Appendix — Dotson v. Mountain Mission School, Inc.

UNITED STATES COURT OF APPEALS

FOR THE FOURTH DISTRICT

No. 79 — 1771

Johnny J. Dotson and

Daniel F, Bloch

Appellants

v.

The Mountain Mission School, Inc., et al.,

Appellees

Appeal from the United States District Court for the

Western District of Virginia, at Big Stone Gap

Glen M. Williams, District Judge

Submitted December 10,1981 Decided October 18, 1982

Before WINTER, Chief Judge, BUTZNER and RUSSELL

Circuit Judges

13

PER CURIAM:

Daniel F. Bloch, pro se plaintiff, is an individual who has

become interested in the activities of The Mountain Mission

School, an orphanage located in Western Virginia. He has never

been a resident or employee of the orphanage. He believes that

children at the orphanage are illegally abused, and that public

officials and private individuals have committed illegal acts,

some of them harming Bloch, in an effort to cover up the

abuses.

Bloch filed the present case in the district court asserting

these claims and seeking assorted forma ‘ declaratory, injunc-

tive and monetary relief. The alleged causes of action were pri-

marily grounded on 42 U.S.C. § 1985. Named as defendants

were the orphanage and forty-two individuals, including

officials of the United States, Virginia, Ohio and Florida.

Named as plaintiffs were Bloch and Johnny J. Dotson, a minor

who was then residing with Bloch in Florida, but who had

previously resided in the orphanage. Bloch was the only person

to sign any of the plaintiffs’ plendi g in the district court, but

he asserted that he was Dotson’s legal guardian and that he was

signing on Dotson’s behalf as well as for himself.

The district court ultimately dismissed the complaint

and related pleadings on a number of grounds, and plaintiffs

appeal. While they assign twenty-four grounds of reversible

error, we perceive seven separate issues which merit discussion.

We will treat them seriatim, setting forth additional facts where

required. We affirm judgment in part, and we reverse in part and

remand for further proceedings.

I,

MANDAMUS

Bloch sought a writ of mandamus compelling federal

officials to prosecute various defendants. The district court

dismissed this portion of the case on the ground that mandamus

14

will not lie to compel the performance of an act unless it is

ministerial in nature, which the initiation of prosecution is not.

See Record on Appeal at Tab 36, pages 3—4. The dismissal was

correct. In any event, in a subsequent pleading, the plaintiffs

explicitly abandoned this portion of the case. See id. at Tab 38,

page 9A.

II.

THE FREEDOM OF INFORMATION ACT

Bloch sought an injunction under the Freedom of Infor-

mation Act compelling federal officials to turn over certain

records to him. The district court dismissed this portion of the

case on the ground that “such a suit would be against the

United States and should be filed in the jurisdiction in which

the plaintiffs reside [i.e., Florida] as set forth in 28 U.S.C. §

1402.“ Id. at Tab 36, page 4. This reasoning was erroneous. The

Freedom of Information Act itself provides that suits to enforce

it may be brought “in the district in which the complainant

resides, or has his principal place of business, or in which the

agency records are situated... 5 U.S.C. § 552(a)(4)(B) (1976)

(emphasis added). The pleadings do not indicate where the

agency records at issue are kept. They may well be kept in

the Western District of Virginia, where the suit was filed. In a

subsequent pleading, however, the plaintiffs also explicitly

abandoned this portion of the case, see Record on Appeal at

Tab 38, page 9, so that any error on the part of the district

court was immaterial.

III.

HABEAS CORPUS

On May 29, 1975, in a state court located in the Western

District of Virginia, Bloch was convicted on two counts of

abduction. Bloch was charged with taking two wards of the

Mountain Mission School without obtaining the orphanage’s

permission. As part of the present suit, Bloch sought a writ of

habeas corpus overturning this conviction. The district court

dismissed this portion of the case for failure to exhaust state

15

remedies. Bloch subsequently abandoned this portion of the

case, see Record on Appeal at Tab 38, page 11, so that we need

not consider the propriety of the dismissal.

IV.

OHIO ORPHANS

The plaintiffs claim that Ohio welfare officials violated

Ohio law by placing Ohio orphans in The Mountain Mission

School, an unapproved institution. The district court rejected

this claim on two grounds: (1) Ohio welfare officials have

removed the Ohio orphans from The Mountain Mission School,

thereby mooting the controversy; (2) More importantly, the

plaintiffs never had standing to challenge the practice. We agree

that plaintiffs lacked standing to raise this issue.

V.

UNCONSTITUTIONALITY

The plaintiffs maintain that Va. Code § 63.1—218 (1980)

is unconstitutional under the Equal Protection Clause of the

Fourteenth Amendment. The statutory provision reads as

follows:

None of the provisions of this chapter [regulating

orphanages and other child · care institutions] shall

apply to any private school or charitable institution

incorporated under the laws of this State, which is

located west of Sandy Ridge and on the watersheds

of Big Sandy river, and to which no contributions

are made by the State or any agency thereof.

The Mountain Mission School may well be the only child-care

institution thereby exempted from regulation. The district

court never mentioned this claim, although it dismissed the

entire case.

As a preliminary matter, we think that the plaintiffs

have failed to join a proper defendant for this portion of the

case. A suit challenging the constitutionality of this statutory

provision should be brought against the state, the state agency

16

that would regulate The Mountain Mission School but for the

exemption, or the state official in charge of that agency. None

of these are defendants in the present case.

