ON TIMOTHY'S MOTION TO DISMISS
This civil rights action arises out of a violent
conspiratorial attack that a group of white males allegedly
perpetrated against plaintiffs. Defendant, Michael Timothy
("Timothy"), one of the alleged attackers, has moved to
dismiss Counts I, II and IV of plaintiffs' complaint.
Timothy's motion to dismiss is granted in part and denied in
On June 25, 1983, plaintiffs Kreigh Hawk ("Hawk") and Kevin
Coleman ("Coleman"), both of whom are black males, and a third
individual, Michael Hurley ("Hurley"), who has not joined in
this action, left a Chicago restaurant and walked to their
car, only to find that the tires had been slashed. A group of
approximately twelve white males, who were standing nearby,
began to yell racial epithets and threats of physical violence
at plaintiffs and Hurley. Coleman returned to the restaurant
to telephone the police. Hawk and Hurley remained outside
where they were attacked and beaten by the group of white
males. Hawk suffered a broken jaw when the attackers dragged
him into the street and slammed his head onto the pavement.
The attackers threatened to kill Hawk and Hurley and yelled
racial insults throughout the attack. According to the
complaint, Timothy was a participant in the attack.
After the attack had ceased, two Chicago police officers
("Police Defendants") arrived and interviewed Hawk and Hurley.
Based on descriptions given by Hawk and Hurley, the Police
Defendants stated that they were familiar with the
perpetrators of the attack. The Police Defendants then
described two other individuals and asked Hawk if he
recognized them. Hawk stated the individuals described by the
Police Defendants had participated in the attack.
While the Police Defendants were interviewing Hawk and
Hurley, three of the attackers were standing on a nearby
sidewalk. Hawk and Hurley identified the three men as part of
the group that had engaged in the attack. The Police
Defendants then approached the three men. One of the Police
Defendants, leaning close to two of the men, held a
conversation with them. Hawk was unable to hear what was said
during that conversation. Shortly after the conversation
ceased, however, two of the men fled. The Police Defendants
did not order the fleeing men to halt. Further, the Police
Defendants only pursued the fleeing men after they ran into an
alley. The Police Defendants then gave chase, running into the
alley. The Police Defendants returned soon thereafter and
explained that they had lost the two fleeing men.
According to plaintiffs, the Police Defendants did not
question any potential witnesses at the scene of the attack.
Further, the Police Defendants knew at least several, if not
all, of the attackers prior to the attack. They knew that the
attackers all belonged to a gang or club that was motivated by
racial animus. They knew also that the perpetrators of the
attack on Hawk and Hurley had engaged in similar attacks in
Plaintiffs have filed a four count complaint, only three
counts of which name Timothy as a defendant. As stated
previously, Timothy has moved to dismiss those three counts.
The court will discuss each of Timothy's arguments in turn.
In Count I of their complaint, plaintiffs allege that their
attackers, including Timothy, violated, and conspired to
violate, plaintiffs' civil rights under the Thirteenth
Amendment and 42 U.S.C. § 1981. Timothy argues first that there
is no separate cause of action for a breach of the Thirteenth
Amendment. A claim under the Thirteenth Amendment, Timothy
argues, may only be brought under one of the implementing
statutes such as the Civil Rights Act of 1866. Timothy is
correct. See, e.g., Clark v. Universal Builders, Inc.,
409 F. Supp. 1274, 1279 (N.D.Ill. 1976). The court cannot determine
from its reading of the complaint whether plaintiffs intended
to assert a separate cause of action under the Thirteenth
Amendment. To the extent that plaintiffs have attempted to
assert such a claim, however, that claim will be dismissed.
As to plaintiffs' claim that Timothy violated
42 U.S.C. § 1981,[fn1b] Timothy argues that to state a claim under that
statute, plaintiffs must allege state action. Timothy contends
that plaintiffs allegation that he worked for the City of
Chicago Fire Department is conclusory and, without more,
insufficient to allege state action. Failing to allege state
action, Timothy concludes, Count I of plaintiffs' complaint
must be dismissed.
