and distinct basis for tort liability with- out the presence of elements necessary to other torts, such as assault, false imprisonment, trespass to land or the like, citing Restatements of Torts (Second), 1965, §46, Comment b. It indicated that in a tort action involving a Plaintiff's right to be free from emotional distress: The court, in the first instance, must determine whether the defendant's conduct may reason- ably be regarded so extreme and outrageous as to permit recovery, Or wnether it is necessarily so. Where, under the facts before the court, reasonable persons may differ, it is for the jury, subject to the control of the court, to determine whether the conduct in any given case has been significantly extreme and outrageous to result in liability. Likewise, it is for the court to determine, in the first instance, whether based upon the evidence presented, severe emotional distress can be found. It is for the jury to determine whether, on the evidence, severe emotional distress in fact existed. (Footnote omitted. Emphasis in original). 126 Breeden v. League Services Corp., supra, 575 P.2d at 1377-78. In the instant case, the Court is unable to conclude as a matter of law that outrageous or extreme conduct could not be found to exist in this case. Accordingly, the motion of Howard and Trauscht for a summary judgment in their favor on Plaintiff's fifth cause of action should be overruled. CONSPIRACY TO FALSELY IMPRISON In his sixth cause of action, Plaintiff alleges that the Defendants conspired to cause Plaintiff to be taken into custody and held, initially under an illegal temporary guardianship order and later without any legal basis what- soever, through force and threats, against Plaintiff's will. He avers that he was unlawfully imprisoned, de- tained and restrained of his liberty 127 from July 15, 1976 to August 1, 1976. Howard and Trauscht move to dis- miss this cause of action against them. They contend that there was a valid court order authorizing the restraint of Plaintiff the entire time he was in the care, custody and control of his parents and maintain that there can be no false imprisonment when the person involved is confined pursuant to a valid court order. They further argue that there is no evidence that either of them physically restrained or threatened Plaintiff in any manner or that they conspired with the other Defendants to unlawfully restrain Plaintiff. In opposition to Howard and Trauscht's motion, Plaintiff contends the object of the deprogramming conspiracy included false imprisonment. As noted by the parties, false 128 imprisonment is the unlawful restraint of an individual's personal liberty or freedom of locomotion. S.H. Kress & Co. v. Bradshaw, 99 P.2d 598 (Okla. 1940); 32 Am.Jur.2d Palse Imprisonment §1 (1967); 35 C.J.S. False Imprisonment $1 (1960). The elements of false imprisonment are (1) the detention of the person, and (2) the unlawfulness of the detention. 32 Am.Jur.2d Palse Imprisonment §5 (1967); 35 C©.J.S. False Imprisonment §5 (1960). It appears to the Court that genuine issues of material facts are present in this case as to both of the essential elements of the wrong complained of herein and particularly as to whether the alleged detention of Plaintiff was unlawful or lawful, and if unlawful, if Howard and Trauscht or any other Defendants are responsible 129 for the deténtion. The Court is not satisfied that this cause of action can be disposed of properly by summary judgment on these matters. Accordingly, Howard and Trauscht's motion for summary judgment on the sixth cause of action should be overruled. CONSPIRACY TO COMMIT ASSAULT AND BATTERY In his seventh cause of action Plaintiff alleges that the Defendants’ acts and threats against him during the deprogramming placed him in reasonable apprehension of bodily harm; that Defen- dant David Taylor and other agents of Defendants turced him to the floor and tore off his monastic robes and crucifix; that he was struck and threatened hy a guard placed over him by Defendant Howard; and that during the deprogramming Defendants threatened him with bodily harm and assaulted his 130 mental wellbeing; and that all of said acts were done without provocation and with intent to injure Plaintiff. Howard and Trauscht move to dis- miss this cause of action against then. They contend that it duplicates the fifth cause of action for intentional inflic- tion of emotional distress and maintain that the evidence establishing that none of the Defendants conspired to assault or physically harm Plaintiff. They further contend that they are not responsible for any acts of assault or battery committed by any of the other Defendants. Plaintiff opposes the motion of Howard and Trauscht. He argues that since the evidence shows that Howard and Trauscht knew that members of the deprogramming team were prone to violence, they are