Bergman v. Stein

• Decision Date: 19 November 1975
• Docket Number: No. 75 Civ. 119.,75 Civ. 119.
• Citation: 404 F. Supp. 287
• Parties: Bernard BERGMAN, Plaintiff, v. Andrew STEIN et al., Defendants.
• Court: U.S. District Court — Southern District of New York

404 F. Supp. 287

Bernard BERGMAN, Plaintiff, v. Andrew STEIN et al., Defendants.

No. 75 Civ. 119.

United States District Court, S. D. New York.

November 19, 1975.

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Thal & Youtt by Steven H. Thal, New York City, Miller, Cassidy, Larroca & Lewin by Nathan Lewin, Washington, D. C., for plaintiff.

Louis J. Lefkowitz, Atty. Gen. of State of N. Y., George D. Zuckerman and Lloyd G. Milliken, Asst. Attys. Gen., for Stein and Cabin.

Floyd Abrams, Eugene R. Scheiman, Cahill, Gordon & Reindel, New York City, for John L. Hess.

MEMORANDUM

STEWART, District Judge:

An action is brought by plaintiff, Bernard Bergman, against Andrew Stein, a member of the New York State Assembly and then Chairman of the Temporary State Commission on Living Costs and the Economy (the "Temporary Commission"), William D. Cabin, then Assistant New York State Welfare Inspector General, and John Hess, a reporter employed by The New York Times. Bergman alleges that defendants conspired together to inflame public opinion against him so as to force public officials to proceed against him in civil and criminal actions and to prejudice future jurors and judges who might hear his case. Bergman claims that the actions of defendants violated his First, Fourth, Fifth, Sixth, and Fourteenth Amendment Rights and are thus actionable under 42 U.S.C. §§ 1983 and 1985. Invoking the court's jurisdiction under 28 U. S.C. §§ 1331 and 1343, plaintiff seeks permanent injunctive relief restraining defendants from unreasonable interference with his civil rights, a declaratory judgment of his rights, compensatory damages of $500,000.00 and punitive damages of $500,000.00, as well as costs and attorneys fees. A request for preliminary injunctive relief was withdrawn shortly after the complaint was filed.

Defendants have all moved to dismiss the complaint under Rules 12(b) (1) and 12(b)(6) of the Federal Rules of Civil Procedure; plaintiff's motion for expedited discovery was opposed by defendant Hess, who sought to stay discovery pending the disposition of this motion to dismiss. Discovery was stayed on February 6, 1975.

Bernard Bergman owns and operates nursing homes in New York. During the course of investigations by the press and by legislative bodies into the conditions of housing and care for the elderly, Bergman's activities came under public scrutiny. His name featured prominently in a series of articles, written by defendant Hess, which appeared in The New York Times, commencing in August of 1974. Bergman's activities were also the subject of investigations by the Temporary Commission¹ chaired by defendant Stein and by defendant Cabin² of the Office of the State Welfare Inspector General. Much public attention was focused upon what has been described as the

"... intolerable abuse of service, massive profiteering, administrative inadequacy, legislative deficiency and political impropriety . . ."

which permeates the nursing-home industry.³ The Temporary Commission issued its "Report on Nursing Homes and Health Related Facilities in New York State" in April of 1975. New York State investigations continued under Charles Hynes, a special prosecutor, and Morris Abrams, Chairman of the Moreland Commission on Nursing Homes. Federal investigations of nursing home conditions are also on-going.

On August 5, 1975, Bergman and others were indicted in the United States District Court for the Southern District of New York and in the Supreme Court for New York County on charges of income tax fraud, filing false statements, and conspiracy. Bergman pleaded not guilty later that month. The federal prosecution has been stayed pending the termination of the state proceedings. A trial in state court is to begin in December of 1975. The media coverage of the above-described events has frequently highlighted Bergman's involvement with practices of nursing-home operations which have been criticized.⁴

Bergman contends that defendants Stein and Cabin, acting under color of state law, conspired with defendant Hess, as well as with other unknown individuals, to initiate much of the federal and state investigations of him, to secure his indictment and to destroy his business and his personal reputation. Bergman alleges that Stein usurped the lawful function of the Temporary Commission and used it as the vehicle for harassment of Bergman and for the personal gain of Stein, that Cabin joined Stein by illegally using the Welfare Inspector General's Office to focus attention on Bergman, and that together they leaked confidential information to the press. Bergman contends that the resulting "barrage of unfair, inaccurate, maliciously false and prejudicial reports" Complaint, ¶ 9(c) led to his being singled out for public scorn and to the "stampeding" of law enforcement officials to bring criminal charges against him. Plaintiff further alleges that the conspiracy of the defendants, which purportedly caused the massive publicity, has

1) led many, who would normally associate with him, including attorneys and elected officials, to refrain from doing so, thus depriving him of his right of free association, his right to petition government, and his right to counsel,

2) has denied him of his right to an impartial review of the facts by judges and jurors,

3) has deprived him of his right to practice the business of his choice,

4) has deprived him of his right to privacy, and

5) has subjected him to unreasonable searches and seizures.

