438 F.2d 1221
James A. CARROLL, Plaintiff-Appellant,
v.
James J. ANDREWS and Red Top Sedan Service, Inc.,
Defendants-Appellees.
No. 29877.
United States Court of Appeals, Fifth Circuit.
Feb. 24, 1971.
Theodore Klein, Fine, Jacobson & Block, Miami, Fla., for plaintiff-appellant.
Arno Kutner, W. Carl Rentz, Preddy, Haddad, Kutner & Hardy, Miami, Fla., for defendants-appellees.
Before GEWIN, COLEMAN, and AINSWORTH, Circuit Judges.
PER CURIAM:
This is an appeal from the District Court's order of January 5, 1970, dismissing James Carroll's complaint without prejudice for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief could be granted. The complaint alleged that Carroll had been unlawfully discharged from his job as a cab driver by Andrews. Appellant concedes that if jurisdiction existed it had to be based on 42 U.S.C.A. 1985(3).
The elements necessary to state a cause of action under this statute were set forth in Granville v. Hunt, 5 Cir., 1969, 411 F.2d 9. It was there stated:
'The elements necessary for a cause of action under the section are (1) a conspiracy by the defendants, (2) with a purpose of depriving the plaintiff of equal protection of the laws or equal privileges and immunities under the law, (3) a purposeful intent to discriminate, (4) action by the defendants under color of state law or authority, and (5) injury to the person or property of the plaintiff or his deprivation of a right or privilege as a citizen of the United States resulting from actions in furtherance of the conspiracy.'
The appellant's complaint makes no allegation which could possibly supply the element of 'action under color of state law'. For this reason his complaint based on 1985(3) must fail.
The final contention by the appellant is that the trial court erred in failing to allow him to amend his complaint. Amendments are within the discretion of the trial court. In this case the discretion was not abused, since under no conceivable statement of the facts could an amendment remedy the jurisdictional defects of the complaint.
The judgment of the District Court is
Affirmed.