legally responsible for the assault and battery the de- 131 programming entails. The Court is not satisfied that genuine issues of material facts are not present with regard to this cause of ac. .on. Summary judgment is there- fore inappropriate as to Plaintiff's seventh cause of action and Howard and Trauscht's motion for the same should be overruled. In view of the foregoing, a judgment in favor of the Defendants is to be entered herein dismissing Plaintiff's first cause of action for conspiracy to violate civil rights and a judgment in favor of Defendants Howard and Trauscht is to be entered dismissing Plaintiff's fourth cause of action for legal malpractice. The motions for summary judgment are overruled as to Plaintiff's third, fifth, sixth and seventh causes of 132 7/ section. As the Court has already indicated, the Defendants have not attacked Plaintiff's second cause of action. It is so ordered this 30th day of December , 1978. Fred Daugherty United States District Judge JUDGMENT ENTERED ON DECEMBER 30, 1978 7/ In overruling the motions for summary judgment on these causes of action, the Court further concludes that it is unable at this time to find as a matter of law that the Foundation was not involved in the deprogramming attempt. 133 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA WALTER ROBERT TAYLOR, Plaintiff, vs. NO. KEVIN M. GILMARTIN, MICHAEL E. TRAUSCHT, WAYNE N. HOWARD, FREEDOM OF THOUGHT ) ) ) ) ) ) ) )CIV-77-0351-D FOUNDATION, INC., ; ) ) ) ) ) ) ) ) JOSEPH ALEXANDER, ESTHER ALEXANDER, GARY SCHARFF, WALTER WINSTON TAYLOR SYLVIA TAYLOR, DAVID TAYLOR and DOES I THROUGH X, Defendants. Plaintiff Walter Robert Taylor brings this action against the above-named Defendants alleging seven causes of action against the Defendants; first, for conspiracy to violate his civil rights, pursuant to 42 U.S.C. §1983 and 1985(3); second, conspiracy to obstruct 134 justice, pursuant to 42 U.S.C. §1985(2); third, conspiracy to commit medical malpractice; fourth, legal malpractice; fifth, intentional infliction of emotional distress; sixth, conspiracy to falsely imprison; and seventh, conspiracy to commit assault and battery. It is asserted that this Court has juris- diction of the action pursuant to 28 U.S.C. §1331 (federal question), §1332 (diversity of citizenship) and §1343 (civil rights). Upon consideration of motions to dismiss and motions for summary judgment filed herein by Defendants Howard, Trauscht, Freedom of Thought Foundation, Inc.and the Taylors, the Court on December 30, 1978 entered an Order and Judgment dismissing Plaintiff's cause of action for conspiracy to violate civil rights brought pursuant 135 to 42 U.S.C. §§1983 and 1985(3) and his cause of action for legal mal- practice against Defendants Howard and Trauscht. The Court overruled said Defendants’ motions as they pertained to Plaintiff's causes of action for conspiracy to commit medical malpractice, intentional infliction of emotioual distress, conspiracy to falsely imprison and conspiracy to commit assault and battery. As the Defendants’ motions did not address Plaintiff's causes of action for conspiracy to obstruct justice under 42 U.S.C. §1985(2), the Court did not consider that cause of action in its 1 December 30, 1978 Order and nae 1/ Counsel for the moving parties state that their original motions did not address Plaintiff's cause of action under 42 U.S.C. §1985(2) as they were of the opinion that during the pretrial conference of this action 136 on April 25, 1978, Plaintiff's counsel indicated that Plaintiff's cause of action for conspiracy to obstruct justice under 42 U.S.C. §1985(2) was merged into the Plaintiff's cause of action alleging conspiracy to violate civil rights under 42 U.S.C. §§1983 and 1985(3). Upon examination of the record of this case and notes concerning pretrial conference in this case, the Court has not found any indication that Plaintiff's cause of action under 42 U.S.C. §1985(2) has been merged into his cause of action under 42 U.S.C. §§1983 and 1985(3). 137 The action is now before the Court on the motions for partial summary judgment filed herein by Defendants Howard, Trauscht, Freedom of Thought Foundation, Inc, and the Taylors. Said Defendants have filed briefs in support of their motions and the Plaintiff has filed briefs in response to the same. The Court has conducted a hearing on the motions now at issue. In their instant motions, the moving parties move the Court for a partial summary judgment in their favor on Plaintiff's cause of action under 42 U.S.C. §1985(2) for conspiracy to obstruct justice. They assert that as subsection (2) of §1985 is identical in its scope to subsection (3) of §1985, the requirements which apply to an action under subsection (3) equally 138 apply to an action alleged to arise under subsection (2) and that the Court's determination in its Order of December 