Thomas v US, CA 87-1820

Section 5

Similarly, while plaintiffs suggest that the Times defendants actually did conspire wlith each other and with the federal defendants to violate plaintiffs' First Amendment rights, plaintiffs support that inference with facts no more specific than the allegation that

[i]n the period between February, 1983 up to and including the promulgation of the White House sidewalk regulation, on June 17, 1983, agents of the Park Service were in contact with agents of the Washinston Times. Various Times articles quoted false statements which were attributed to various Park Service agents, befendant Robbins admitted having used those articles and editorials as partial justification for the White House sidewalk regulations.

Complaint at ¶ 47; see also id. at ¶ 51 (claiming that one federal defendant's comment about White House sidewalk regulations reflects "adverse impacts" of the uncomplimentary portrayal of plaintiffs); id. at ¶ 58 (alleging without elaboration that "[i]n executing the alleged civil conspiracy," two of the nonfederal defendants "had a meeting of the minds").

Suggesting next a focus on the third element of Hobson's conspiracy test, plaintiffa claim that the Times defendants commited an act in furtherance of the alleged conspiracy by publishing editorials and the like calling for regulation of

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demonstrations in Lafayette Park, Plaintiffs' Opposition at 9. Fourth, and finally, plaintiffs attempt to establish that they suffered a deprivation of their First Amendment rights as a result of the alleged conspiracy. Complaint at ¶ 78. To satisfy this element of the Hobson test, plaintiffs rely heavily on a fragmentary transcript of a deposition of federal defendant Robbins purportedly taken in 1983 during discovery in another action. See id., Exhibit 16. The transcript reveals that Mr. Robbins, who was involved in the Department of the Interior's promulgation of the regulations at issue, admitted to having read editorials in The Washinston Times which were "critical of some of the activities that have taken place on the White House sidewalk. " Plaintiffs contend that the complaint, when read in conjunction with Exhibit 16, specifically supports the inference that one of the Department of the Interior defendants was unduly influenced by critical Times editorials, resulting in injury to plaintiffs' First Amendment - rights.

Plaintiffs' allegations establish little more than the probability that those promulgating Ule regulatians at issue read newspapers and consider the opinions expressed therein when calculating public response to a proposed rule. Thus, the constitutional analyais that precludes plaintiffs' common law libel claim against the Times defendants also

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compels rejectian of plaintiffs' claims, under 42 U.8.C. §§ 1983 and 1985(3), that the Times defendants conspired with the federal defendants to infringe plaintiffs' First Amendment rights. Plaintiffs contend that the Times published the editorials at issue In order to encoutage the federal defendants to promulgate regulations restricting plaintiffs' activities in Lafayette Park and in front of the White Houee. Plaintiffs infer a conspiracy among the defendants from the fact that the regulations were eventually promulgated by defendants serving in the Department of the Interior.

Once the Times editorials are recognized as an exercise of the newspaper's own First Amendment freedom, however, the "conspiracy" inferred by plaintiffs is reduced to nothing more than communication directed by the newspaper's editors towards federal officials responsible for policy in an area of particular concern to these editors. The possibility that that communication was effective, that is, that it reached its intended federal audience and ultimately influenced decisionmakers, fails to convert communication into conspiracy. It would turn the First Amendment on its head to discern a civil rights conspiracy from newspaper editorials designed to persuade public officials to take action of the sort at issue here.

Finally, if the Times' editorials exerted an inappropriate influcmce on any or all of the federal

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defendants, or if any illegal use was made of the statements or information contained in those editorials, only thase who misused the newspaper's communications, and not the newspaper itself, are potentially answerable for damages here. In conclusion, it cannot be said that the complaint sets forth 1) a conspiracy; 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; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in person or property or deprived of any right or privilege of a citizen of the United States, Hobson v. Wilson, 737 F.2d at 14. Accordingly, the complaint fails to state a claim under § 1983 and § 1985(3).

C.

Defendants argue that plaintiffs may not maintain an action under 42 U.S.C. § 1986 unless they state a sufficient cause of action under 42 U.S.C. § 1985. Times' Motion to Dismiss at 22. Plaintiffs do not traverse defendants' arguments on this issue; rather, plaintiffs reiterate their position that they have indeed stated a valid claim under § 1985. Plaintiffs' Reply at 13.

Section 1986 provides a right of action for damages against a person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this Title, are about to be committed, and having power to prevent

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or aid in preventing the commission of the same, neglects or refuses so to do if such wrongful act be committed ... 42 U.S.C. § 1986. The language of this provision establishes unambiguously that a colorable claim under § 1985 is a prerequisite to stating an adequate claim for neglect to prevent under § 1986. See Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir. 1983), cert. denied, 165 U.S. ll00, reh'q denied, 466 U.S. 954 (1984). Plaintiffs have failed to state a claim under § 1985. Accordingly, plaintiffs' claims against defendants under 42 U.S.C. § 1986 should be and are dismissed by the accompanying Order.

