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;
the party so injured or
deprived may have an action for the
recovery of damages, occasioned by
such injury or deprivation, against
any one or more of the conspirators.

The requirements for a cause of action under this
section are a conspiracy to violate the plaintiff's
constitutional rights and racial or some other type of
class-based discrimination. 213 Griffin v. Breckenridge,
403 U.S. 88, 91 S.Ct. 1790, 29 L. Ed. 2d 338 (1971);
Jennings v. Shuman, 567 F.2d 1213, 1220-21 (3d Cir.
1977); Waits v. McGowan, 516 F.2d 203 (3d Cir. 1975).
The Griffin Court explained this requirement as
follows:

others

That the statute was meant to reach
private action does not, however,
mean that it was intended to apply
to all tortious, conspiratorial
interferences with the rights of
The constitutional
shoals that would lie in the path of
interpreting § 1985 (3) as a general
federal tort law can be avoided by
giving full effect to the congressional
purpose by requiring as an element
of the cause of action, the kind of
invidiously discriminatory motivation
stressed by the sponsors of the limit-
ing amendment of equal protection, or
equal privileges and immunities, means
that there must be some racial, or
perhaps otherwise class-based, invidiously
discriminatory animus behind the con-
spirators' action. The conspiracy,
in other words, must aim

213. See also Note, McLellan v. Mississippi Power and Light Co., 9 Rutgers-Camden L. Rev. 187 (1977); Comment, Private Conspiracies to Violate Civil Rights: McLellan v. Mississippi Power and Light Co., 90 Harv. L. Rev. 1721 (1977); Note, The Scope of Section 1985 (3) since Griffin v. Breckenridge, 45 Geo. Wash. L. Rev. 239 (1977).

at a deprivation of the equal enjoyment of rights secured by the law to all. 214

403 U.S. at 101, 91 S.Ct. at 1798, 29 L. Ed. 2d at 348.

Jones v. United States, 536 F.2d 269, 271 (8th Cir. 1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 735, 50 L.Ed.2d 750 approved the district court's application of this requirement to an action under section 1985(2) 215 and further approved the conclusion of the district court in Jones v. United States, 401 F.Supp. 168 (E. D. Ark. 1975), that the requirement of racial or class-based discrimination applies equally to all clauses of section 1985.

In Blevins v. Ford, 575 F.2d 1336 (9th Cir. 1978), an action by a non-lawyer against three lawyers, the complaint did not adequately charge class-based animus and was properly dismissed by the district court. The plaintiffs in Askew v. Bloemker, 548 F.2d 673, 678 (7th Cir. 1976) failed to show a class "Based on race, ethnic origin, sex, religion, [or] political loyalty"' that could support a section 1985(3) claim.

The requirement of a conspiracy by two or more persons cannot be satisfied by showing acts of two or more persons who are members of a single corporate entity, Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66 (2d Cir. 1976), cert. denied, 425 U.S. 974, 96 S.Ct. 2173, 48 L. Ed. 2d 798 (1977).

214. The Third Circuit most recently interpreted section 1985 (3) in Novotony v. Great American Federal Savings and Loan, 584 F.2d 1235 (3d Cir. 1978), cert. granted, 47 U.S.L.W. 3463 (Jan. 9, 1979). In that case the court held that sex discrimination is within the category of invidious class-based animus condemned by section 1985; an individual need not be a member of that class to bring suit; and concerted action among corporate officers and directors to deprive women of equal employment opportunities can constitute a conspiracy in violation of section 1985 (3).

215. See also Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976), which found that a "class-based, invidiously discriminatory animus" is required for a cause of action under the second part of section 1985 (2) but is not required for a cause of action under the first part of that section.

McNally v. Pulitzer Publishing Co., 532 F.2d 69, 74 (8th Cir. 1976), cert. denied, 429 U.S. 855, 96 S.Ct. 2173, 50 L. Ed. 2d 131 (1976) stated: "[I]t must be determined in each Section 1985(3) action whether a constitutional source of congressional power to reach the private conspiracy alleged in the complaint exists," citing Griffin, 403 U.S. at 104, 91 S.Ct. at 1799, 29 L. Ed. 2d at 349.

State action is not required in actions under section 1985 as it is required in actions under section 1983. Griffin, 403 U.S. at 99, 91 S. Ct. at 1797, 29 L.Ed.2d at 346.

The requirements for a claim under section 1985 also apply to a claim under section 1986. Taylor v. Nichols, 558 F.2d 561 (10th Cir. 1977).

SECTION X: THE REQUIREMENTS FOR A CAUSE OF ACTION
UNDER 28 U.S.C. SECTION 1331 (SUPP. 1978)

When a plaintiff asserts a claim alleging violation of his constitutional rights for which relief is not available under section 1983, it is important to determine whether jurisdiction is available under the general federal question statute, 28 U.S.C. section 1331. Unlike claims under 28 U.S.C. section 1343(3), where no required amount in controversy need be proved, Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 30 L. Ed. 2d 424 (1972), a claim that is predicated on 28 U.S.C. section 1331 requires proof that the amount in controversy exceeds $10,000 with the exception of claims against the United States and federal officials. Prior to Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L. Ed. 2d 611 (1978), which opened the door to liability of municipalities under section 1983, actions were often brought under section 1331 because prior to Monell municipalities were immune to liability under section 1983 as a result of the Court's decision in Monroe v. Pape, 365 U.S. 167 (1961).

28 U.S.C. section 1331 provides:

(a) The district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, and arises under the Constitution, laws, or treaties of the United States except that no such sum or value shall be required in any such action brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity.

In cases in which the plaintiff alleges a violation of his federal constitutional rights but fails to satisfy the requirements for a cause of action under section

1983 or 1985 (3), consideration should be given to whether he has stated a claim under this section. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) held that a complaint alleging that federal agents violated plaintiff's rights under the Fourth Amendment to the United States Constitution in searching his home and arresting him without a warrant and without probable cause stated a cause of action over which the court had jurisdiction under 28 U.S.C. § 1331. Two important questions raised by Bivens have not yet been answered by the Supreme Court: whether actions can be brought under section 1331 for violations of constitutional provisions other than the Fourth Amendment, 216 and whether the limitations of section 1983 are applicable to actions under section 1331.217

218

The District of Columbia Circuit and the Third Circuit219 have upheld Bivens claims based upon violations of the First Amendment.

220

The Third

221

and Fourth Circuits have' upheld Bivens claims for violation of the Fifth Amendment.

216. In the recent case Butz v. Economou,

U.S.

n. 8, 98 S.Ct. 2894, 2900 n. 8, 57 L.Ed.2d 895, 903 n. 8 (1978), the Court stated, "The Court's opinion in Bivens concerned only a Fourth Amendment claim and therefore did not discuss what other personal interests were similarly protected by provisions of the Constitution. We do not consider that issue here."

217. Section 1983 requires that the defendant be a person and that the acts or conduct causing the deprivation must be under color of state or local law.

218. Dellums v. Powell, 566 F.2d 167, 194-95 (D.C. Cir. 1977) (Dellums I).

219. Paton v. LaPrade, 524 F.2d 862, 869-70 (3d Cir. 1975).

220. United States ex rel. Moore v. Koelzer, 457 F.2d 892, 894 (3d Cir. 1972).

221. State Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1156 (4th Cir. 1974).