30, 1978 that §1985(3) is not applicable in this action also applies to Plaintiff's allegations under 42 U.S.C. §1985(2). The moving parties contend that in both subsection (2) and subsection (3) of §1985, the congressional power to reach the private conspiracy com- Plained of by the Piaintiff derives from the Fourteenth Amendment, and that this Amendment provides no protection against purely private interference but may be violated only by state action, which they maintain is not present in this case. Plaintiff responds that the Defendants’ motions should be over- ruled as subsection (2) of §1985 is 139 directed against the conspiracies of pri- vate persons who interfere with rights secured by the Fourteenth Amendment and that it is thus unnecessary to the main- tenance of an action under that provi- sion to allege or show any state action or involvement by any state official. Plaintiff further argues that even if state action is required for an action under 42 U.S.C. §1985(2), state action is present in this case as the conspir- acy that Plaintiff complains of was made possible only by the action of the state of Oklahoma in clothing Defendant Walter W. Taylor with state authority in the form of a void guardianship order. In a supplemental brief, Plaintiff asserts that either the right of interstate tra- vel or §5 of the Fourteenth Amendment are sources of congressional power for the ap- Plication of 42 U.S.C. §1985(2) to this 140 case, citing Rankin v. Howard, 457 F. Supp. 70 (D. Ariz. 1978), and Britt v. Suckle, 453 F.Supp. 987 (E.D. Tex. 1978). The Defendants have filed a reply to the Plaintiff's response wherein they argue that there is no source of power in this case which would warrant apply- ing 42 U.S.C. §1985 to a private con- spiracy. They additionally argue that 42 U.S.C. §1985 cannot apply in this case as the Plaintiff has failed to allege the existence of the requisite class- based animus necessary under §1985, citing Weiss v. Patrick, 453 F.Supp. 717 (D. R.I. 1978), aff'd mem., 588 F.2d 818 (First Cir. 1978), cert. denied, U.S. _, - 99 S. Ct. 2858, 61 L.Ed.2d 296 (1979). Subsection (2) of 42 U.S.C. §1985 reads in its entirety as follows: 141 If two or more persons in any State or Territory con- spire to deter, by force, intimidation, or threat, from attending such court, or from testifying to any matter pending therein, freely, fully, and truth- fully, or to injure such party or witness in his person or property on ac- count of his having so at- tended or testified, or to influence the verdict, pre- sentment, court, or to in- jure such juror in his per- son or property on account of any verdict, presentment, or indictment lawfully as- sented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impedding, hin- dering, 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, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws; In this action, Plaintiff relies on that part of §1985(2), following the penulti- mate semicolon, which deals with impeding 142 the due course of justice in any State or Territory. As both §1985(2) and §1985(3) derive from the original Section 2 of the Civil Rights Act of 1871, the same analysis of a complaint performed by the Supreme Court in Griffin v. Breckenridge, 403 U.S. 88, 91, S.Ct. 1790, 29 L.Ed.2d 338 (1971), in order to determine whether a cause of action under §1985(3) had been stated is generally followed by courts in determin- ing whether a cause of action under §1985 (2) has been stated. See Britt v. Suckle, supra, 453 F.Supp. at 991; see, e.g., Rankin v. Howard, supra; see generally Smith v. Yellow Freight System, Inc., 536 F.2d 1320 (Tenth Cir. 1976); Jones v. United States, 536 F.2d 269 (Eighth Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 750 (1977). In Griffin, the Supreme Court considered 143 first, whether the facts alleged in the complaint before it fell within the terms of §1985(3). Secondly, recognizing that conduct within the terms of the statute might go beyond the power of Congress to regulate, the Court identified the source of congressional power to reach the con- duct alleged. Applying the foregoing analysis in this case, the Court concludes that Plain- tiff's Complaint satisfies the first of the aforementioned requirements, in that the facts alleged in the Complaint fall within the terms of §1985(2). However, the Court finds that Plaintiff's §1985(2) claims must fail as the Court is unable to determine that Congress has the power to reach the private conspiracy involved in this case. In determining that the conspiracy alleged in Plaintiff's first cause of ac- 144 tion falls within the terms of §1985(2), the Court disagrees with the Defendants’ contention that Plaintiff has failed to allege sufficient facts to establish a class-based animus for purvoses of §1985 (2). It would appear that the religious followers of the Old Catholic