Full opinion text
MEMORANDUM MERHIGE, District Judge. The complaint filed herein arises out of a violent, conspiratorial attack that members of the Ku Klux Klan (Klan) and the American Nazi Party allegedly perpetrated against participants in an anti-Klan rally in Greensboro, North Carolina on November 3, 1979. The complaint charges various local, state, and federal government officials and agencies, as well as alleged members of the Klan and the Nazi Party, with complicity in the attack and in an ensuing cover-up of the alleged official involvement in the attack. There are sixteen plaintiffs and 87 named defendants. In its fourteen counts the complaint purports to state causes of action under federal civil rights statutes 42 U.S.C. § 1981, § 1983, § 1985(3) and § 1986, under the laws of North Carolina, and directly under the Constitution. See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Jurisdiction over the federal claims is premised on 28 U.S.C. § 1331 and § 1343. Plaintiffs additionally pray the Court to exercise jurisdiction over the state law claims under the doctrine of pendent jurisdiction. There are a number of outstanding motions now before the Court. The plaintiffs have filed two motions to amend. The first seeks to add an additional plaintiff; the second seeks to add additional material to certain parts of the complaint. The government officials and agencies named in the complaint have filed motions pursuant to Fed.R. Civ.P. 12(b)(1), (2), (5) and (6), seeking dismissal of some or all of the claims against them. Finally, a number of the defendants who are described in the complaint as Klan or Nazi Party members have filed pro se motions for appointment of counsel. The parties having voluminously briefed the relevant issues and the Court having entertained argument thereon, these matters are now ripe for disposition. MOTIONS TO AMEND Plaintiffs have moved to add an additional plaintiff, Claire Butler, to the complaint. Her claims, however, are undoubtedly barred by the appropriate statute of limitations. An amendment may be denied if it would prove futile, as in this instance. Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The motion will be denied. Plaintiffs have additionally moved to amend the text of the complaint in a number of respects. They seek to “specify further” that one of the defendants, District Attorney Schlosser, is charged with participation in a conspiracy in advance of the attack as well as in the cover-up. They seek also to “specify further” their claims for injunctive relief. In the Court’s opinion, those amendments go substantially beyond the second amended complaint filed almost two years ago. No just reason for the delay has been given, and the proposed amendments would substantially prejudice the defendants. See United States v. Hougham, 364 U.S. 310, 81 S.Ct. 13, 5 L.Ed.2d 8 (1960); Fed.R.Civ.P. 15(a). Additionally, the proffered further specifications are insufficient to remedy the lack of specificity in the present complaint as discussed infra. The remaining proposed changes are mooted by virtue of the Court’s resolutions of the pending motions to dismiss. The motion to amend will be denied. MOTIONS TO DISMISS The government officials and agencies charged (“the moving defendants”) have moved for dismissal on numerous grounds, which can be briefly summarized here. The agencies and the officials in their official capacities seek dismissal under Fed.R. Civ.P. 12(b)(1), contending that absolute sovereign immunity deprives the Court of jurisdiction over the action as against them. Defendant Schlosser, a District Attorney for the State of North Carolina, seeks dismissal on the ground of prosecutorial immunity. The federal employees sued in their individual capacities move for dismissal under Fed.R.Civ.P. 12(b)(2) and (5) for lack of personal jurisdiction and insufficiency of service of process. All the moving defendants seek to have the entire complaint dismissed for failure to comply with the Fed.R.Civ.P. 8(a) requirement of a “short and plain” statement of the claim and for failure to comply with the Magistrate’s order of February 26, 1982, which directed the plaintiffs to comply with Rule 8(a). Barring that, they seek dismissal under Fed.R.Civ.P. 12(b)(6) of the § 1985(3) conspiracy claim, on the ground that even if the allegations are taken to be true, they do not satisfy the requisite “discriminatory animus” element of a § 1985(3) cause of action. The federal officials move under Rule 12(b)(6) for dismissal of the § 1985(3) and § 1986 counts against them on the grounds that claims pursuant to those provisions are not actionable against federal officials. The defendants charged with complicity in the alleged cover-up move under Rule 12(b)(6) for dismissal of the § 1983, § 1985(3), and Bivens actions against them on the ground that even if there were a cover-up, the complaint does .not state any actionable injury resulting from it. The local and federal law enforcement officials move under Rule 12(b)(6) to dismiss the § 1983, Bivens, § 1986 counts against them insofar as those counts charge them with failing to provide the plaintiffs police protection, to which, they argue, the plaintiffs had no actionable right. All of the moving defendants seek dismissal of the § 1981 count, under Rule 12(b)(6) for failure to state a claim under that statute. A number of the officials charged contend that they are included in the complaint solely because they occupied supervisory positions over their defendants; because, they argue, the doctrine of respondeat superior is not applicable to the causes of action asserted, they are entitled to dismissal under Rule 12(b)(6). The City of Greensboro seeks dismissal of the claims against it for failure to comply with a city ordinance requiring prompt notice to the city of claims against it. All of the defendants urge the Court to decline to exercise pendent jurisdiction over the state law claims. Before the Court proceeds to address these contentions, some further description of the parties to the case and of the allegations in the complaint is in order, as it may prove to be a useful preface to the discussions that follow". It should be noted that in this description as well as in the discussions that follow, excepting only the discussions of the service of process and jurisdictional contentions, the Court will accept the allegations of the complaint as true, as the law requires it to do. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Nothing herein should be taken as indicating any view on the validity of the allegations of the complaint. Any comments that might be interpreted as such should be understood rather as simply the consequence of the Court’s adherence to the legally prescribed standard of review at this stage in the pleadings. The complaint names 87 defendants. They can be grouped in various ways, but probably the most convenient groupings for the sake of these motions are those used in the complaint. In adopting those groupings for convenience reasons, the Court stresses that it does not pass any judgment on the accuracy of the labels used. In particular, in referring to certain defendants as “the Klan defendants” or “the Nazi defendants,” the Court means only to signify those defendants who are alleged to be Klan or Nazi Party members. The defendants are summarized in the following chart. Private Defendants Klan Defendants: Nazi Defendants: Informant Defendants: Local Defendants Greensboro Police Defendants: Greensboro City Officials: City of Greensboro: Greensboro Police Department: State Defendants State Bureau of Investigation (SBI) Defendants: Hunt (Governor) Schlosser (District Attorney) Mitchell (Director of State Department of Crime Control and Public Safety) State of North Carolina SBI Department of Crime Control and Public Safety Federal Defendants Federal Bureau of Investigation (FBI) Defendants: Federal Bureau of Alcohol, Tobacco and Firearms (BATF) Defendants: Community Relations Service (CRS) Defendants: Attorneys General: FBI BATF CRS (an agency at the Department of Justice) Department of Justice 13 Named Individuals 7 Named Individuals Dawson, Butkovich 34 Named Officers, including Swing (Chief of Police) Melvin (Mayor), Osborne (City Manager), Lovelace (Director of Public Safety) ) ) “Agency Defendants” ) Starling (Director), Ray (Agent) ) ) “Agency Defendants” ) ) ) ) Webster (Director), Pence, Pelczar, Monahan, Moses, and Brereton (Agents) Dickerson (Director), Westra, Conroy (Agents) Pompa (Director); Ensley (employee) Civiletti, Bell, W. F. Smith ) ) ) ) ) “Agency Defendants” ) ) ) The complaint’s description of the defendants fleshes out the summary contained in this chart in a number of respects worth noting here. The “Greensboro police defendants” are mostly described as officers in the police divisions assigned to cover the Nov. 3 rally. The remainder are detectives or supervisory officers, some of whom are charged for their role in supervising the divisions assigned to cover the Nov. 3 rally, and some of whom are charged in connection with their roles in investigating the attack. The “informant defendants” are described as persons who acted as “agent-provocateurs” within the Klan and the Nazi party. Dawson is described as a Klan member and as working for the Greensboro police and the FBI as an informant. Butkovich is described as an agent of the BATF who infiltrated the Nazi party and became an “agent-provocateur.” District Attorney Schlosser is named as the person who unsuccessfully prosecuted certain of the Klan/Nazi defendants on state law criminal charges. All of the government officials named are sued both in their individual and official capacities. The Court notes that while the complaint lists defendant Butkovich as an “informant defendant” rather than with the other federal defendants, the defendants’ motions reveal that he is represented along with the other federal officials by counsel for the Department of Justice. Consequently, when the Court makes reference infra to “the federal defendants,” such reference should be understood to include Butkovich. The substance of the complaint begins with the statement that the plaintiffs, for a substantial period prior to and including November 3, 1979, had been “communists, labor organizers, and/or advocates of equal rights for black people,” and were known to the defendants as such. The defendants harbored a pre-existing hostility against those three groups of people, and the complaint sets out background information purporting to evidence that pre-existing hostility. The complaint recounts events that led up to the November 3 attack. In essence, it states that a communist organization, of which several plaintiffs were members, scheduled and publicly announced an anti-Klan/Nazi protest march to take place on November 3, 1979. Upon learning of the scheduled rally, the Klan and Nazi defendants, along with various named agents of the Greensboro Police, the FBI, and the BATF, .including the two informant defendants, formed and agreed upon a plan. The crux of the plan was that the Klan and Nazi defendants would attack the participants, and the police defendants would fail to protect them and would otherwise facilitate the attack. Various defendants met and communicated on a number of occasions and committed overt acts in support of the plan. In addition to the Klan and Nazi defendants, the official defendants and the informant defendants took various unlawful steps outlined in the complaint, in preparation for the attack. The informant defendants Dawson and Butkovich actively participated in planning the attack. Their superiors in the FBI and BATF were “fully aware” of their roles and “permitted, encouraged and/or failed to prevent their activity.” The Greensboro Police and named federal agents had full advance knowledge of the planned attack and failed to take any steps to prevent it or to warn the plaintiffs. The complaint sets out the events of November 3, 1979 in some detail. Suffice it to say that the Klan and Nazi defendants brutally attacked the plaintiffs en masse, killing some and wounding others. Greensboro police, FBI and BATF defendants monitored the approach of the Klan/Nazi attack vehicles, and yet failed to take any steps to prevent it. The Greensboro police officers responsible for providing police protection were deliberately absent at the crucial time. The attack proceeded unhampered, and many of the attackers were able to flee because the Greensboro police defendants intentionally delayed efforts to apprehend them. Finally, the complaint states that the defendants charged with complicity in the attack, along with named additional officials including the CRS defendants, the state defendants, and the City of Greensboro officials, “engaged in a course and pattern of activities designed to conceal the nature of the November 3 attack” and the involvement of the law enforcement officials therein. Acts taken in- furtherance of the cover-up design included the arrest, on baseless charges, of a number of the plaintiffs; some were arrested immediately after the attack and some at a later time. Dismissal of these state criminal charges came about when the Klan/Nazi defendants were acquitted of the charges against them. To further the cover-up of official involvement, District Attorney Schlosser and others assisting him in the state criminal prosecutions failed in several ways to pursue those prosecutions vigorously. Other acts taken in furtherance of the cover-up are described in the complaint and will be summarized as necessary, infra. The complaint charges that the defendants who occupied supervisory governmental positions maintained a number of policies and practices that contributed to the deprivations of the plaintiffs’ rights. Inter-alia, the supervisory personnel failed to screen, train, and supervise their employees and informants adequately regarding the official duties implicated in the attack and the cover-up. The complaint charges that by the aforementioned actions the defendants deprived them of equal protection of the laws and of their equal rights, privileges and immunities under the First, Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States. All of the defendants, except for a few of the supervisory officials, are charged with participation in a conspiracy to deprive the plaintiffs of their .equal rights, in violation of 42 U.S.C. § 1985(3). The conspiracy supplies, as well, the basis for a claim against the city and state officials under 42 U.S.C. § 1983 and against the federal officials directly under the Constitution. See Bivens, supra. . The Greensboro Police defendants are charged