In any event, we think that the statute is constitutional.

We do not perceive that the distinction drawn by the Virginia

legislature harms a discrete and insular minority or impinges

on a fundamental interest. (Even if orphans are a discrete and

insular minority, heightened scrutiny would not be appropriate

because this statute draws a distinction between two different

groups of orphans, rather than between orphans and non-

orphans.) Therefore, the applicable test is the minimum ration-

test. Only one time in the last half century has the

Supreme Court struck down a statute under this test, see Morey

v. Doud, 354 U.S. 457 (1957) (striking down a law that

exempted the American Express Company by name from

regulations imposed on sellers of money orders),! and recently

that decision was explicitly overruled, see City of New Orleans

v. Dukes, 427 U.S. 297, 306 (1976) (per curiam opinion rep-

resenting the views of seven Justices) (upholding a grandfather

clause that exempted two vendors from a ban on pushcarts in

the French Quarter). In the majority of cases of this sort, the

Court has not found it necessary to v ‘te an opinion, but

instead has rejected the challenge summarily. See G. Gunther,

Cases and Materials on Constitutional Law, 674 n.1 (9th ed.

1975). Moreover, we are unaware of any other case where a

claim of this sort was brought by a “customer” of an unreg-

ulated entity, seeking an extension of the regulation. Rather,

claims of this sort bave been brought by regulated entities,

and the remedy, if any, was thought to be invalidation of the

regulation. We conclude that there is no merit to this portion

of the plaintiff's case.

1. The Burger Court ostensibly has applied this test on a

number of occasions to strike down statutes, but these decisions

17

are generally interpreted as implicit extensions of heightened

scrutiny to new subjects (e.g., gender-based discriminations).

See, e.g., G. Gunther, Cases and Materiels on Constitutional

Law, 663 un. 13, 15 (9th ed. 1975).

; VL

INJUNCTIVE AND COMPENSATORY RELIEF FOR

OTHER INJURIES

Having decided the five more narrow portions of this

case, we are left with an open-ended request for injunctive and

compensatory relief for other injuries.

A. Jurisdiction

At the outset, it is appropriate to determine which of the

many defendants are properly before us and which should be

dismissed for lack of personal jurisdiction. The plaintiffs’

abandonment of the mandamus and Freedom of Information

Act portions of their case, earlier mentioned, took the form of

an abandonment of all claims against defendants William Web-

ster and Griffin Bell. That leaves forty-one defendants, includ-

ing Tae Mountain Mission School. These forty-one defendants

may be divided into five groups for the purpoce of determining

if personal jurisdiction exists:

1. The Virginia Defendants. - The Mountain Mission

School, sixteen of its officers, directors and employ-

ees, and eight other individuals (Williams, McGlothlin,

Persin, Shields, J. Marshall Coleman, Sergent,

Osborn, and Gibson) fall into this group.

2. Makely. — This defendant is a United States Magis-

trate in Ohio. There is no indication in the record

that he was ever served. He has filed no pleadings in

the case.

3. Sawyer. - This defendant is a private attorney in

Florida. He filed an answer and a motion to dismiss

but failed to allege a lack of personal jurisdiction.

18

4. Other Ohio and Florida Defendants. - Twelve ind-

ividuals (Wainwright, Griscom, Paul Coleman,

Schwertfager, Donna Gallion, Mullett, Beck, Asa

Mellor, Wanda Mellor, Gary Oyler, Ruth Oyler, and

Ottmar Gallion) fall into this group. They filed

answers that explicitly alleged a lack of personal

jurisdiction.

5. Pennsylvania Defendants. - Two individuals (Charles

Lambert and Lynda Lambert) fall into this group.

They filed a pro se “motion to dismiss” which failed

to allege a lack of personal jurisdiction.

Unless an exception is provided by federal law or the law

of the forum state, a federal court may exercise personal juris-

diction over a nonconsenting defendant only if he is served

within the boundaries of the forum state. See Fed. R. Civ. P.

4). Federal law does not create any exceptions that are ever

conceivably applicable to the nonresident defendants in this

case. See generally 4 C. Wright & A. Miller, Federal Practice and

Procedure % 1118, 1125, at 523 n. 3 (1969 & 1981 pocket

part). Virginia state law creates only one exception that is

even conceivably applicable to the nonresident defendants in

this case: the subsection of the Virginia long-arm statute which

covers a defendant “[c]ausing tortious injury in this State

by an act or omission outside this State if he regularly does or

solicits business, or engages in any other persistent course of

conduct, or derives substantial revenue from goods used or

consumed cor services rendered, in this State.” Va. Code §

8.01-328.1(A)(4)(1981 Cumm. Supp.) (emphasis added). It

does not appear that a Virginia court has ever construed the

emphasized language, but we do not think that it extends to

any of the nonresident defendants in this case. Cf. World-Wide

Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (holding

that it was unconstitutional for Oklahoma to apply a similar

long-arm statute to an East Coast auto distributor and an

19

East coast auto retailer, even though an East Coast customer

drove his auto to Oklahoma, was involved in an accident there,

and allegedly was injured as a result of a defect in the auto).