Church may constitute a class within the meaning of §1985. See e.g., Murphy v. Mount Car- mel High School, 543 F.2d 1189, 1192 n. 1 (Seventh Cir. 1976); Rankin v. Howard, supra, 457 F.Supp. at 75; Baer v. Baer, 450 F.Supp. 481, 491 (N.D. Cal. 1978). And 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 Cath- Olic Church, and not because of his in- dividual 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, 145 but rather by the fact that he is a mem- ber 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. As stated in Baer: While religious status may differ from racial status because it is not a congenital and inalterable trait, mem- bership in a minority religious group. like membership in a minor- ity racial group, has often excited the fear, hatred and irrationality of the majority. Two thousand years of human compellingly prove that no easier road to marty- dom is found than in adherence to an unpopu- lar religious faith. For these reasons, and because the legislative history does not indicate otherwise, this court concludes that religious discrimination may be encompassed by the terms of § 1985(3). Baer v. Baer, supra, 450 F.Supp. at 491; see Rankin v. Howard, supra, 457 F.Supp. 146 at 75; but see Weiss v. Patrick, supra, 453 F.Supp. at 723-24. It is also clear that §1985 permits actions against private persons for conspiracies which involve no state action. E.g., Griffin v. Breckenridge, supra, 403 U.S. at 101; Taylor v. Nichols, 558 F.2d 561 567 (Tenth Cir. 1977); Rankin v. Howard, supra, 457 F.Supp. at 74. The Court therefore concludes that Plaintiff's Complaint suffi- ciently alleges the elements of a §1985(2) action. However, pursuant to the teachings of Griffin, the Court must then identify a source of congressional power to reach the private conspiracy so alleged. Griffin v. Breckenridge, supra, 403 U.S. at 104; Britt v. Suckle, 147 supra, 453 F.Supp. at 998. In Griffin the Supreme Court found two sources of power to reach the private conspiracy alleged therein: §2 of the Thirteenth Amendment and the right of interstate travel. The Supreme Court determined that these constitu- tional rights were not mere prohibi- tions against objectionable state action but were assertable against private as well as governmental interference. Neither of these sources of congressional power are availing in this case. §2 of the Thirteenth Amendment is not involved in this case as there is no racial class alleged herein. Rankin v. Howard, supra, 457 F.Supp. at 75; see Baer v. Baer, supra, 450 F.Supp. at 492-493. Nor is the second ground for congressional power stated in Griffin, the right to interstate travel 148 present in this case. Examination of the Complaint herein reveals Plaintiff has not alleged that one of the objects of the alleged conspiracy to obstruct justice was to prevent him from traveling among and between the several states or to otherwise impair his federal right to interstate travel. See Rankin v. Howard, supra, 457 F.Supp. at 72; Baer v. Baer, supra, 450 F.Supp. at 492. Therefore, Plaintiff has failed to allege he has suffered from tortious conduct which Congress may reach under its power to protect the right of interstate travel. Baer v. Baer, supra. Accordingly, the Court must in the instant case liook elsewhere in the Constitution for congressional power to reach the private con- spiracy involved herein. 149 In his supplemental Brief in response to the instant Motions Plaintiff maintains that §5 of the Fourteenth Amendment provides con- gressional power to reach the private conspiracy in this case. However, it is well settled that the Fourteenth Amendment is not a protection against purely private interference and may be violated only by the action of a state. See, e.g., District of Columbia v. Carter, 409 U.S. 418, 423, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948); Cohen v. Illinois Institute of Technology, 524 F.2d 818, 828 (Seventh Cir. 1975). This Court has previously decided in its Order herein of December 30, 1978 that there was not state action in this case. 150 To the extent the Plaintiff asserts that §5 of the Fourteenth Amendment provides Congress with the power to reach private conspiracies, the court in Baer v. Baer, supra, considered the same in the context of §1985(3) and determined: It is the conclusion of this court, which finds support in the decisions of the Seventh and FPourth Circuits, that it would be unsound in the absence of guidance from the Supreme Court to hold Congress has the power under § 5 of the Fourteenth Amendment to reach the private conspiracy in this case. porphy v. Mount Carmel High School, ° at ? Bella ° Mason's Stores, Inc., S0t F.2d at 507. Aside from the absence of a firm constitutional foothold this court is persuaded by the l [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1041%3A2. Public record. Not legal advice.