Unpublished Disposition, 921 F.2d 282 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 282 (9th Cir. 1990)

James Thomas WESTBROOK, Plaintiff-Appellant,v.SONG BOR JEN, et al., Defendants-Appellees.

No. 89-56061.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 6, 1990.* Decided Dec. 5, 1990.

Before SCHROEDER, WIGGINS and LEAVY, Circuit Judges.


MEMORANDUM** 

James Thomas Westbrook filed this action in the United States District Court for the Central District of California, seeking compensatory and punitive damages against 17 named defendants under 42 U.S.C. §§ 1983 and 1985 and various statutes of the State of California. He sought leave to proceed in forma pauperis, and the district court denied his application for want of federal jurisdiction. He then sought to appeal this denial, and moved to proceed in forma pauperis in the appeal. This motion was also denied. Finally, he paid the filing fee to pursue this appeal. The denial of leave to proceed in forma pauperis is an appealable collateral order; therefore, this court has jurisdiction over this appeal. Roberts v. United States District Court, 399 U.S. 844 (1950).

Westbrook's complaint in the district court alleged a conspiracy to deprive him of his interest in certain real property. He claimed that his mother, her attorney, his attorney and several real estate agents deliberately ensured that he did not receive notice of proceedings that his mother filed in the Los Angeles County Superior Court to release a mechanic's lien that he held on the property. Because of Westbrook's inaction, that court ordered the requested release. Westbrook then brought suit, claiming that the appellees had made use of state mechanisms to deprive him of his property without due process of law, in violation of 42 U.S.C. §§ 1983 and 1985.

The conduct of private individuals is actionable under section 1983 only if they acted in concert with another party who was acting under color of state law. Briley v. State of California, 564 F.2d 849, 858 (9th Cir. 1977). Thus, Westbrook has stated a claim under section 1983 only if the conspiracy he alleges included a state official who acted under color of law.

Although Westbrook suggests in the end of his complaint that this action is somehow related to another action he filed, in which he alleged police involvement in the facilitation and subsequent cover-up of the murder of a Mr. Milton Bratton, the complaint in this action sets forth no facts that support this suggestion. Accepting the allegations in Westbrook's complaint as true, all of those who acted in the conspiracy he describes were private individuals not acting under color of state law. That they took their actions through the court system does not, without more, bring their conduct within the purview of section 1983. See Briley, 564 F.2d at 855.

The prohibitions of section 1985, however, may extend to purely private action. Griffin v. Breckenridge, 403 U.S. 88, 101 (1971). To state a claim under section 1985, a plaintiff must allege "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." 403 U.S. at 102. Westbrook has not alleged a deprivation motivated by such a discriminatory animus; therefore, he has not stated a claim under section 1985.

The remaining issues in the complaint involve claims of fraud, breach of fiduciary duty and abuse of process, which are actionable under state law. Since the complaint does not state a claim under section 1983 or section 1985, and since all parties reside in California and thus are not diverse in citizenship, the district court correctly denied leave to proceed in forma pauperis.

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3