Of course, a federal court may exercise jurisdiction over

a nonresident defendant who consents thereto by failing to

allege a lack of personal jurisdiction in his answer or in his first

motion, whichever comes first. See Fed. R. Civ. P. 12(h)(1). It

is clear that Sawyer and the Pennsylvania defendants consented

in this manner to the exercise of personal jurisdiction over

them. Makely’s status is unclear. Some courts have heid that a

defendant who fails to respond to a complaint in a timely

fashion does not thereby consent to the exercise of personal

jurisdiction over him, see cases cited in 5 C. Wright & A. Miller,

Federal Practice and Procedure § 1391, at 857 n.44 (1969),

but the better view is that, if the defendant were served, his

. failure to respond in a timely fashion constitutes consent, see

id. § 1391, at 857-58. Therefore, the question of whether the

district court has personal jurisdiction over Makely depends on

whether he was served, which is something that is not reflected

in the present record.

We conciude that only the defendants in the fourth group

should be dismissed for lack of personal jurisdiction at this

time. On remand the district court should determine whether

Makely was served.

B. The Merits.

The request for injunctive and compensatory relief is

grounded upon 42 U.S.C. § 1985. Section 1985(1) prohibits

conspiracies to prevent federal officials by force, intimidation,

or threat,” from discharging their duties. The first half of §

1985(2) prohibits conspiracies to prevent persons from attend-

ing or testifying in federal court. The second half of § 1985(2)

prohibits conspiracies to obstruct justice in state court “with

intent to deny any citizen the equal protection of the laws.”

Finally, § 1985(3) prohibits conspiracies to deprive any person

20

ates

:

“of the equal protection of the laws, or of equal privileges and

immunities under the laws.”

The factual allegations in the complaint do not implicate

§ 1981(1) and do implicate the second half of § 1985(2) and

§ 1985(3). As for the first half of § 1985(2), the complaint

accuses defendant Persin of threatening Bloch in order to

prevent him from testifying in a civil suit, but fails to indicate

in what court that civil suit was to have been filed. See Record

in Appeal at Tab 1, page 2. The complaint also accuses assorted

individuals of agreeing to dismiss a federal suit brought by Ohio

Welfare officials against The Mountain Mission School in order

to prevent orphans, presumably including plaintiff Dotson,

from giving damaging testimony. See id. at Tab 1, page 3.2

Also, an inference can reasonably be drawn from the complaint

as a whole that one purpose of the illegal conduct in which the

defendants allegedly engaged was generally to prevent the

filing of 2 federal suit or the testimony of the plaintiffs therein.

Given that pro se pleadings must be read liberally, we

think that the plaintiffs must be afforded the opportunity to

develop a claim under both halves of § 1985(2) and under

§ 1985(3) on remand in the district court if the other pre-

requisites for a suit under those provisions are present.

* Admittedly, this allegation is improbable, since

some of the same individuals filed the suit in the first

place.

The district court gave ſive reasons for dismissing some or

all of this portion of the case as against some or all of the

defendants.

(1) Class-based animus was a prerequisite and was not

present 3 :

(2) The statute of limitations had expired for Bloch’s

claims: | |

‘ 21

(3) Defendant Persin enjoyed judicial immunity;

(4) The defendant Florida parole officials did nothing

wrong because they had a right to supervise the conduct of

parolee Bloch;

(5) The complaint did not even allege that the directors

of The Mountain Mission School or sixteen other individual

defendants did anything wrong.

We turn to these reasons.

While courts have disagreed on whether class-based

animus is an essential element for a violation of the first half of

§ 1985(2), see cases cited in Kimble v. D.J. McDuffy, Inc.,

70 L.Ed.2d 651 (1981) (White, J., dissenting from a denial of

certiorari), they agree that it is an essential element for

3. Originally, the district court also held that state

action was a prerequisite and was not present for many

of the defendants. In a motion for reconsideration, the

plaintiffs pointed out that state action is not a pre-

requisite for a suit under § 1985. The district court

modified its order accordingly.

4. Originally, the district court also held that the

statute of limitations had expired for Dotson's claims.

In a motion for reconsideration, the plaintiffs pointed

out that Dotson had been a minor until after the suit

was filed, so that the limitations period had never started

to run on his claims. The district court modified its

order accordingly.

a violation of the second half of § 1985(2), see, e.g., McCord

v. Bailey, 636 F. 2d 606 (D.C. Cir. 1980) (holding that it is

not an essential element for a violation of the first half of

§ 1985(2) but that it is an essential element for a violation of

the second half of § 1985(2)), cert denied, 451 U.S. 983 (1981);

Brawer v. Horowitz, 535 F. 2d 830 (3 Cir. 1976) (same),

22

and the Supreme Court has held that it is an essential element

for a violation of § 1985(3), see Griffin v. Breckenridge, 403

U.S. 88 (1971). We find persuasive those decisions holding

that class-based animus is not a prerequisite for a violation of

the first half of § 1985(2) but that it is a prerequisite for a

violation of the second half of § 1985(2). The “equality”

language that is the foundation for the class-based animus

requirement in § 1985(3) is conspicuously absent from the

first half of § 1985(2) but is present in the second half of

§ 1985(2).

The complaint clearly alleges that the conspiracy was

motivated in part by animus against orphans, and we think that

that is enough to invoke the portions of § 1985 that require

class-based animus. In Griffen, the Supreme Court dealt with

a conspiracy motivated by racial bias - the core concern of

§ 1985 - but stated in a footnote: “We need not decide, given

the facts of this case, whether a conspiracy motivated by

invidiously discriminatory intent other than racial bias would

be actionable under the portion of § 1985(3) before us.”

