499 F.2d 761 (2nd Cir. 1974), 202, Perez v. Sugarman

Docket Nº:202, 73-1790.
Citation:499 F.2d 761
Party Name:Paulina PEREZ et al., Plaintiffs-Appellants, v. Jule M. SUGARMAN et al., Defendants, and New York Foundling Hospital and St. Joseph's Home of Peekskill, Defendants-Appellees.
Case Date:June 07, 1974
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 761

499 F.2d 761 (2nd Cir. 1974)

Paulina PEREZ et al., Plaintiffs-Appellants,


Jule M. SUGARMAN et al., Defendants, and New York Foundling Hospital and St. Joseph's Home of Peekskill, Defendants-Appellees.

No. 202, 73-1790.

United States Court of Appeals, Second Circuit.

June 7, 1974

Argued Dec. 3, 1974.

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Lisa H. Blitman, George C. Stewart, Napoleon B. Williams, New York City, for plaintiffs-appellants.

Frederick J. Magovern, Bodell, Gross & Magovern, New York City, for defendants-appellees.

Before WATERMAN and FEINBERG, Circuit Judges, and GURFEIN, District Judge. [*]

WATERMAN, Circuit Judge:

This is a civil rights suit brought under 42 U.S.C. § 1983 against four individual defendants, all of whom

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are employed by the municipality of New York City, and two private child-caring institutions, New York Foundling Hospital and St. Joseph's Home for Children. The complaint alleges deprivations of the constitutional rights to due process and equal protection of the laws as guaranteed by the Fourteenth Amendment. In the district court below the two institutional defendants moved to dismiss the complaint as against them on the grounds, inter alia, that the court lacked subject matter jurisdiction and that the complaint failed to state a claim upon which relief could be granted. The district court, Metzner, J., apparently assuming arguendo that subject matter jurisdiction existed, first dismissed the complaint, but only to the extent that it was based on alleged denials of equal protection, against the institutional defendants upon the ground that it failed to state a claim upon which relief could be granted. Judge Metzner then dismissed the entire complaint against the private institutions for lack of subject matter jurisdiction. We do not disturb the district court's dismissal of the complaint insofar as the complaint alleges equal protection violations. 1 We hold, however, that the lower court had subject matter jurisdiction and, accordingly, we reverse the district court's dismissal for lack of subject matter jurisdiction and order the complaint reinstated against the defendants-appellees herein except to the extent that it rests on alleged denials of equal protection.

The gravamen of the complaint is an alleged unlawful and unconstitutional detention of appellant 2 Perez's children. Although the allegations are unclear at some points in describing what specific acts were performed by which particular defendants, the complaint does disclose the general sequence of events concerning which the plaintiff complains. In late December 1969, plaintiff-appellant suddenly became ill and was transported to a hospital by ambulance. During the period of her hospitalization appellant's children came into the custody of New York City child welfare officials. The children were subsequently placed by the city with the two private institutional defendants herein. Following her release from the hospital appellant began to request the return of her children, but the defendants refused to surrender custody.

The complaint states that it was not until March of 1972 that the defendant city officials made any attempt to obtain a court order to attest to the validity of their detention of appellant's children. Even then, the neglect proceeding filed by the city in the Family Court was apparently instituted only in response to a petition filed by appellant in New York Supreme Court for a writ of habeas corpus, in which she sought return of her children. In short, appellant's complaint alleges that these children were removed by the city and then detained by the defendant institutions for well over two years without the parent's consent or without benefit of either a court order protecting the detention or benefit of a hearing of any kind whatsoever. The complaint also alleges that the institutional defendants were cognizant of the fact that there had been no hearing and that there had been neither a court order authorizing institutional custody nor consent of the parent agreeing to it. 3

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42 U.S.C. § 1983, the provision of law upon which this lawsuit is predicated, is apposite only when the person against whom the provision is invoked has acted 'under color of' law. It is well-established that this jurisdictional prerequisite is congruent to the 'state action' concept. United States v. Price, 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); United States v. Wiseman, 445 F.2d 792, 794 (2 Cir.), cert. denied, 404 U.S. 967, 92 S.Ct. 346, 30 LEd.2d 287 (1971). 4 In this case the appellee institutions, concededly private in...

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