with failing to protect the plaintiff’s exercise of their First Amendment rights in violation of 42 U.S.C. § 1983. They and the FBI and BATF defendants are charged with failing to prevent the § 1985(3) conspiracy despite their advance knowledge of the attack and their power to prevent it, in violation of 42 U.S.C. § 1986. The federal defendants are also charged in a Bivens count with failing to prevent the attack. In several § 1983 and Bivens counts, the complaint charges the government officials in supervisory positions with adhering to enumerated unconstitutional policies and practices, including failure to train and supervise their subordinates adequately. The complaint also charges virtually all the defendants in a count pursuant to 42 U.S.C. § 1981. Finally, the complaint includes state law claims against various defendants for wrongful death, battery, false arrest and malicious prosecution, and abuse of process. The Court will proceed to consider in seriatim each of the moving defendants’ contentions heretofore summarized. SOVEREIGN IMMUNITY The complaint names nine local, state, and federal agencies as defendants, noted on the chart, supra, as “agency defendants.” Additional defendants are all the governmental officials in their official capacities. These defendants have moved to be dismissed from the complaint on the grounds that they are immune from suits seeking monetary relief and that the complaint does not sufficiently state a claim for any other form of relief. For the most part, the Court agrees with both contentions. Injunctive relief is requested in the instant complaint only in the final sentence, wherein the plaintiffs “request that the court issue such other orders and grant such declaratory, equitable and other additional relief as the interest of justice may require.” No request for specific injunctive relief is made. Nor are the facts alleged sufficient to sustain injunctive relief. The plaintiffs have failed to allege facts suggesting that they are presently sustaining some direct injury or that there is a real and immediate threat of such injury in the future. Such facts are the necessary predicates to a grant of injunctive relief. City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983); Buie v. Jones, 717 F.2d 925, 927-8 (4th Cir.1983). The attack is over. The only allegedly continuing violations of the plaintiffs’ rights are the cover-up activities, and those charges will be mooted by the disposition of the damages portion of this action. The sovereign immunity of the United States, unless waived, protects the federal agencies and the federal officials in their official capacities from liability for money damages. Congress has waived the federal government's immunity only as to claims brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. It is uncontested that this action was not brought pursuant to the provisions of that Act. The CRS, FBI, BATF, Department of Justice as well as the federal employees in their official capacities will be dismissed. The sovereign immunity of North Carolina and the Eleventh Amendment to the U.S. Constitution provide the state agencies and the state officials in their official capacities with similar immunity, with the exception that Congress may force a waiver on the states for the purpose of enforcing the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). Congress did not force such a waiver on the states when it enacted 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), Reimer v. Smith, 663 F.2d 1316 (5th Cir.1981). Hence, the Eleventh Amendment bars recovery of damages as asserted herein against North Carolina, its agencies, and its officials in their official capacity. The State of North Carolina, the SBI, the Department of Crime Control and Public Safety and the state employees in their official capacities will be dismissed. The City of Greensboro, on the other hand, and its employees in their official capacities come within the meaning of the word “person” in 42 U.S.C. § 1983 and are not protected by sovereign immunity. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The motions to dismiss them will be denied. On the strength of the representation, from counsel for the City of Greensboro, that the “Greensboro Police Department” is not an independent legal entity, the Police Department will be dismissed from the complaint as a separate defendant. All liability charged against it will be deemed to be charged against the City of Greensboro. PERSONAL JURISDICTION The various federal defendants seek dismissal pursuant to Fed.R.Civ.P. 12(b)(2) and (5), contending on several grounds that the Court has no personal jurisdiction over them and/or that they were not properly served with process. The Court agrees that certain of the individual federal defendants should be dismissed on these grounds. Attorney General Bell was never served with process. Nor was Agent Monahan of the FBI. They will be dismissed as defendants. Attorney General Civiletti was not served in his individual capacity and will also be dismissed. Attorney General W.F. Smith was never served personally, nor was Robert Ensley of the CRS. Service on them was attempted solely through service on the United States Attorney, as their agent. The defendants have argued, convincingly, that such service is adequate only against a federal officer sued in his official capacity. Stafford v. Briggs, 444 U.S. 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980), construing 28 U.S.C. § 1391(e). Smith and Ensley will be dismissed. Two of the federal defendants were served by United States Marshals within the territorial limits of North Carolina. They are FBI Agents Pelczar and Brereton, both resident agents in North Carolina. The service effected on them complies fully with Fed.R.Civ.P. 4. No serious objection can be made to the manner of service on them or to the Court’s jurisdiction over their persons. As to them, the motions premised on Fed.R.Civ.P. 12(b)(2) and (5) will be denied. Service on the remaining federal defendants was attempted in accordance with the law of the forum state, North Carolina. Fed.R.Civ.P. 4(c)(2)(C)(i) provides for such service as an alternative to the forms of service specified elsewhere in the federal rule. When service is made pursuant to the forum state’s law, both the service of process requirements and the personal jurisdiction requirements of state law must be met. North Carolina’s service of process rules are contained in N.C.G.S. § 1A-1, North Carolina Rule 4(j) (1980) (modified and repealed in part, 1981). As to personal jurisdiction, North Carolina’s long-arm statute is found at N.C.G.S. § 1-75.4.’ That provision has been construed as reaching as far as the due process limits of the U.S. Constitution will allow it. Dillon v. Numismatic Funding Corp., 291 N.C. 674, 231 S.E.2d 629 (1977). Accordingly, the tests to be applied regarding the remaining federal defendants herein are: Was North Carolina Rule 4(j) complied with? If so, would the' exercise of personal jurisdiction comport with due process? Three defendants (Pence, Westra, and Moses) were served within North Carolina by certified mail.addressed to them in their individual capacities at their offices within North Carolina. The returns show that service was received, accepted, and signed for. The Court finds that the objections to this form of service are meritless. Defendants have argued a convoluted non-obvious construction of North Carolina Rule 4(j)(l)(c), contending that service by certified mail is allowable only at a person’s home, not at his or her office. The language of the rule makes no reference to home or office that is relevant here; it requires simply that a complaint sent by certified mail be “addressed to the party to be served, and delivering to the addressee only.” Policy considerations likewise do not support the defendants’ proposed construction: indeed, many defendants sued in connection with their work might prefer that plaintiffs not be encouraged to seek out their home addresses. The defendants offer no case support for their asserted construction. They do not deny having received the copies of the complaint that were received by certified mail at their respective offices. The Court finds that they were adequately served. These three defendants object also, along with the other federal defendants, to the Court’s exercise of personal jurisdiction over them. The argument begins with the Supremacy Clause of the United States Constitution and ends, if adopted, with the result that no court would ever have personal jurisdiction over any federal employee who was not personally served by United States Marshals within the forum state, even if the employee resides and works in the forum state. Whatever merit there may be in such a contention escapes the Court’s comprehension. Two defendants (Conroy and Butkovich), employees in the BATF’s Cleveland, Ohio office, were served personally by United States Marshals in Cleveland. The Court finds that they were properly served. North Carolina Rule 4(j)(9) allows for personal service on out-of-state defendants when the defendants, are within the reach of the state’s long-arm statute. As to defendant Butkovich, there is no doubt that long-arm jurisdiction does not offend due process. The plaintiffs allege, and the defendants apparently concede, that Butkovich was on special assignment in North Carolina, conducting an undercover investigation of certain Nazi Party members, around the time of the attack. The plaintiffs allege, inter alia, that he infiltrated the Nazi party, and that, as an “informant-provocateur,” he actively participated in the planning of the attack. Due process requires only a showing of “some act [related to the cause of action alleged] by which the [non-resident] defendant purposefully avails [himself] of the privilege of conducting activities within the Forum State — ” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958). Generally, the commission of a single tortious act within the forum state is sufficient. See Columbia Briargate Co. v. First National Bank in Dallas, 713 F.2d 1052, 1057 (4th Cir.1983), and cases cited therein. The Court concludes that defendant Butkovich’s alleged activities in North Carolina in 1979, are a sufficient basis for denying the motion to dismiss him on these grounds at this time. The Court concludes similarly as to defendant Conroy, although admittedly the issue is closer as to him. Conroy is the agent in charge of the Cleveland BATF Office, to which Agent Butkovich was regularly assigned during his special assignment in North Carolina. Plaintiffs allege that Conroy was Butkovich’s supervisor; that he was “fully aware” of Butkovich’s participation in the planned attack before it took place; and that he took no steps to prevent the attack. Importantly, the plaintiffs allege also that Conroy “monitored” the approach of the Klan/Nazi attack caravan toward the rally site. A fair implication of this allegation is that he was present in North Carolina at the time. The defendants have not denied that Conroy was present in North Carolina at the time of the attack or otherwise in connection with the alleged torts. Absent affidavits or other evidentiary submittals from the defendants, the Court may decide the issue on the pleadings. See Gemini Enterprises, Inc. v. WFMY Television Corp., 470 F.Supp. 559, 565 (M.D.N.C. 1979); McLaughlin v. Copeland, 435 F.Supp. 513, 529-533 (D.Md.1977). On the strength of the allegation that Conroy was present in North Carolina in connection with the alleged tort, the Court concludes that he, too, is within the reach of the permissible long-arm jurisdiction. It is to be kept in mind that the Court’s instant rulings are premised solely on unrefuted pleadings. Factual determinations may well warrant a different conclusion. The final three federal defendants are Webster, Pompa, and Dickerson, who are Directors of the FBI, CRS, and BATF respectively. They were served out-of-state by certified mail, addressed to them in their individual capacities at their respective offices. While the Court finds the manner of service adequate, the objections to the exercise of personal jurisdiction may be well taken. The objections to the manner of service on these out-of-state defendants parallel those made for the in-state defendants served by certified mail: defense counsel argues that North Carolina Rule 4(j)(9) (governing out-of-state service by mail) allows service by certified mail only at a person’s home address, not at his or her office address. This proposed construction of Rule 4(j)(9) has not improved by repetition. It is as unsupported as defendants’ contention dealing with North Carolina Rule 4(j)(l)(c) (governing in-state service by mail), and the Court rejects it. Turning to the issue of personal jurisdiction, the complaint does not allege that any of these three defendants were ever personally present in North Carolina in connection with plaintiffs’ causes of action. They are alleged to be liable only for their subordinates’ acts and/or as co-conspirators with those who allegedly did act in North Carolina. Consequently, personal jurisdiction over them is available, if at all, only pursuant to the “conspiracy theory of personal jurisdiction.” That theory holds that in some circumstances an alleged co-conspirator’s presence in the forum state is enough to justify exercise of personal jurisdiction over the out-of-state co-defendant who had no contacts of his own with the forum state. See McLaughlin v. McPhail, 707 F.2d 800, 806-807 (4th Cir.1983); Gemini Enterprises, Inc. v. WFMY Television Corp., supra, 470 F.Supp. at 564-565 and cases cited therein. The Court of Appeals for the Fourth Circuit has neither accepted nor rejected this theory to date. See McLaughlin v. McPhail, 707 F.2d at 807. Defendants have cited no case support for an outright rejection of the theory, however, and the Court is convinced from the facts and reasoning in Gemini that in some circumstances, adherence to this theory would be appropriate. Applying the Gemini test to the instant case, jurisdiction may be exercised over Webster, Dickerson, and Pompa if and only if they had co-conspirators who performed substantial acts in furtherance of an unlawful conspiracy in North Carolina and they “knew or should have known” that those acts would be performed in North Carolina. Gemini, 470 F.Supp. at 564. The complaint does not allege any such facts as to Pompa. His involvement was only with certain acts in furtherance of the “cover-up conspiracy,” and the complaint does not allege that any of those acts took place in North Carolina. He will be dismissed. The complaint