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EHN v. PRICE

February 20, 1974

ERIC R. EHN, PLAINTIFF,
v.
ELLIOT PRICE, DEFENDANT.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the defendant's motion to dismiss the instant complaint.

The defendant, in support of his motion to dismiss, contends that the Court does not have jurisdiction over the subject matter of the instant complaint*fn* or in the alternative the complaint fails to state a claim upon which relief can be granted.

It is the opinion of this Court that both it lacks subject matter jurisdiction over the instant action and the plaintiff has failed to state a claim upon which relief can be granted.

I. THIS COURT LACKS JURISDICTION OVER THE SUBJECT MATTER OF THE
    COMPLAINT.

It is clear from the caption of this action that there is no diversity of citizenship between the parties since both plaintiff and defendant are residents of the State of Illinois. Absent the requisite diversity, jurisdiction may be conferred upon a federal court only if an essential element of plaintiff's claim alleged a federal question such as a deprivation of a right or immunity created by the Constitution or the laws of the United States. Campo v. Niemeyer, 182 F.2d 115 (7th Cir. 1950).

Federal jurisdiction could exist solely if the complaint is read to allege a deprivation by defendant of a constitutionally secured right, privilege or immunity by plaintiff cognizable under the Civil Rights Act, 42 U.S.C. § 1983, 1985; therefore, jurisdiction could exist by reason of the jurisdictional counterpart to the Civil Rights Act, 28 U.S.C. § 1343.

However, 42 U.S.C. § 1985 applies to conspiracies and plaintiff does not allege or even intimate any conspiracy involving defendant. Section 1983 provides a civil remedy for the deprivation of constitutional and civil rights but only where the deprivation is alleged to have occurred solely and exclusively under "color of state law." See Duzynski v. Nosal, 324 F.2d 924 (7th Cir. 1963); Campo v. Niemeyer, supra; Huey v. Barloga, 277 F. Supp. 864 (N.D. Ill. 1967). Section 1983 does not protect individuals against individual invasion of constitutional rights and the failure to allege that the conduct of the defendant which is the subject matter of the complaint was done under "color of state law" negates the existence of any jurisdictional basis under 28 U.S.C. § 1343. Campo v. Niemeyer, supra; Vance v. Robinson, 292 F. Supp. 786 (W.D.N.C. 1968); Pugliano v. Staziak, 231 F. Supp. 347 (W.D.Pa. 1964).

Plaintiff does not allege that defendant was a public official or that his conduct was taken under color of state law. Nor does the fact that defendant was appointed as counsel for plaintiff on appeal by a state court make him an officer of the state for purposes of 42 U.S.C. § 1983. Brown v. Joseph, 463 F.2d 1046 (3rd Cir. 1972); Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); Vance v. Robinson, supra; Reinke v. Richardson, 279 F. Supp. 155 (E.D. Wis. 1968).

Even if this Court were to assume that the plaintiff has been deprived of a constitutionally secured right, a liberal construction of the complaint fails to show the necessary requisites for subject matter jurisdiction in this Court.

II. PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN
    BE GRANTED.

Even if it could be assumed that the Court was vested with jurisdiction over the subject matter of this complaint, it is clear that plaintiff has failed to allege a claim upon which relief can be granted.

If plaintiff has any federally cognizable claim for relief, it must be pursuant to 42 U.S.C. ยง 1983 which provides a substantive civil remedy for the deprivation of constitutionally protected rights where the purported deprivation is alleged to have taken place exclusively under ...


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