D.

Plaintiffs' common law claims against the Times defendants are barred here by the District of Columbia's one- year statute of limitations governing actions of this nature. D.C. Code § 12-301(4); see Steorts v. American Airlines, Inc., 647 F.2d 194, 196 (D.C. Cir. 1981), citing Erie Railroad Co. v. Tompkins, 304 U.6. 64 (1938). As defendants note, see Times' Motion to Dismiss at 23, the most recent tortious act alleged to have been taken by any defendant is the publication of a newspaper column by defendant Masty on July 5, 1985. The present action was filed on July 7, 1987, more than two years after that column appeared [6]

[6 Because praintiffs' claims for assault and battery arising out of tha alleged "raid" in Lafayette Park are time-barred, this memoranaum does not reach the serious questions that would be raised if The Washington Times were shown to have been a party to the attack or if the newspaper were proven to have engineered the event in order to generate a story damaging to plaintiffs.]

The complaint itself reflects some ambiguity with respect to the precise torts alleged against the Times defendants, which claims appear to cluster in "Counts II-X. See Complaint at ¶¶ 93-106. Nonetheless, as articulated in the complaint, and in the context of the facts alleged, plaintiffs' claims are best construed as charging the Times defendants with the common law torts of libel, defamation, intentional infliction of emotional distress, and assault and/or battery, the latter arising out of the purported "raid" on plaintiffs in Lafayette Park. See Times' Motion to Dismiss at 25-28 (analyzing each count against Times defendants in turn and showing that all essentially allege libel or assault). This characterization of the complaint is compelled notwithstanding plaintiffs' contention that they allege not "libel" but "the dissemination of malicious disinformation [which] has caused plaintiffs injury to the conduct of their lives' work and their religious practice," Plaintiffs' Opposition at 13-14.

D.C. Code Ann. § 12-301(4) (1981) specifically provides a one-year limitations period "for libel, slander, assault, [and] battery . . . ." The one-year period has also been imposed to govern actions for torts, like the intentional infliction of emotional distress, that are dependent on "the same personal interests infringed by the intentional torts"

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expressly subject to § 12-301(4). Hanoch Tel-Oren v. Libyan Arab Republic, 517 F. Sup. 542, 550 (D.D.C 1981), aff'd, 726 F.2d 774 (D.C.Cir. 1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). Here, plaintiffs base their claim for intentional infliction of emotional distress on their allegations that defendants "utilize[d] the Times as an instrument with which to plant seeds intended to poison the general public aginst plaintiffs.... They exposed plaintiffs to the constant threat of physical attack." Complaint at ¶ 93. Plaintiffs' claim for emotional distress is thus completely dependent upon and "intertwined" with their claims for libel, defamation, and assault and/or battery. As such, the emotional distress claim falls subject to the one-year limitations period specifically provided for those intentional torts. Burda v. National Association of Postal Supervisors, 592 F. Supp. 273, 281 (D.D.C. 1984), aff'd, 771 F.2d 1555 (D.C.Cir. 1985).

Moreover, the limitations period governing plaintiffs' claims of civil conspiracy is established by the statute oflimitations governing the underlying tort. Thus, the complaint's allegations of a conspiracy by the Times defendants to libel and assault plaintiffs are also subject to the one-year period set out in D.C.Code § 12-301(4).

As defendants note, the limitations period on tort actions such as these typically begns to run on the date of the alleged injury. Shehyn v. District of Columbia, 392 A.2d 1008, 1013 (D.C.App. 1978); see Times' Motion to Dismiss at 24. Libel actions, similarly, accrue on the date of publication. See Doe v. United States Department of Justice, 602 F.Supp. 871, 873 (D.D.C. 1983). The statute of limitations in a conspiracy action "runs separately from each overt act that is alleged to cause damage to the plantiff." Lawrence v. Acree, 665 F.2d 1319, 1324 (D.C.Cir. 1981). Accordingly, plaintiffs here could have maintained their conspiracy action only by bringing it within one year of the last overt act alleged. Since that act -- publication in the Times of a column by defendant Masty describing the alleged raid and criticizing plaintiffs, see Complaint at ¶ 61 -- took place on July 5, 1985, plaintiffs cannot bring their conspiracy action now.

Plaintiffs' failure to comply with the D.C. statute of limitations for the torts of intentional infliction of emotional distress, libel, defamation, and assault and battery compels dismissal of those claims against the Times defendants.

IV.

None of plaintiffs' claims for damages arising from alleged constitutional and common law torts can survive defendants' dispositive motion. Accordingly, an accompanying Order grants the Times defendants' motion to dismiss and dismisses the complaint as against those defendants.

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