Birnbaum v. Trussell
Citation | 347 F.2d 86 |
Decision Date | 17 June 1965 |
Docket Number | No. 472,Docket 29228.,472 |
Parties | Morton BIRNBAUM, Plaintiff-Appellant, v. Ray E. TRUSSELL, Commissioner of the Department of Hospitals of the City of New York, Robert J. Mangum, First Deputy Commissioner of the Department of Hospitals of the City of New York, and William Lewis, President, Local 237, International Brotherhood of Teamsters, Defendants-Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Paul J. Clifford, Westbury, N. Y., for appellant.
Seymour B. Quel, Maurice Nadler, New York City (Leo A. Larkin, Corp. Counsel, New York City, and Benjamin Offner, New York City, of counsel), for appellees Trussell and Mangum.
Robert Nelson Shiverts, New York City (Louis E. Yavner, New York City, on the brief), for appellee Lewis.
Before MOORE, SMITH and HAYS, Circuit Judges.
This appeal questions the propriety of the district court's dismissal "for lack of jurisdiction" of a complaint seeking damages for violations of the Civil Rights Act of 1871.1 We reverse and remand with instructions that the complaint be dismissed for failure to state a claim upon which relief can be granted, with leave to amend.
Dr. Birnbaum claims that he was "deprived of his property rights in violation of his legal rights under the XIVth Amendment to the United States Constitution," and demands $25,000 in damages plus costs.
Defendants Trussell and Mangum answered the complaint specifically denying all allegations except that the services of Dr. Birnbaum, "as a per session physician" in the department, "were terminated upon the completion of plaintiffs' sic services on May 13, 1963," and that the department is maintained pursuant to the city charter and financed by city, state and federal funds. Defendant Lewis entered a general denial.
The defendants moved to dismiss the complaint for lack of jurisdiction over the defendants, for failure to state a claim upon which relief could be granted, and on the ground that there is no genuine issue as to any material fact. The three defendants filed brief supporting affidavits. Commissioner Trussell's affidavit states that he was in Europe at the time plaintiff was dismissed, that First Deputy Commissioner Mangum assumed the duties of Acting Commissioner with full powers during his absence and that he (Trussell) did not participate in this particular proceeding. First Deputy Commissioner Mangum states in his affidavit that he as Acting Commissioner "advised the plaintiff that his services as a per session physician were no longer required," and that he did not conspire with defendant Lewis or others to dismiss the plaintiff. Lewis's affidavit states that he is not a public official, that he "never in any way asked, demanded, suggested or intimated to the co-defendants, Trussell and Mangum, that the plaintiff be dismissed from his position" and that he never conspired to cause plaintiff's dismissal.
Plaintiff filed a thirty-three page affidavit, with nine exhibits attached, in which he relates in detail four episodes involving controversies with Negro employees of the Coney Island Hospital at which he was employed.
The district court erred in granting the motion to dismiss for "lack of jurisdiction."
As we read the complaint it alleges that the defendants, under color of state law, deprived the plaintiff of his rights under the Fourteenth Amendment, in violation of Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983 (1958),3 and conspired to deprive him of equal protection of the laws in violation of Rev.Stat. § 1980(3) (1875), 42 U.S.C. § 1985(3) (1958).4 A showing that defendants acted "within the scope of their employment and authority" is not sufficient to defeat the district court's jurisdiction. It would nullify the whole purpose of the civil rights statutes to permit all governmental officers to resort to the doctrine of official immunity. The statutory condition of defendant's acting "under color" of state or territorial law contemplates that he act in an official capacity. To the extent that state or municipal officers, such as the defendants Trussell and Mangum, violate or conspire to violate constitutional and federal rights, the Civil Rights Laws, §§ 1979 and 1980(3), 42 U.S.C. §§ 1983 and 1985(3), abrogate the doctrine of official immunity. See The Doctrine of Official Immunity Under the Civil Rights Acts, 68 Harv.L.Rev. 1229 (1955).
The district court also dismissed the complaint as against defendant Lewis on the ground that Lewis is not a state officer, and, therefore, could not have acted under color of state law, a requisite allegation under § 1979. However, the complaint also purports to state a claim of violation of § 1980(3), 42 U.S.C. § 1985(3), for which Lewis, even though he is not a state officer, may 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.Ct. 937, 95 L.Ed. 1253 (1951).
While we reject, then, the conclusion that the district court did not have jurisdiction over the defendants, we hold that the complaint must nevertheless be dismissed for failure adequately to state a cause of action under either § 1979 or § 1980(3), 42 U.S.C. §§ 1983, 1985(3). In Powell v. Workmen's Compensation Bd., 327 F.2d 131, 133 (2d Cir. 1964), this court dismissed a complaint invoking these same sections, alleging that the defendant board, the plaintiff's employer, and an insurance carrier conspired to deprive him of the equal protection of the laws "by means of unlawful and dilatory tactics designed to hinder the processing of plaintiff's * * claim for workmen's compensation." We there stated:
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