alleges that both Webster and Dickerson were “fully aware,” in advance of the attack, of the roles of their alleged subordinates/co-conspirators in the attack. If this were proven to be true, and if Webster and Dickerson were proven to be members of the conspiracy, then they could be subjected to personal jurisdiction in North Carolina under the conspiracy theory. The Court anticipates, however, from counsel’s argument, that these defendants may be prepared to deny by affidavit any such advance knowledge of and any participation in the conspiracy. By order issued with this memorandum, the Court will grant them leave to do so, if they be so advised, within an appropriate time. If Webster and Dickerson file appropriate affidavits, the plaintiffs will be granted leave to respond with a prima facie showing by counter affidavits that Webster and Dickerson were members of the conspiracy and that they had the requisite advance knowledge of the co-conspirators’ acts in North Carolina. See Gemini, 470 F.Supp. at 565; McLaughlin v. McPhail, 707 F.2d at 807. The Court will not permit discovery to proceed against these defendants, however, until the plaintiffs make such a prima facie showing. The relevant issues of jurisdictional fact would not in all likelihood be resolvable through any form of limited discovery, and it would be inappropriate to force these defendants to remain in the case throughout the discovery on the merits unless personal jurisdiction is first established. The Court’s authority to decline such discovery is clear. McLaughlin v. McPhail, supra at 806-807. If Webster and Dickerson file denials by affidavit, and the plaintiffs cannot make the required prima facie showing by counter affidavits without such discovery, these defendants will be dismissed. To summarize, the following federal defendants will be dismissed on personal jurisdiction grounds: Bell, Monahan, Civiletti, Smith, Ensley, and Pompa. Webster and Dickerson will be dismissed on these grounds if they file affidavits as heretofore discussed and the plaintiffs do not successfully contradict them; in the meanwhile, the motions to dismiss these two defendants on all grounds asserted will be continued under advisement, and discovery against them personally will be stayed. The motions to dismiss the following federal defendants for lack of jurisdiction will be denied: BATF agents Westra, Conroy and Butkovich, and FBI agents Pence, Moses, Pelczar, and Brereton. Other grounds for dismissal asserted by these defendants are addressed, infra. PROSECUTORIAL IMMUNITY District Attorney Schlosser argues that he is entitled, as he is, to absolute prosecutorial immunity from all the claims lodged against him in this action. The complaint charges Schlosser with violations of 42 U.S.C. § 1981, § 1983, and § 1985(3). The factual allegations on which these claims are based largely relate to his role in prosecuting certain of the Klan/Nazi defendants on state criminal charges. The complaint asserts that he failed to prosecute them vigorously, failed to call relevant witnesses, etc. It alleges that he conducted the prosecution in that manner as a means to further the cover-up of official involvement in the attack. It charges that he also made false and inflammatory public statements to further the cover-up. The complaint does not charge Sehlosser with participation in or advance knowledge of the attack conspiracy. With the possible exception of the inflammatory public statements, all of these allegations are premised on acts within the prosecutorial function and hence are barred by absolute immunity. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). False, inflammatory public statements are not within the prosecutorial function and hence such allegations might strip the prosecutor of his absolute immunity in an appropriate case. Hampton v. Hanrahan, 600 F.2d 600, 632-633 (7th Cir. 1979), modified on other grounds 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); but cf. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). In the instant case, however, the complaint does not describe the allegedly false and inflammatory public statements sufficiently to enable Sehlosser or the Court to evaluate whether his immunity covers them. The plaintiffs have merely characterized unidentified statements as false and inflammatory. “The immunity doctrine would be of little value if such characterization____could force the prosecutor to stand trial.” Weathers v. Ebert, 505 F.2d 514, 517 (4th Cir. 1974), quoting Hampton v. City of Chicago, 484 F.2d 602, 608 (7th Cir. 1973). The Court concludes that the complaint does not allege sufficient facts to show that plaintiffs’ claims come within any exception to the traditional rule of prosecutorial immunity. Weathers v. Ebert, 505 F.2d at 516. Schlosser’s motion to dismiss will be granted. The federal defendants argue that they, too, are absolutely immune from the claims against them. The plaintiffs have not contested this assertion in their brief as to the state law claims, and the Court concludes that the federal defendants are, while acting within the perimeters of their respective lines of duty, absolutely immune from state or common law tort liability. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Birnbaum v. United States, 588 F.2d 319 (2nd Cir.1978); Miller v. De Laune, 602 F.2d 198, 200 (9th Cir.1979). Counts Eleven through Fourteen will be dismissed as to the federal defendants. Regarding the federal law counts, the federal defendants argue that they are entitled to absolute prosecutorial immunity. With the exception of Brereton, however, all the federal defendants now being considered are charged with participation in the attack conspiracy and/or with failure to prevent the attack despite advance knowledge of it. The scope of prosecutorial immunity turns on whether- the acts charged were within the prosecutorial function, not on the status of the actor. Hampton v. Hanrahan, 600 F.2d at 631. These allegations describe activities unquestionably outside the prosecutorial function. Brereton’s alleged involvement arises solely from his role in the federal investigation following the attack. The complaint does not charge him with pre-attack knowledge or participation. It is arguable that such investigative work would be protected by absolute prosecutorial immunity. See Ross v. Reed, 719 F.2d 689, 694-695 n. 5 (4th Cir.1983); Segarra v. McDade, 706 F.2d 1301 (4th Cir.1983); but cf. Hampton v. Hanrahan, 600 F.2d at 631-632; Gray v. Bell, 712 F.2d 490, 499-502 (D.C.Cir. 1983). The Court need not decide this issue, however, because it has concluded that the complaint should be dismissed as to Brereton on other grounds, to wit, deficiencies in the pleadings against him. See infra. Indeed, the vagueness of the pleadings against Brereton would make the task of applying the law to his immunity claim difficult if not impossible. The federal defendants’ arguments may also be construed as seeking dismissal on the grounds that their qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) bars this action. Claims of qualified immunity, however, are not yet properly before the Court. The defendants must affirmatively plead such claims in their answers and then raise them in properly supported motions for summary judgment. Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Harlow v. Fitzgerald, 457 U.S. at 815, 102 S.Ct. at 2737. On the basis of the record now before the Court, the federal defendants’ immunity claims will be denied, except as heretofore stated. SUFFICIENCY OF PLEADINGS UNDER FED.R.CIV.P. 8(a) The defendants argue that the complaint should be dismissed because it fails to state specifically the facts on which the allegations are based. Whatever the deficiencies of previous versions of the complaint may have been, the Court concludes that, with a few exceptions, the second amended complaint is sufficient to avoid dismissal on this ground. Fed.R.Civ.P. 8(a) as construed in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), requires only “ ‘a short and plain statement of the claim’ sufficient to give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” 355 U.S. at 47-48, 78 S.Ct. at 103. The complaint need not disclose precisely the basis of the claim or narrowly define the disputed facts and issues; various discovery devices are available for that purpose. Id. Moreover, the complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 355 U.S. at 45-46, 78 S.Ct. at 102. The defendants suggest that a more rigorous test should be applied in the instant case because it is a civil rights case. The Court disagrees. The cases on which the defendants rely for this proposition come primarily out of the Third Circuit. Apparently the Court of Appeals for that Circuit has adopted a more stringent test. See, e.g., Kauffmann v. Moss, 420 F.2d 1270, 1275 (3rd Cir.1970). The Court of Appeals for the Fourth Circuit, to whose opinions this Court is bound, has not adopted that position; nor have the majority of the other circuits. See, e.g., Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.1978); Johnson v. Mueller, 415 F.2d 354, 355 (4th Cir.1969); Kauffmann v. Moss, 420 F.2d at 1275 n. 13. The defendants also imply, relying on Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) and its predecessors, that special, rigid pleading requirements’ should be applied to suits seeking damages from government officials. . It is true that the Supreme Court in Harlow emphasized its “expectation that insubstantial lawsuits need not proceed to trial.” 457 U.S. at 808, 102 S.Ct. at 2733. Its only reference to pleading requirements, however, consists of a statement of the standard pleading rule and an exhortation to the lower courts to follow it: Insubstantial lawsuits can be quickly terminated by federal courts alert to the possibilities of artful pleading. Unless the complaint states a compensable claim for relief ..., it should not survive a motion to dismiss. Id., quoting Butz v. Economou, 438 U.S. 478, 507-508, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). This statement does not purport to establish extraordinary pleading requirements for cases against government officials. The issue addressed in Harlow was a government official’s claim of qualified immunity, raised in a motion for summary judgment. The power of the Harlow opinion to protect government officials from insubstantial lawsuits lies primarily in its resolution of that issue. “This holding [Harlow] was intended to facilitate the resolution of insubstantial claims against government officials by summary judgment.” McElveen v. County of Prince William, 725 F.2d 954 (4th Cir.1984) (emphasis added). As discussed supra, the burden to plead qualified immunity lies with the defendants. An otherwise adequate complaint need not fulfill any special pleading requirements in anticipation that the answers may raise qualified immunity defenses. See generally Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980). The Court must measure the instant complaint against the Conley v. Gibson standard. A. Conspiracy The Court is also satisfied that no heightened pleading requirements come into play simply because the complaint charges a conspiracy. However, the Conley v. Gibson requirement that the defendant be given “fair notice of what the plaintiff’s claim is and the grounds on which it rests” may take on special import when a conspiracy is alleged. In most cases, a bare conclusory allegation of “conspiracy” or “concerted action” will not suffice. The- plaintiffs must expressly allege an agreement or make averments of “communication, consultation, cooperation, or command” from which such an agreement can be inferred. See Weathers v. Ebert, 505 F.2d 514, 517 (4th Cir.1974). Allegations that the defendants’ actions combined to injure the plaintiffs are not a sufficient basis from which to imply a conspiracy. See Davis v. Sprouse, 405 F.Supp. 45, 46 (E.D.Va.1975). Additionally, the plaintiffs must make “specific factual allegations connecting the defendant to the injury____” Sigler v. LeVan, 485 F.Supp. 185, 196 (D.Md. 1980); see also Ostrer v. Aronwald, 567 F.2d 551 (2nd Cir.1977). On the other hand, an overt act need not be pleaded against each defendant, because a single overt act by just one of the conspirators is enough to sustain a conspiracy claim even on the merits. See Vietnamese Fishermens Association v. Knights of the Ku Klux Klan, 518 F.Supp. 993 (S.D.Tex.1981). Nor are the plaintiffs required to allege exactly how the agreement was made — i.e. they need not allege exactly where and when, and with what words, the agreement was formed. Magayanes v. Chicago, 496 F.Supp. 812, 815-816 (N.D.Ill.1980); Reichardt v. Payne, 396 F.Supp. 1010 (N.D. Calif.1979), aff'd in part and remanded on other grounds, 591 F.2d 499 (9th Cir. 1979). Conspiracies are by their very nature secretive, and the victims thereof are unlikely to have access to such facts before bringing suit. See Vazquez v. Ferre, 404 F.Supp. 815, 822 (D.N.J.1975). All that can be required at the pleading stage is that a defendant be given notice of how he is alleged to have participated in the conspiracy, so that he may intelligently prepare his answer and defense. The instant complaint gives the Court little difficulty under these standards in regards to the Greensboro police and the federal defendants who joined the conspiracy before the attack. The complaint sets out in Paragraph 34 that each of them agreed to the plan for the attack. In the succeeding paragraphs it satisfactorily specifies the involvement of each. Regarding the federal defendants in particular, the complaint specifies that Butkovich, an agent of the BATF, acted as-an “agent-provocateur,” and that as such, he joined the Nazi Party and “actively participated in the planning of the attack and encouraged Nazi defendants to purchase, carry and use weapons in the attack.” Complaint, 117b and 1137. Informant Dawson was working as an informant for the FBI as well as the Greensboro police, and he “took a leadership role in planning and recruiting for the attack.” Complaint, ¶ 7a and 1137. All of the other federal defendants charged with pre-attack participation acted in supervisory capacities over Butkovich or Dawson. They were fully aware of Dawson’s and Butkovich’s roles and “permitted, encouraged and/or failed to prevent their activity.” Complaint, 11 37. Most of these defendants “monitored the approach” of the Klan/Nazi attack vehicles and failed to take any action to stop them, despite their knowledge of what was about to happen. Complaint, ¶ 50. Without question these allegations are factually sufficient for the claim against