Spampinato v. M. Breger & Co.

Decision Date23 June 1959
Docket NumberNo. 300,Docket 25509.,300
PartiesThomas O. SPAMPINATO and Jane B. Spampinato, Plaintiffs-Appellants, v. M. BREGER & CO., Inc., Miles Breger, Dr. Guenther E. Winkler, Dr. Solomon Adelman, Dr. Max Weissman, Dr. Richard Perrault, The City of New York, Defendants-Appellees.
CourtU.S. Court of Appeals — Second Circuit

Thomas O. Spampinato, in pro. per.

Leiman & Trace, Maspeth, N. Y., Jacob Leiman, Maspeth, N. Y., of counsel, for defendants-appellees M. Breger & Co., Inc., and Miles Breger.

John Tovey, Jr., Martin, Clearwater & Bell, New York City, for defendant-appellee Winkler.

Edward Doberman, New York City, Charles H. Tenney, Corporation Counsel, New York City, for defendants-appellees Adelman, Weissman, Perrault and City of New York.

Before SWAN, HINCKS and MOORE, Circuit Judges.

SWAN, Circuit Judge.

This is an action by Mr. Spampinato and his wife to recover damages for alleged violations of their civil and constitutional rights. Their complaint was filed December 22, 1954. It asserts that the defendants are jointly and severally liable for damages in the amount of $300,000. The litigation on behalf of the plaintiffs has been conducted throughout by Mr. Stampinato, who is not a lawyer. An amended complaint was filed pursuant to an order of the court entered in July 1958. Thereafter a "supplemental amended complaint" was filed without leave of court having been obtained or sought. The present appeal is from orders entered in December 1958 pursuant to Judge Byers' memorandum opinion, D.C., 176 F.Supp. 149, which dismissed the amended complaint and the supplemental amended complaint as against all defendants then remaining as parties to the action, and denied plaintiffs' motion for reargument of the motions to dismiss.

Several points raised by the appeal can be disposed of summarily. The appellants have named as appellees Breger & Co. and Miles Breger, as well as all the other defendants, although the suit was dismissed as against the Breger defendants for lack of jurisdiction by an order of Judge Zavatt entered September 2, 1958, long before Judge Byers acted on the motions now on appeal.1 No appeal was taken from the September 2nd order, but subsequently thereto the plaintiffs filed an affidavit of prejudice against Judge Zavatt. The affidavit obviously could not affect the validity of the order already entered. In the present appeal counsel for the Bregers have filed a brief demonstrating that they are not proper parties. Assuming, without decision, that defendants M. Breger & Co. Inc. and Miles Breger may be considered parties to the present appeal, dismissal of the amended complaint as to them is affirmed for the reasons stated by Judge Zavatt.

The claim of error in denying reargument needs no discussion. A motion for reargument is discretionary and denial of it is not appealable. Klein's Outlet, Inc. v. Lipton, 2 Cir., 181 F.2d 713, certiorari denied 340 U.S. 833, 71 S.Ct. 59, 95 L.Ed. 612; Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557.

As already noted the supplemental amended complaint was filed without obtaining leave of court as required by Rule 15(a) F.R.Civ.P., 28 U.S.C.A. See also 28 U.S.C.A. § 1655. Even if leave had been requested, it could properly have been denied, as both Judge Zavatt and Judge Byers examined the supplemental amended complaint and found that in substance it was the same as the amended complaint. We agree that it was, and shall confine the rest of our discussion to the amended complaint.

The appellants' appendix is of little assistance. It sets out neither the original complaint nor the amended complaint. From the record it may be deduced that this action grew out of a dispute between Breger & Co. and the plaintiffs concerning their landlord-tenant relationship, and that plaintiffs first brought suit for a violation of their rights in a state court.2 Subsequent to the decision cited in Note 2, the suit in the state court was discontinued and the present action was then brought in the federal court. From the prolix allegations of the amended complaint it may be gathered that Miles Breger, together with an investigator of the New York City Department of Welfare and a City policeman, induced Dr. Winkler, a psychiatrist associated with the staff of Kings County Hospital, an institution owned and operated by the City of New York, to sign a certificate authorizing him (Mr. Spampinato) to be taken to the Psychopathic Ward of Kings County Hospital; that the Welfare inspector, the policeman and Dr. Winkler caused Mr. Spampinato to be transported to the hospital against his will, and that the other three doctors named as defendants, all employees of Kings County Hospital, detained and refused to release Mr. Spampinato from the hospital for a period of 17 days until directed to release him by an order of a state court judge. There are conclusory allegations that all this was done wilfully, maliciously and pursuant to a conspiracy, and that Mr. Spampinato was thus deprived of his constitutional rights in violation of the civil rights statutes, 42 U.S.C.A. §§ 1983, 1985 and 1986. Federal jurisdiction is rested on 28 U.S.C.A. § 1343. There is no diversity of citizenship.

Section 1983 of the Civil Rights statutes preserves constitutional rights from infringement by persons who act under federal or state authority, not private citizens who commit wrongful acts, however wilful and malicious they may be. See Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253. See also Judge Zavatt's lucid opinion at 166 F.Supp. 33. Section 1985 of the Civil Rights statutes applies to a conspiracy of private persons but only where the object of the conspiracy is to deprive a person...

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    • United States
    • U.S. District Court — District of New Jersey
    • 21 Octubre 1986
    ...the commitment is an employee of the state or appointed by the state to a committee to certify the commitment. See Spampinato v. M. Breger & Co., 270 F.2d 46 (2d Cir.), cert. den., 361 U.S. 944, 80 S.Ct. 409, 4 L.Ed.2d 363 (1959) (certifying psychiatrist on staff of a city hospital who auth......
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    ...Air Line R. R. Co., 341 F.2d 229, 231 (2d Cir. 1965); Hawkins v. Lindsley, 327 F.2d 356, 357 (2d Cir. 1964); Spampinato v. M. Breger & Co., Inc., 270 F.2d 46, 48 (2d Cir. 1959), cert. denied, 361 U.S. 944, 80 S.Ct. 409, 4 L.Ed.2d 363, rehearing denied, 361 U.S. 973, 80 S.Ct. 597, 4 L.Ed.2d ......
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    ...did not derive "from an actual vesting of authority by the state." Id., at 31. Similarly distinguishable is Spampinato v. M. Breger & Co., 270 F.2d 46 (2d Cir. 1959), cert. denied, 361 U.S. 944, 80 S.Ct. 409, 4 L.Ed.2d 363 (1960), which concluded without discussion that state action was lac......
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    • U.S. Court of Appeals — Second Circuit
    • 28 Diciembre 1966
    ...he could still be "held liable if he conspired to deprive the plaintiff of the equal protection of the laws. Spampinato v. M. Breger & Co., 270 F.2d 46, 49 (2d Cir. 1959), cert. denied, 361 U.S. 944, 80 S.Ct. 409, 4 L.Ed.2d 363 (1960); see Collins v. Hardyman, 341 U.S. 651, 661-662, 71 S. C......
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