403 U.S. at 102 n.9. At that point, the Griffen court cited

the remarks of Senator Edmunds, the Senate manager of the

Ku Klux Klan Act of 1871, which enacted § 1985. Senator

Edmunds opined that the statute would cover Democrats,

Catholics or Methodists. See Cong. Globe, 42d Cong., Ist

Sess. 567 (1871). We have recently relied in part on those

remarks in holding that § 1985(3) covered a conspiracy moti-

vated in part by animus against members of the Unification

Church (e., Moonies ). See Ward v. Connor, 657 F. 2d

45 (4 Cir. 1981), cert. den. sub nom. Mandelkorn v. Ward,

50 U.S.L.W. 3570 (Jan. 18, 1982).

Since Griffen, the Supreme Court has not faced the

question of what classes are protected by the portions of

§ 1985 that require class-based animus, and the decisions of the

lower courts are impossible to reconcile, see cases cited in

23

Scott v. Moore, 640 F. 2d 708, 718-24 (5 Cir. 1981). We think,

however, that orphans are far more analogous to membe of

racial minorities than are members of a political party, whom

Senator Edmunds would have included, or members of other

groups that have been included by the courts, see, e. f., Scott

v. Moore, supra (nonunion workers.)

It is not enough, however, to conclude that § 1985 was

meant to cover the conspiracy alleged in this case. It must also

be true that Congress had the power to prohibit uch a con-

spiracy. See Griffen v. Breckenridge, supra; Ward v. Connor,

supra; Bellamy v. Mason's Stores, Inc., 508 F. 2d 504 (4 Cir.

1974). In Griffen, the Supreme Court held that Congress had

the power to reach a private conspiracy motivated by racial

bias against blacks under the Thirteenth Amendment, which is

phrased as a positive command rather than as a limitation on

government and thus involves no state action requirement.

The Court also stated that Congress had the power to reach

the plaintiffs’ right to travel, which is guaranteed - like the

right to be free from slavery - by a positive (albeit implicit)

command, rather than by a limitation of government. The

Court expiicitly declined to decide whether Congress had the

power to reach private conspiracies under the Enforcement

Clause of the Fourteenth Amendment, the other clauses of

which limit only the states.

In Bellamy, we dealt with a private conspiracy motivated

by animus toward the Ku Klux Klan (an ironic development

given the origin of § 1985). Neither the Thirteenth Amendment

nor the right to travel was implicated, and we avoided the

question of congressional power by interpreting § 1985 not to

reach private conspiracies unless they implicated one of the

sources of power relied on by the Griffen court. Finally, in

Ward, we held that Congress had the power to reach a private

conspiracy to deprogram a “Moonie” because one object of

the conspiracy had been to interfere with the plaintiff's right

24

to travel. There, we said: ITI be complaint specifically alleges

that interference with the plaintiff's right to travel was one cf

the objects of the conspiracy and the fact that the conspiracy

had oth - objectives is immaterial.” 657 F. 2d at 48. The

complaint in the present case contains numerous allegations

that interference with the plaintiffs’ right to travel was one of

the objects of the conspiracy, so Ward compels the conclusion

that Congress had the power to reach the conspiracy alleged in

this case.

Another possible problem arises at this point. Plaintiff

Dotson is a mei der of the protected class, but plaintiff Bloch is

not. By its terms, the portions of § 1985 that require class-

based animus do not require that the plaintiff be a member of

the protected class, but only that the plaintiff be harmed as a

result of a conspiracy motivated in part by animus toward a

protected group. We think that the statute should be accorded

its literal meaning. The Supreme Court has expressly adopted

this broad rule of standing under a related statute, see Sullivan

v. Little Hunting Park, Inc., 396 U.S. 229 (1969) (applying

42 U.S.C. § 1982), and support for doing the same under the

portions of § 1985 that require class-based animus can be found

in Griffen itself, see Novotny v. Great American Federal Savings

and Loan Assoc., 584 F. 2d 1235, 1245 (3 Cir. 1978), rev'd on

other grounds, 442 U.S. 366 (1979) (expressing no disagree-

ment with the lower court's holding that the plaintiff had

standing despite the fact that he was not a member of the

protected class.) In Griffen, the plaintiffs alleged that they

were attacked because the conspirators mistakenly thought

that one of the plaintiffs’ traveling party - who did not join as

a plaintiff - was a civil rights worker. The Griffen Court held

that the plaintiffs had standing, even if the supposed civil

rights worker had been the only target of the conspiracy,

simply because they were injured as the result of the con-

spiracy. See 403 U.S. at 103. This holding is not directly

25

applicable in the present case, because the plaintiffs in Griffen

were members of the protected class, but the holding does seem

to indicate that Bloch has standing. We therefore conclude that

he does.

The district court ruled that Bloch’s claims were barred

by the statute of limitations. In a conspiracy case, the limit-

ations period begins to run when the last act is committed in

furtherance of the conspiracy. The plaintiffs have at least

alleged that such an act occurred within a few months of the

filing of the suit. See Record on Appeal at Tab 1, page 4. Upon

further development of the facts, it may turn out that a

dismissal of Moch's claims under the statute of limitations

would be appropriate, but we think that a dismissal on this

ground at this stage was erroneous.