the federal defendants under 42 U.S.C. § 1986. See Peck v. United States, 470 F.Supp. 1003, 1012 (S.D.N.Y.1979). Peck held, however, on the facts therein (which were similar but not identical to those alleged here), that a § 1985(3) claim against the federal officers was not stated. In Peck, the FBI agents were alleged to have known through their informant, Rowe, of an impending Klan attack on a group of “Freedom Riders” and of the local police’s alleged agreement to arrive 15 minutes “late” so that the attack might go forward unhampered. In support of the § 1985(3) claim against the FBI agents, the complaint alleged only that the defendants “approved the acts of Rowe and likewise participated in and furthered the ... conspiracy.” Id. The Court concluded that mere knowledge is insufficient to sustain a claim under § 1985(3), and it dismissed the FBI agents from that count. Id. This Court agrees with Peck’s approach but finds the facts alleged herein distinguishable on the § 1985(3) claim. At least one of the informants herein was actually a federal employee (Butkovich). The supervisory defendants herein are alleged to have “encouraged, permitted, and/or failed to prevent” the activities of Butkovich and Dawson. While the latter two alternatives — permission and failure to prevent — might only be sufficient to sustain the § 1986 count, the “encouragement” alternative could sustain the § 1985(3) count as well. In addition, the alleged “monitoring” presence of most of these defendants at the attack could conceivably support the § 1985(3) count. Although the issue is not as clear as some, the Court concludes that these allegations sufficiently distinguish this case from Peck to allow the § 1985(3) count to remain in the case during discovery along with the § 1986 count. Whether the plaintiffs can muster any evidence in support of either count against these defendants remains to be seen. For now, the motions of these defendants to dismiss for failure to comply with Fed.R.Civ.P. 8(a) will be denied. B. Cover-up The complaint alleges that some additional local, state and federal defendants (the “cover-up defendants”) joined only the post-attack conspiracy to cover up the nature of the attack. Excluding defendants who have already been dismissed on other grounds or whose motions have been continued under advisement, the cover-up defendants are as follows: Greensboro police defendants Batemen, Ozment, and Williams; the City of Greensboro; Greensboro City Officials Melvin, Osborne, and Lovelace; state officials Mitchell, Starling, and Ray; and FBI Agent Brereton. Other defendants charged with complicity in the cover-up are also charged with complicity in the attack; as against them, the Court has already found the pleadings to be sufficient. The cover-up allegations are more troublesome than the attack allegations. Paragraph 52 of the complaint contains the general cover-up claim. It does not allege a general agreement to perpetrate a coverup. Rather, it alleges only that the various defendants “engaged in a course and pattern of activities designed to conceal...” The coincidental concurrence of defendants’ actions does not a conspiracy make. Davis v. Sprouse, 405 F.Supp. at 46. Other paragraphs remedy this omission as to some but not all of the cover-up defendants, as discussed infra. More importantly, the complaint does not make sufficiently specific factual allegations against certain of the cover-up defendants to give them fair notice of the charges against them. The only specific accusation against Mitchell, the Director of the North Carolina Department of Crime Control and Public Safety, is that he “made false and inflammatory public statements and engaged in disruptive and illegal activities to promote hostility toward plaintiffs____” Complaint, ¶ 56. The statements are not identified by time, date, content, or otherwise, nor does the complaint state in what manner he spoke falsely. The same allegation is levelled against defendant Lovelace, the Director of the Department of Public Safety of the City of Greensboro; again, no specifics are provided. Defendants Ray and Starling, both SBI officials, are not mentioned by name in any of the paragraphs containing specific allegations about the cover-up. Presumably they are included in the paragraph that accuses all the cover-up defendants of testifying falsely or incompletely concerning the attack or otherwise misrepresenting or withholding relevant evidence from one or more of the seven agencies listed as having conducted investigations of the attack. Complaint ¶ 61. This charge is not sufficiently specific to give the defendants the fair notice to which they are entitled. Brereton, an FBI agent, is said to have been involved in the FBI “investigation and cover-up” of the attack. Complaint 1111(d) and ¶ 62. The complaint does not allege any agreement or cooperation between him and other defendants, nor does it sufficiently apprise him of how his role in the investigation is alleged to have constituted participation in a cover-up conspiracy. On the other hand, the complaint states with particularity the charges against Batemen, Ozment, and Williams of the Greensboro Police Department. It alleges that they conducted a sham investigation and prepared a false administrative report attempting to exonerate the police, all under the direction of Police Chief Swing. The element of “agreement” can be inferred from their alleged cooperation with each other and with Chief Swing. See Weathers v. Ebert, 505 F.2d at 517. The report is identified by the date of its public release. These defendants have been sufficiently notified of their alleged complicity in a cover-up conspiracy. Similarly, Melvin and Osborne, the Greensboro Mayor and City Manager respectively, are said as part of the cover-up to have assisted the City of Greensboro, by its City Council, in issuing several proclamations that commended various police actions. The agreement element can be inferred from these facts, and the complaint sufficiently identifies the proclamations by content. The Court finds the cover-up allegations to be sufficient against the City, Melvin, and, Osborne. In summary, the cover-up conspiracy claims, which are contained in Counts One, Two, and Eight, will be dismissed against Mitchell, Starling, Ray, Lovelace and Brereton. The Court notes that Brereton is not charged in any other counts; he will be dismissed from the action. The other above named defendants are charged in other counts still to be addressed. C. Policies and Practices Counts Four, Five, Nine, and Ten of the complaint charge that a number of the defendants occupying policy-making positions in government agencies promulgated and/or tolerated unconstitutional policies and practices in their agencies that caused, at least in part, the damages flowing from subordinates’ alleged misconduct. Counts Four and Nine charge named officials with adhering to the unconstitutional policies and practices set out in 11 67 and ¶ 68 of the complaint. Paragraph 67 lists six “policies,” ranging from “failure properly and adequately to screen for hiring, train, supervise and discipline their officers, agents and informants,” to “cooperation with and/or acquiescence in illegal, unconstitutional anti-labor activities and operations carried on by ... textile and other industrial and