Timothy's argument rests on the assertion that Section 1981
requires state action. In support of the proposition, no court
in the Seventh Circuit having addressed the issue, Timothy
relies on Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977) cert.
denied, 438 U.S. 904, 98 S.Ct. 3122, 57 L.Ed.2d 1147
(1978).[fn2b] In Mahone, plaintiffs, two black males, brought
suit under Section 1981, claiming that the City of Pittsburgh
was liable on a respondeat superior basis for the misconduct of
two of its police officers. The lower court dismissed
plaintiffs' Section 1981 claim, finding that the conduct
alleged in the complaint did not fall within the ambit of that
The Third Circuit Court of Appeals reversed, finding that
the conduct complained of was within the scope of activities
Section 1981 was designed to prevent. In reaching that
conclusion, the Third Circuit also discussed whether state
action is a necessary element of a Section 1981 cause of
action. The court divided Section 1981 into three clauses: the
right "to make and enforce contracts" clause ("contracting
clause"); the right "to full and equal benefit of all laws and
proceedings" clause ("equal benefit clause"); and the right to
be free from unequal "punishment, pains [and] penalties"
clause ("like punishment clause"). The Court noted that the
Supreme Court had construed only the contracting clause. 564
F.2d at 1029. According to the Third Circuit, however, a
fundamental distinction exists between the contracting clause
and the other two clauses. Id.
With regard to the contracting clause, the court stated that
the right to make and enforce contracts necessarily involves
"relations between private individuals." Id. After all, the
court noted, a black person usually contracts with another
individual and not the state. Consequently, the contracting
clause can be infringed by private individuals and does not
require state action. Id.
The Court reached a different conclusion with respect to the
equal benefit and like punishment clauses. The Court stated:
The words "full and equal benefit of all
laws and proceedings for the security of persons
and property" (emphasis supplied), on the other
hand, suggest a concern with relations between the
individual and the state, not between two
individuals. The state, not the individual, is the
sole source of law, and it is only the state acting
through its agents, not the private individual,
which is capable of denying to blacks the full and
equal benefit of the law. Thus, while private
discrimination may be implicated by the contract
clause of section 1981, the concept of state action
is implicit in the equal benefit clause. The like
punishment clause may be read
in the same way. Only the state imposes or
requires "taxes, licenses and exactions" and the
maxim noscitur a socus suggests that the
"punishment, pains [and] penalties" to which the
clause refers are those imposed by the state.
564 F.2d at 1029-30.
This court cannot agree with Timothy that the
Mahone decision is determinative here. The Mahone court's
discussion of state action is confined within, and merely a
part of, a larger issue before that court; whether Section 1981
should be construed broadly or narrowly. Further, state action
was clearly alleged in that case. As the Mahone court stated,
"in the instant case . . . the complaint does allege state
action. We need decide no more in this case." 564 F.2d at 1030.
In other words, the Mahone court's discussion of state action
was entirely unnecessary to the court's conclusion.
In addition, the focus of the Mahone court's analysis was
unduly narrow in both what it reviewed in making its decision
and in its interpretation of the statute. During its discussion
of the state action requirement, the Mahone court confined its
analysis to the language of the statute without reference to
either the legislative history of the statute or Supreme Court
precedent. The Mahone court's reading of the equal benefit and
like punishment clauses is, in this court's opinion, entirely
too restrictive. As the Mahone court recognized, Section
1981 was intended to eliminate all racial discrimination and
consequently should be construed broadly. This court declines
to follow the Mahone court's analysis.
Nor can this court agree with the analysis proposed by
plaintiffs. Plaintiffs argue that Section 1981 is based on the
Thirteenth Amendment. The Thirteenth Amendment does not
require state action and consequently neither should Section
1981. Plaintiffs' proposed analysis, however, suffers from a
fundamental flaw. Section 1981 is based on both the Thirteenth
and Fourteenth Amendments. See, e.g., General Building
Contractors Ass'n. v. Pennsylvania, 458 U.S. 375, 390 n. 17,
102 S.Ct. 3141, 3149 n. 17, 73 L.Ed.2d 835 (1982); Baker v. F &
F Investment Co., 489 F.2d 829, 833 (7th Cir. 1973). To state a
claim under the Fourteenth Amendment, unlike the Thirteenth
Amendment, a plaintiff must allege state involvement of some
kind. Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972).
