547 F.2d 290 - Howard v. Lemmons — 547 F.2d 290

¶1Summary Calendar.*

¶2Preston L. Howard, pro se.

¶3Before BROWN, Chief Judge, and GOD-BOLD and GEE, Circuit Judges.

¶5PER CURIAM:

¶6Plaintiff, who is incarcerated in the federal penitentiary has brought this suit pursuant to 42 U.S.C.A. § 1983 and 42 U.S.C.A. § 1985(3) alleging that two private citizens filed false affidavits with the District Attorney stating that he had threatened their lives which resulted in an unrelated state charge. He asserted that this conduct violated certain of his constitutional rights but the trial court following the recommendation of a United States Magistrate dismissed the complaint upon the basis that the complaint stated no claim within the jurisdiction of the Court.1 The decision on § 1983 is clearly corjrect since there is no state action involved.2

¶7 *291As to the § 1985(3) claim, we hold that in light of our en banc opinion in McLellan v. Mississippi Power & Light Co., 5 Cir., 1976, 545 F.2d 919, reversing the panel decision, 5 Cir., 1976, 526 F.2d 870, no claim has been stated.

¶8AFFIRMED.

¶10. Private conduct which allegedly results in the improper arrest or wrongful initiation of judicial proceedings has been held not to state a claim under § 1983 in the absence of some nexus between official misconduct and the injury to the plaintiff. In Barnes v. Dorsey, 8 Cir., 1973, 480 F.2d 1057, 1061, a case which is factually similar to ours, the Court held that when the plaintiff alleged that a private person *291fabricated an account of a crime implicating him but made no allegation that the private person acted in concert with a public official the complaint failed to state a claim under § 1983. See also Dieu v. Norton, 7 Cir., 1969, 411 F.2d 761.

¶11Likewise, in the absence of state action § 1983 has been held not to provide a remedy for such common law torts as false arrest. See Street v. Surdyka, 4 Cir., 1974, 492 F.2d 368. The Eighth Circuit has held that when private persons improperly initiated a contempt proceeding against the plaintiff no cause of action arose under § 1983 because no action was taken under color of state law. See Glasspoole v. Albertson, 8 Cir., 1974, 491 F.2d 1090.

¶12This Circuit has also required connection between the action of private persons and public officials to provide a sufficient nexus for a finding of state action. See Fulton v. Emerson Electric Company, 5 Cir., 1969, 420 F.2d 527, 530. See also United States v. Price, 1966, 383 U.S. 787, 793, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267, 272.

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