The district court ruled that defendant Persin enjoyed

absolute judicial immunity from this suit. If the allegations

against Persin, a state judge, are taken to be true — if he

informed counsel for residents of The Mountain Mission School

who wished to filed suit that, if Bloch testified in that pro-

ceeding, he would imprison Bloch — we think that this defend-

ant acted in clear absence of all jurisdiction, so that judicial

immunity would not apply. See Stump v. Sparkman, 436 U.S.

349 (1978). We think the district court was in error in dis-

missing the claims against Persin on this ground.

Because the Florida welfare officials must be dismissed

for lack of personal jurisdiction, we do not consider the correct-

ness of the district court’s ruling that the defendant Florida

welfare officials did nothing wrong because they had a right

to supervise the conduct of parolee Bloch.

Finally, it is true that the text of the complaint fails

even to mention many of the named defendants. There are

many serious allegations, however, in which the actor is not

named. Since pro se complaints must be read liberally, we

think that it was premature to dismiss defendants on this basis

at this stage of the proceedings. A number of the defendants

objected to the vagueness of the complaint and demanded

strict proof. Instead of outright dismissal, t e plaintiffs should

be required to clarify their allegations. When this has been

done, a number of summary dismissals may well be approp-

riate.

VIL

BLOCH’S LEGAL CAPACITY TO SUE FOR DOTSON

In the district court, The Mountain Mission School, all

sixteen of its officers, directors and employees, Williams and

Osborne asserted that Dotson’s claims against them were not

properly before the court because Dotso\: had signed none of

the plaintiffs’ pleadings. Dotson’s failure to sign any of the

plaintiffs’ pleadings would preclude litigation of his claims

against these defendants unless Bloch, who did sign all the

pleadings, was an attorney or otherwise had legal capacity to

sue on Dotson’s behalf. See Fed. R. Civ. P. 11. 17. Bloch is

not an attorney. Bloch alleges that he was appointed Dotson’s

legal guardian by a Florida court, but does not allege that he

was appointed Dotson’s legal guardian by a Virginia court.

We think we must look to Virginia law to determine whether

Bloch has legal capacity to sue on Dotson’s behalf in a district

court located in Virginia. See 6 C. Wright & A. Miller, Federal

Practice & Procedure § 1571, at 780-81 (1971).

In Holt v. Middlebrook, 214 F. 2d 187 (4 Cir. 1954) we

applied Va. Code § 26-59, which provides that no person not a

resident of Virginia shall be appointed or allowed to qualify or

act as a personal representative, or be appointed as a guardian,

unless a resident is appointed as a personal representative or

guardian, as the case may be. We held that this statute pro-

hibited a nonresident personal representative from maintaining

an action against Virginia residents in a district court located in

Virginia unless a resident had also been appointed as a personal

representative. However, we later held in Vroon v. Templin. 278

27

.

F. 2d 345 (4 Cir. 1960), that this statute did not prohibit a

nonresident guardian from maintaining an action against Vir-

ginia residents in a district court in Virginia. It was our view

that the right of guardian to sue in a district court in Virginia

was governed by the common law of Virginia. We left that

question to the district court.

Unfortunately, there is no definitive Virginia decision

indicating what the common law of Virginia is with respect to

the right of a guardian not appointed by a Virginia court to sue

on behalf of his alleged ward. In such circumstances we are

obliged to make an informed prediction of how a Virginia court

would decide the question if it were presented with it.

The majority rule at common law is that nonresident

guardians may not bring suit out of the state of their appoint-

ment unless they obtain an ancillary appointment from the

state in which they are suing. See 6 C. Wright & A. Miller,

supra, § 1565, at 754 - 56. Many states with the majority

commondaw rule have relaxed it by legislatio permitting

foreign fiduciaries to sue locally. See id. Virginia has such a

statute but it is very limited in scope. Va. Code § 26 - 60 per-

mits a guardian who has been lawfully appointed in the state

where a nonresident infant resides to sue in Virginia for auth-

ority to remove property or money in Virginia to which the

infant is entitled to the jurisdiction of the infant’s domicile.

The statute, of course, does not apply here because the pur-

pose of this suit is not to remove property or money to which

Dotson is entitled from Virginia to another jurisdiction. But we

think that the enactment of the statute was clear recognition

on the part of the Virginia legislature that the majority

common-law rule prevailed in Virginia and that it was

necessary to modify it to some extent. Since the modification

is inapplicable here, our conclusion is that the majority

common-law rule prevails and Bloch is not permitted to sue

on behalf of Dotson in Virginia because he was not appointed

as guardian of Dotson by a Virginia court of competent juris-

diction. The entire complaint on behalf of Dotson against the

defendants who challenged loch's legal capacity to sue on

Dotson's behalf was properly dismissed for the reasons we have

expressed.

VIII.

We summarize our conclusions. We affirm the district

court’s dismissal of: (1) the prayer for writ of mandamus,

(2) the request for relief under the Freedom of Information

Act, (3) the application for a writ of habeas corpus, (4) the

challenge to the decision by Ohio welfare officials to place

Ohio orphans in The Mountain Mission School, (5) the chal-

lenge to the constitutionality of the Virginia statute exempting

The Mountain Mission School from regulation, (6) all claims

against defendants William Webster and Griffen Bell, (7) all

claims against all Ohio and Florida defendants other than

Makely and Sawyer, and (8) all of Dotson’s claims against

The Mountain Mission School, its sixteen defendant officers,

directors and employees, Williams and Osborne. In all other

respects, we vacate the district court’s judgment and remand

the case for further proceedings consistent with this opinion.5

AFFIRMED IN PART;

VACATED IN PART

AND REMANDED.