Because plaintiff's argument rests on a faulty foundation, the
court will not follow that argument here.
Having rejected the approach advanced by the parties to this
action, this court will strike out on its own. This court will
review the language of the statute and its legislative
history. This court concludes that Section 1981 prohibits
private as well as official acts of discrimination.
This court begins where Mahone both began and ended its'
analysis, with the language of the statute. As the Mahone court
recognized, "[i]f the language be clear it is conclusive. There
can be no construction where there is nothing to construe." 564
F.2d at 1028 (quoting United States v. Hartwell, 73 U.S. (6
Wall) 385, 396, 18 L.Ed. 830 (1867)). Yet the Mahone court then
found the "meaning" of Section 1981, not in the plain language
of the statute, but in what it viewed as the obvious
implications of the language used. This court is not at all
convinced that the implications found by the Mahone court are
the only ones that arise from the statutory language. Nothing
in the wording of the statute compels the conclusion that state
action is a prerequisite to Section 1981 liability. See
generally Griffin v. Breckenridge, 403 U.S. 88, 97, 91 S.Ct.
1790, 1795, 29 L.Ed.2d 338 (1971). Indeed, when Congress has
intended to limit the reach of a civil rights statute to
official misconduct, it has done so expressly. See Act of April
9, 1866, ch. 31, § 2, 14 Stat. 27 (current version at 18 U.S.C. § 242
(1948)). See also 42 U.S.C. § 1983 (1979). The absence of
any words expressly limiting Section 1981 to official acts of
discrimination indicates that Congress did not intend to
restrict the operation of that Section to such conduct.
The operative language of what is now Section 1981
originated in § 1 of the Civil Rights Act of 1866, Act of April
9, 1866, ch. 31, § 1, 14 Stat. 27 (reenacted as Act of May 31,
1870, ch. 114, § 16, 16 Stat. 140).[fn3b] In enacting the Civil
Rights Act of 1866, Congress was motivated by a desire to
eradicate all racial discrimination. See Jones v. Mayer Co.,
392 U.S. 409, 436, 88 S.Ct. 2186, 2201, 20 L.Ed.2d 1189 (1968).
The impetus behind the Act of 1866 was Congressional concern
over, not only official acts of racial discrimination, but
purely private injustices as well. During the Congressional
debates, assaults on blacks by private citizens were referred
to on several occasions. See Cong. Globe, 39th Cong., 1st
Sess., 339-40, 1835. See generally Jones v. Mayer Co.,
392 U.S. 409, 427-29, 88 S.Ct. 2186, 2197, 20 L.Ed.2d 1189 (1968). These
private attacks were clearly viewed as the type of evil the Act
of 1866 was designed to prevent. This court can only conclude
that Congress intended that Section 1981, in its entirety,
extend to private acts of discrimination.
Further support for this court's conclusion is found by
comparing Sections 1 and 2 of the Act of 1866. Section 2 of
the Act provided fines and prison terms for any person acting
under color of law to deprive others of rights secured by
Section 1.[fn4b] In other words, only official misconduct was
a criminal offense under Section 2. Section 2, exempts private
acts of discrimination from the criminal sanctions it imposes.
As the Supreme Court has stated, "[t]here would, of course,
have been no private violations to exempt if the only `right'
granted by § 1 had been a right to be free of discrimination by
public officials." Jones v. Mayer Co., 392 U.S. 409, 425-26, 88
S.Ct. 2186, 2195, 20 L.Ed.2d 1189 (1968).