business concerns in and around Greensboro ... against radical labor organizers and activists____” Paragraph 68 states that the cover-up activities described elsewhere in the complaint represented the high level policies of each of the agencies allegedly involved therein. Counts Five and Ten are narrower; they simply repeat the supervisory practices claims contained in Counts Four and Nine, in more specific form. The defendants object that the policy/practices counts are too conclusory and vague to satisfy the appropriate pleading requirements. The Court finds their position well-taken as to all but the supervisory practices claims, as hereinafter discussed. The complaint states no factual grounds whatsoever for the charge of collusion with Greensboro textile concerns quoted supra. Nor does it allege how this “policy” contributed to any violation of the plaintiffs’ constitutional rights. See Polk County v. Dodson, 454 U.S. 312, 326, 102 S.Ct. 445, 454, 70 L.Ed.2d 509 (1981). In the Court’s view, the complaint does not fairly notify the defendants of what this claim is, nor of the grounds on which it rests. Conley v. Gibson, 355 U.S. at 47-48, 78 S.Ct. at 102-103. The other policy/practice claims itemized in H 67 and H 68, with the exception of the supervisory practices claims, are similarly conclusory and will be dismissed. Because the supervisory practices claims contained in Counts Four and Nine are repeated in Counts Five and Ten, the Court will dismiss Counts Four and Nine altogether. Count Five purports to state a claim under 42 U.S.C. § 1983, for deficient supervisory practices, against the City of Greensboro; Greensboro's Director of the Department of Public Safety, Lovelace; Greensboro Police Officials Swing, Hampton, Gibson, Spoor, Comer, and Hightower; and State Officials Mitchell, Starling, Ray and Hunt. Count Ten purports to state a similar claim in a Bivens action against FBI Agents Pelczar and Pence; BATF Agents Westra and Conroy; and other defendants, some of whom are not now before the Court because it has already determined supra that their motions for dismissal will be granted. Some have motions which will be continued under advisement, supra. The defendants move for dismissal of these counts for failure to comply with Fed.R.Civ.P. 8(a). They also raise other challenges to these claims which will be addressed in a separate section, infra. Leaving aside, for the moment, the North Carolina officials, the Court concludes that the factual basis for these claims is clear. According to the complaint, these defendants occupied direct supervisory control over named subordinates whose misconduct is detailed elsewhere in the complaint. The fair implication of the complaint is that if these defendants had properly screened, trained, and supervised their named subordinates, those subordinates would not have acted as they did, and hence the constitutional violations would not have occurred. The Court concludes that these accusations fairly put these defendants on notice as to how they are alleged to have harmed the plaintiffs. While the complaint does not detail the deficiencies in their supervisory practices as much as hopefully pleadings would, the lack of detail is not fatal. Information on those practices is, presumably, peculiarly within the defendants’ possession. Because discovery in this action has been stayed, the plaintiffs have not yet had the opportunity to explore what the defendants’ supervisory practices were and how they might have contributed to the subordinates’ conduct. If the supervisory practices allegations do not become clearer to the defendants as discovery proceeds, the Court will entertain appropriate motions at a later time. For now, at least in this regard, the pleadings suffice. That conclusion does not apply to the State officials named in Count Five —Hunt, Starling, Ray, and Mitchell. The complaint does not describe any misconduct on the part of persons named as their subordinates. Aside from vaguely suggesting that unidentified SBI agents worked with informants and infiltrators, and that the SBI evidenced pre-existing hostility to the plaintiffs, the complaint makes virtually no mention of any North Carolina employees. In particular, it does not charge that any North Carolina agent participated in the attack or had advance knowledge of it. As the Court has already noted, the cover-up charges against North Carolina officials Mitchell, Starling, and Ray are hopelessly vague. The Court concludes that the complaint does not adequately notify the North Carolina officials of how their supervisory practices harmed anyone. Count Five will be dismissed as to these four defendants. D. Summary The Court notes that each of the charges against Hunt, Mitchell, Starling, and Ray have now been found to be insufficiently pleaded. They will be dismissed from the action, along with Brereton, regarding whom the only charge made was found to be insufficiently pleaded. Additionally, Counts Four and Nine will be dismissed. Finally, Lovelace will be dismissed from Counts One and Two, which purported to charge him in connection with the cover-up, but will remain in the case on other counts. In all other respects, the motions to dismiss for failure to comply with Fed.R. Civ.P. 8(a) will be denied. 8 1985(3) CONSPIRACY The Supreme Court has held that a cause of action under 42 U.S.C. § 1985(3) requires the following four elements: (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 his person or property or deprived of any right or privilege of a citizen of the United States. Carpenters v. Scott, — U.S. —, 103 S. Ct. 3352, 3356, 77 L.Ed.2d 1049 (1983), Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798-99, 29 L.Ed.2d 338 (1971). In addition, the Supreme Court has interpreted the statute to require that there must be “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” Carpenters, 103 S.Ct. at 3356; Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. This requirement is intended to give content to- the Congressional purpose that the statute reach only conspiracies to deprive the equal protection of the laws or equal privileges and immunities. Id. The moving defendants contend, for several reasons, that the conspiracy claim should be dismissed pursuant to Fed.R. Civ.P. 12(b)(6) because it is legally insufficient to state a cause of action under § 1985(3) against some or all of the defendants so charged. A. Discriminatory Animus The complaint states that the alleged conspiracy was motivated by individiously discriminatory animus against “communists and/or advocates of equal rights for black people and/or labor organizers.” The defendants argue that none of these alternatives is sufficient to fulfill the requirement that there be some racial, or otherwise class-based, invidiously discriminatory animus. The plaintiffs contend that each of the three alternative forms of discriminatory animus alleged satisfies the requirement. The Supreme Court recently scrutinized the meaning of the discriminatory animus requirement in Carpenters, supra. That case arose out of a violent altercation between pro-union residents of Port Arthur, Texas and employees of a non-union-shop company that had recently settled in the area. The evidence showed that the pro-union residents made threats against the non-union employees on a number of occasions and