5. In addition to a lack of personal jurisdiction and

Dotson’s failure to sign any of the pleadings, other

defenses to this suit were raised below but not addressed

by the district court. On remand, the remaining defend-

ants are of course free to press any such defenses which

they raised in a timely fashion.

—

* ~ ~

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

BIG STONE GAP DIVISION

JOHNNY J. DOTSON, et al.,

Plaintiffs

v. Civil Action No. 79—0125-

THE MOUNTAIN MISSION SCHOOL, et al.

Defendants

ORDER

In accordance with the Memorandum Opinion of this

day, itt is ORDERED that this suit be dismissed as to all defend -

ants and stricken from the docket. Also, plaintiff is ORDERED

to cease all discovery.

The Clerk of this court is directed to send certified

copies of this Order to plaintiffs and to counsel for defend-

ants.

ENTER: This 19 day of September 1979.

/s/ Glen M. Williams

U.S. District Judge

et

MEMORANDUM OPINION

This suit alleges jurisdiction of the court under 42 U.S.C.

1988 and 1988; 28 U.S.C. A 1331, 1332, 1361, 1343, 1391,

1402, 1736, 2221, 2254, and 2401; and Rule 2 of the Federal

Rules of Civil Procedure.

The suit seeks injunctive relief and damages in

the amount of One Hundred Million Dollars ($100,000,000.00)

from the various defendants for their depriving plaintiffs of

rights guaranteed by the Fourteenth Amendment to the

Constitution of the United States. Plaintiffs also seek injunctive

relief against the deprivation of rights, privileges and immunities

granted by the First and Sixth Amendments to the United

States Constitution.

The defendant, Mountain Mission School, is a private

orphanage and thereby is exempt from Virginia welfare laws.

It is well settled that suits brought pursuant to 42 U.S.C. §

1985 relate to defendants acting under power derived by the

authority of the state, or rather, “under color of state law.”

The plaintiffs allege that all the acts of the defendants in this

case were under color of authority vested in them by the laws

of Florida and Virginia. But the employees and officers of the

Mountain Mission School were acting as employees of and

associated with a private orphanage and in no manner acting

under color of state law. In accordance with Henig v. Odorioso,

385 F. 2d 491 (3rd Cir. 1967), cert. den., 390 U.S. 1016 (1968)

employees of private orphanages are not liable for their act 1s

under 42 U.S.C. § 1985.

Furthermore, the plaintiffs allege that in 1974 the

Mountain Mission School, or some of its agents, charged the

plaintiff Bloch with abduction of the plaintiff Dotson that

resulted in the plaintiff Bloch being convicted in the Circuit

Court of Buchanan County, Virgina on a charge of abduction.

The suit further contends that plaintiff Bloch’s constitutional

31

rights were violated because his conviction was based on a plea

of guilty which he now contends was coerced. Assuming that

the Mountain Mission School could be sued under Section

1985, the matters which occurred regarding the plaintiff's

conviction are now barred by the two-year Statute of Limit-

ations. Brady v. Sowers, 453 F. Supp. $2 (W.D. Va. 1978).

It is further to be noted that while the plaintiffs have sued all

of the members of the Board of Directors of the Mountain

Mission School, it is conceded is the suit that they had no

personal knowledge of anything which occurred but merely

alleges that they should have known. So, there is no conspiracy

alleged as to the members of the Board of Directors of the

Mountain Mission School, and, therefore, the action fails.

See Wilkins v. Rogers, 581 F. 2d 399 (4th Cir. 1978).

For the foregoing reasons, the Mountain Mission School;

Charlies M. Sublett, President; James Marvin Swiney, Vice

President; Mrs. James Marvin Swiney, Secretary; Mrs. Charles

M. Sublett, Treasurer; Paul M. Platt; Mabel Abbott; Jim Stanley:

Minnie Grannert; Dr. Thomas D. McDonald; Dr. J. P. Suth-

erland; Fred Short; Herman T. Wells; Reverend Clarence Green-

leaf; Mrs, Sylvia Raines; Mrs. B. D. Phillips; and, Bud

Degaffrillo, all of whom are sued as either directors or

employees or officers of the Mountain Mission School, are

hereby dismissed from the suit, and as to them, it is stricken

from the docket.

Plaintiffs have also filed suit against Robert Beck, who is

described as the prosecuting attorney of Holmes County, Ohio;

Asa Mellor; Wanda Mellor; Gary Oyler; Ruth Oyler; Charles

Robert Lambert; Mrs. Charles Robert Lambert; Edward C.

Sawyer, attorney; Birg Sergent, attorney; Willard Osborne,

head jailer, Buchanan County Virginia; Roger J. Makely. U.S.

Magistrate, Dayton, Ohio; Ottmar G. Gallion; Keary Bob

Williams, former Commonwealth’s Attorney for Buchanan

County, Virginia; Donald A. McGlothlin, Delegate to the

32

Virginia Legislature; Pleasant C. Shields, Director, Virginia

Parole and Probation Board; and J. Marshall Coleman, Attorney

General of ‘Virginia. Nothing is alleged in this suit as to any

actions on the part of any of these parties which have violated

the constitutional rights of the plaintiffs. Therefore, it is

ADJUDGED AND ORDERED that all of the abovementioned

parties be dismissed as parties defendant to this suit.