Section 1 of the Civil Rights Act of 1866 also contained the
operative language of what is now 42 U.S.C. § 1982.[fn5a]
Sections 1981 and 1982 became two separate provisions in the
1870 reenactment. See Hurd v. Hodge, 334 U.S. 24, 30-31 n. 7,
68 S.Ct. 847, 849-851 n. 7, 92 L.Ed. 1187 (1948). The Supreme
Court and the Seventh Circuit have both stated that because of
their common origin, Sections 1981 and 1982 are not to be
construed differently. Tillman v. Wheaton-Haven Recreation
Ass'n., 410 U.S. 431, 439-40, 93 S.Ct. 1090, 1094, 35 L.Ed.2d
403 (1973); Baker v. F & F Investment Co., 489 F.2d 829, 833
(7th Cir. 1973). The prohibitions of Section 1982 are not
confined to official acts of discrimination. Jones v. Mayer
Co., 392 U.S. 409, 436, 88 S.Ct. 2186, 2201, 20 L.Ed.2d 1189
Section 1981, then, should also reach private acts of
Finally, 42 U.S. § 1985(3)[fn6a] contains language similar to
that of the equal benefit clause of Section 1981. In Griffin v.
Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338
(1971), the Supreme Court found that the equal protection
provision of Section 1985(3) applies to private as well as
official actions. Id., at 96-102, 91 S.Ct. at 1795-1798. The
A century of Fourteenth Amendment adjudication
has . . . made it understandably difficult to
conceive of what might constitute a deprivation
of the equal protection of the laws by private
persons. Yet there is nothing inherent in the
phrase that requires the action working the
deprivation to come from the state. Indeed, the
failure to mention any such requisite can be
viewed as an important indication of
Congressional intent to speak in § 1985(3) of all
deprivations of "equal protection of the laws" and
"equal privileges and immunities under the laws",
whatever their source.
Id. at 97, 91 S.Ct. at 1795 (citations omitted). The Griffin
Court's holding, as well as its reasoning, lend additional
support to this court's conclusion that Section 1981 prohibits
private acts of discrimination. Consequently, this court finds
that plaintiffs have stated a claim for relief under that
In Count II of their complaint, plaintiffs allege that their
attackers, including the movant Timothy, conspired in
violation of Section 1985(3). Timothy argues that plaintiffs
have failed to state a claim under Section 1985(3) in that
plaintiffs have failed to set forth material facts from which
this court could infer a conspiracy. In addition Timothy
contends that plaintiffs have failed to allege an overt act in
furtherance of the alleged conspiracy.
Plaintiffs allege that a group of white males yelled racial
slurs at Hawk and Hurley and then set upon them, giving Hawk
and Hurley a severe beating. This court has little difficulty
finding that these facts support an inference that Timothy and
other attackers engaged in a conspiracy. Further, this court
finds that the physical beating given Hawk and Hurley is an
overt act in furtherance of the alleged conspiracy. See
Magayanes v. City of Chicago, 496 F. Supp. 812, 816 (N.D.Ill.
1980). Timothy's motion to dismiss plaintiffs Section 1985(3)
claim must be denied.
Finally, Timothy moves that plaintiffs' Section 1983*fn7
claim be dismissed because
plaintiffs do not aver that Timothy was acting under color of
state law. Timothy is correct in noting that plaintiffs have
failed to allege that Timothy was acting under color of state
law. However, a private person may be liable under Section
1983 when he engages in a conspiracy with individuals who are
acting under color of state law, such as public officials.
See, e.g., Tarkowski v. Robert Bartlett Realty Co.,
644 F.2d 1204, 1206 (7th Cir. 1980). Here, plaintiffs allege, in Count
IV of their complaint, that their attackers conspired with the
Police Defendants. This court has already ruled that plaintiffs
allegations of a conspiracy between the attackers and the
Police Defendants state a claim for conspiracy under 42 U.S.C. § 1985.
See Hawk v. Perillo, 642 F. Supp. 380, 385-86 (N.D.Ill.
1985). This court sees no reason to depart from its prior
holding. Timothy's motion to dismiss plaintiffs' claim under
Section 1983 is denied.
For the foregoing reasons, it is hereby ordered that
Timothy's motion to dismiss will be granted insofar as
plaintiffs' have attempted to allege an independent cause of
action under the Thirteenth Amendment. In all other respects,
Timothy's motion to dismiss is denied.