The first matter which the court must consider in deciding the present motion to dismiss is whether its jurisdiction has been properly invoked. Defendants first contend that plaintiff has failed to meet the Article III requirement of the existence of a case or controversy because the harm alleged by the plaintiff is only speculative and conjectural. Relying upon the Supreme Court's recent discussion of the need for a plaintiff to show direct and real injury in O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L. Ed.2d 674 (1974), defendants contend that plaintiff has not demonstrated that personal injury has occurred. See also Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

In O'Shea v. Littleton, nineteen plaintiffs had alleged that law enforcement officials of Alexander County, Illinois engaged in selective and racially discriminatory enforcement of criminal laws. The Court held that plaintiffs had failed to show that they had sustained direct injury but rather had complained of generalized illegal conduct in the past and of potentially illegal conduct in the future. In contrast, here Bergman's complaint alleges that he himself was the target of unlawful acts which have lead to deprivations of his constitutional rights; he offers details as to what those acts were See e. g. Complaint ¶¶ 10, 11, 20, and what specific injuries flowed; finally, he has been indicted by both federal and state officials; the argument that his injury is only "conjectural" cannot be maintained.

Although some of Bergman's complaint states claims sufficiently ripe to adjudicate, plaintiff's allegations concerning the deprivation of his right to a fair trial cannot be heard for they do fall within the realm of speculative injury which the court may not consider. While a claim may be heard under 42 U.S.C. § 1983 seeking damages for denial of civil rights on the grounds that inflammatory statements or actions by an individual prejudiced the claimant's right to a fair trial, See e. g., Rosenberg v. Martin, 478 F.2d 520 (2d Cir. 1973), cert. denied, 414 U.S. 872, 94 S. Ct. 102, 38 L.Ed.2d 90 (1973), it is incumbent upon such a claimant to show that the § 1983 defendant did in fact impinge upon the trial so as to work prejudice. Rosenberg v. Martin, 478 F. 2d at 525. Here, Bergman alleges that the publicity generated by defendants will cause judge and jurors to be prejudiced. However, Bergman has not yet been tried; there can be no evidence of adverse effect of publicity on a trial, nor is there any reason to presume that any future trial will not comport with the constitutional requirements of fairness.

If and when plaintiff objects to the setting in which he is tried, or to the conduct of parties which affect such trial, he may raise objections with the trial court and, if necessary, on appeal or by writ of habeas corpus. See, e. g. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966) and Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).⁵ It is well established that the responsibility for the conduct of a trial lies with the trial judge. Measures to preserve fair trials, despite the evocative publicity which frequently surrounds events of great public interest, have often been detailed. A judge may screen jurors to determine the potential prejudicial effect of publicity and may postpone trial to permit sufficient time to elapse so that the impact of publicity may diminish. See, e. g. United States v. Pfingst, 477 F.2d 177 (2d Cir. 1973), cert. denied, 412 U. S. 941, 93 S.Ct. 2779, 37 L.Ed.2d 400 (1973). A request for a change of venue may also be made. See New York Criminal Procedure Law § 230.20.

Therefore, plaintiff's claims as to a deprivation of his right to a fair trial are dismissed as too speculative for adjudication. Further, to the extent plaintiff attempts to hold defendants liable for allegedly discriminatory enforcement of the laws, such claims are also dismissed. None of the defendants here, a legislator, an official in the Office of Welfare Inspector General and a reporter, have the power to bring indictments or to enforce the laws. While allegations of discrimination in prosecution can be heard both as affirmative challenges under 42 U.S.C. § 1983 See, e. g. Shaw v. Garrison, 467 F.2d 113 (5th Cir. 1971) cert. denied, 409 U.S. 1024, 93 S.Ct. 467, 34 L.Ed.2d 317 (1972) and as defenses to criminal prosecutions See, e. g. Snowden v. Hughes, 321 U.S. 1, ...