Plaintiffs have also sued Nick E. Persin, Circuit Court

Judge, Buchanan County, Virginia. In the allegations in the suit,

plaintiff Bloch alleges that his constitutional rights were denied

him in his trial because Judge Persin had committed several acts

against the plaintiff Bloch and his witnesses and other parties.

The court finds that judges, unless acting in clear absence of all

jurisdiction, are immune from suit under 42 U.S.C. § 1985. See

Stump v. Sparkman, 435 U.S. 349 (1978). Therefore, this suit

is dismissed as to the defendant Nick E. Persin.

It is further to be noted that it is an essential element of

an action under 42 U.S.C. § 1985 that there be some racial or

otherwise class-based, invidious discrimination. Slavin v. Curry,

574 F. 2d 1256 (Sth Cir. 1978). Construing plaintiffs’ com-

plaint in a light most favorable to them, there are no allegations

of any racial or otherwise class-based discrimination that would

permit a suit under this Section.

The plaintiffs have also sued Griffin Bell, Attorney Gen-

eral of the United States; William Webster, Director of the

Federal Bureau of Investigation, Department of Justice; and,

Richard L. Gibson, the FBI agent in Bristol, Virginia. As to

these defendants, plaintiffs request that this court order the

Justice Department to file criminal charges against the Moun-

tain Mission School and also complain that the Federal Bureau

of Investigation has failed to furnish plaintiff Bloch information

in his file under the Freedom of Information Act. Plaintiffs

therefore have filed a motion under 28 U.S.C. § 1361 for

mandamus against the Attorney General and the FBI. In this

33

regard, it is to be noted that the United States District Court

has the authority to enter an order of mandamus against an

officer or an employee of the United States; however, it is well

established that mandamus shall only be entered to require

the performance of a ministerial act. Vishnevsky v. United

States, $81 F. 2d 1249 (7th Cir. 1978). The decision of whether

or not to prosecute is a discretionary act that is vested in the

Attorney General of the United States and in the Justice

Department and its various agencies, including the Federal

Bureau of Investigation, and it 4 not incumbent upon this

court to order these parties to bring criminal proceedings

against an individual or an organization. Therefore, the petition

for a writ of mandamus is denied and the allegations against the

defendants Griffin Bell, William Webster and NMchard L. Gibson

are hereby dismissed.

As to the plaintiffs’ complaint regarding the failure of

these defendants to comply with the Freedom of Information

Act, such a suit would be against the United States and should

be filed in the jurisdiction in which the plaintiffs reside as set

forth in 28 U.S.C. § 1402. Since plaintiffs reside in Florida, the

action is not properly brought before this court.

Plaintiffs have also sued Paul H. Coleman, former Assist-

ant Director of Ohio Department of Public Welfare; David W.

Schwertfager, Chief, Bureau of Services for Families and Child-

ren, Ohio Department of Welfare; Donna Jean Gallion, Director,

Holmes County Welfare Department; and Mrs. Sharon Mullett,

caseworker of the Holmes County Welfare Department. The

allegations concerning the Ohio Department of Welfare relate

to the fact that Ohio law forbids sending a child to an insti-

tution not approved in writing by the Ohio State Welfare

Department. Plaintiff Bloch complains that the Ohio Welfare

Department did not properly take action to remove Ohio

children from the custody of the Mountain Mission School,

34

which was not an approved institution. The ;laintiffs in this

suit do not have standing to file suit for other children who may

have been sent from the Ohio Welfare Department to the Moun-

tain Mission School and it is not alleged that this is a continuing

matter that is not being taken care of at this time. See Curtis v.

Peerless Ins. Co., 299 F. Supp. 429 (D.C. Minn. 1969). Also, the

plaintiffs make certain complaints regarding Robert Watts.

Similarly, these plaintiffs do not have standing to bring any

suit on behalf of Robert Watts. Furthermore, it is not alleged

that the aforementioned public officials of Ohio have in any

way violated the constitutional rights of plaintiffs in this suit

and, for this reason, the suit is dismissed as to all of these

Suit has also been filed in this case against Louis L.

Wainwright, Secretary, Florida Department of Corrections,

and Rosemary Griscom, Parole and Probations Officer, Florida

Department of Corrections. Certain allegations are made

against the Florida Probation system and the Florida Depart-

ment of Corrections, although no specific allegations have been

made against the defendants who are named in this suit.

‘ Plaintiff Bloch complains that he was denied permission from

the Florida Department of Corrections to take the plaintiff

Dotson to California to testify before United States Senator

Allen Cranston; that the Florida Department of Corrections

had denied permission for Dotson and Bloch to live together;

and that psychiatric examinations have been required by the

Florida Department of Corrections. It appears from the com-

plaint that the plaintiff Bloch has been paroled and is subject

to the supervision of the Florida Department of Corrections.

Hence, this agency has the right and duty to supervise a person

under parole and, among other matters, they have the right to

regulate the travel of the parolees. See generally 59 Am. Jur.

Pardon and Parole % 77-89 (1971). For this reason, suit is

dismissed as to these defendants.

