Kevin Rutledge v. Arizona Board of Regents, Arizona State University, and Gary Horton, an Individual and Frank Kush, an Individual, Defendants

I.

Kevin Rutledge appeals the dismissal of his claim under 42 U.S.C. § 1985 (2) for failure to show compensable injury. We must decide whether a conspiracy to intimidate witnesses to an action in federal court can cause injury cognizable under section 1985(2) when the action is dismissed before trial on purely legal grounds, unrelated to any evidence or testimony those witnesses might furnish at trial or in discovery proceedings. Concluding that no such injury may arise, we affirm.

II.

This protracted litigation began in 1979. Kevin Rutledge is a former football player for Arizona State University (“ASU”). Rutledge alleges that Frank Kush, the former head football coach, assaulted him during a game between ASU and the University of Washington and that Kush and the other defendants attempted a cover-up of the incident. Rutledge filed a complaint in federal court against ASU; the Arizona Board of Regents; Kush; Gary Horton and William Maskill, former assistant coaches; and Fred Miller, ASU’s former athletic director. Rutledge sought relief under 42 U.S.C. § 1983 and a variety of state tort theories. Rutledge also alleged a conspiracy in violation of 42 U.S.C. § 1985 (2) among…