35

Finally, plaintiff Bloch seeks habeas corpus relief based

upon an improper conviction in the Circuit Court of Buchanan

County, Virginia. Suffice it to dismiss this action because plain-

tiff has not exhausted his remedies in the state system. The

federal habeas corpus statute, 28 U.S.C. § 2254(b), specifically

requires exhaustion of any adequate state remedy. Although

plaintiff's time for appeal has run, he can still seek state habeas

corpus relief. See, Slayton v. Parrigan, 215 Va. 27, 205 S. E. 2d

680 (1974).

Accordingly, it is ADJUDGED AND ORDERED that

this suit be dismissed as to all defendants and stricken from

the docket.

The Clerk of this court is directed to send certified

copies of this Memorandum Opinion and Order to plaintiffs and

to counsek for defendants.

ENTER: This 19 day of September, 1979.

/s/ Glen M. Williams

United States District Judge

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

BIG STONE GAP DIVISION

DANIEL F. BLOCH, et al.,

Plaintiffs

v. CIVIL ACTION NO, 79- 0125-3

THE MOUNTAIN MISSION SCHOOL, et al.,

Defendants

ORDER

In accordance with the Memorandum Opinion of this

day, it is ORDERED that plaintiffs’ motion for reconsideration

be dismissed, However, it is further ORDERED that the

dismissal Order of this case dated September 19, 1979, be

vacated as to its findings on state action requirements under

42 U.S.C. § 1985 and as to the applicability of the statute of

limitations to plaintiff Dotson.

The Clerk of this court is directed to send certified

copies of this Order to plaintiffs and to counsel for defend-

ants.

ENTER: This 2 day of November 1979.

/s/ Glen M. Williams

United States District Judge

37

MEMORANDUM OPINION

Plaintiffs have filed a “Motion for Reconsideration” ask-

ing this court to withdraw its dismissal Order entered in the

above-styled case on September 19, 1979. It is contended that

this court made several errors of law in that Order. Therefore,

this motion shall be treated under Fed. R. Civ. P. 60(b).

The plethora of allegations which gave rise to this cause

shall not be repeated in this opinion. Upon review of plaintiff's

motion, it is felt that only three issues need be addressed. Hence

this court finds no merit in the remainder of the plaintiffs’

charges.

The first issue revolves around “racial or class-based

discrimination” which is a necessary element under a 42 U.S.C.

§ 1985 suit. See Slavin v. Curry, 574 F. 2d 1256, 1262 (Sth Cir.

1978). In the disputed Order, plaintiffs’ § 1985 suit was dis-

missed for failure to allege this element.

In their motion, plaintiffs now allege that the “class-

based” element is satisfied because they are poor and this is

discriminatory because only “poor people...fall into the trap

of needing an orphanage.” This conclusion may very well be

true, but it is irrelevant for § 1985 concerns.

Plaintiffs have merely contended that poor people are

placed in orphanages, but have made no allegations that there

was an invidiously discriminatory animus toward poor people

behind defendants’ actions. It is this intent factor, not recog-

nition of a possible social truism, that provides the necessary

element for § 1985. See Griffen v. Breckenridge, 403 U.S. 88,

102 (1971.) In other words, § 1985 “provides a cause of action

where a conspiracy is directed against a person as a member of a

class; it does not provide a cause of action where the alleged

conspiracy is directed toward an individual personally.” Duff

v. Sherlock, 432 F. Supp. 423, 429 (E. D. Penn. 1977).

38

— ⁵ ee

1 It should be noted that the Griffen and Duff cases cited

above specifically dealt with § 1985(3). But, as Slavin, 574 F.

2d at 1262, points out, the racial or class-based discrimination

element Griffen required for § 1985(3) has been accepted for

§ 1985(2) suits in at least seven circuits. This court is persuaded

that those circuits have reached the correct result.

In accordance with the above, and without ruling

whether or not poor people could be considered a class in this

situation, this court's prior dismissal of plaintiffs’ § 1985 suit is

upheld.

It is next contended that the court erred in ruling that a

finding of state action is required in § 1985 suits. This point is

well taken and any ruling made on state action in the prior

Order is hereby vacated.

Griffen, supra, made it clear that a § 1985(3) suit does

not require a finding of state action, at least in racial discrimin-

ation cases, and the courts are in conflict as to whether §

1985(2) requires state action.2 See Bellamy v. Mason's Stores,

Inc., 508 F. 2d 504 (4th Cir. 1974); Stith v. Barnwell, 447 F.

Supp. 970 (M. D. N. C. 1978). But, for this case, a decision need

not be made because plaintiffs are already precluded from suit

for failure to allege a racial or class-based invidiously discrimin-

atory animus.

Similarly, the contention that the statute of limitations

for § 1985 was tolled as to the infant Dotson is accepted and

the prior Order is so altered. However, the dismissal Order is

not affected because the infant Dotson was already precluded

from suit for failure to allege a racial or class-based invidiously

discriminatory animus.

2 The conflict basically centers around whether the

constitutional base of § 1985(2) lay in the Thirteenth or Four-

teenth Amendment. The former does not require state action,

whereas the latter would require state action.

39

In accordance with the reasons stated above, plaintiffs’

motion for reconsideration is dismissed. However, the dismissal

Order in this case of September 19, 1979, is vacated as to its

findings on state action requirements under § 1985 and as to the

applicability of the statute of limitations to the infant plaintiff.

The Clerk of this court is directed to send certified copies

of this Memorandum Opinion to plaintiffs and to counsel for

defendants.

ENTER: This 2 day of November 1979.

/s/ Glen M. Williams

United States District Judge