Birnbaum v. Trussell, 87

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation371 F.2d 672
Docket NumberNo. 87,Docket 30300.,87
PartiesMorton 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.
Decision Date28 December 1966

Paul J. Clifford, and George D. Garofallou, New York City, for plaintiff-appellant.

J. Lee Rankin, Corporation Counsel of City of New York, Seymour B. Quel, and William A. Marks, New York, New York, for defendants-appellees Trussell and Mangum.

Louis E. Yavner, and Robert Nelson Shiverts, New York City, for defendant-appellee William Lewis, etc.

Before WATERMAN, HAYS and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

The appellant, Morton Birnbaum, a physician licensed to practice medicine in the State of New York, brought this action pro se on May 1, 1964 against the three defendants-appellees in the United States District Court for the Southern District of New York. He based jurisdiction on 42 U.S.C. § 1983 "and other sections of the Civil Rights Laws" and sought damages of $25,000 and costs. The defendant, Ray E. Trussell, was then Commissioner of the New York City Department of Hospitals, and the defendant, Robert J. Mangum, was his First Deputy Commissioner. William Lewis, the other defendant, was president of Local 237 of the International Brotherhood of Teamsters, a union which represented non-medical employees in the City's hospitals.

The complaint alleged in conclusory terms that the three defendants had conspired to have Dr. Birnbaum discharged from his position as a part-time attending physician at Coney Island Hospital, a municipal hospital in Brooklyn, New York, "because of his race" and that he "would not have been dismissed from his position if he were Negro instead of being white." The substance of the charge was that Lewis and other representatives of the union had falsely accused appellant of being anti-Negro and abusing Negro hospital personnel and had applied pressure to Trussell and Mangum until they discharged the appellant.

The defendants jointly moved to dismiss the complaint pursuant to Rule 12 (b) (6), Fed.R.Civ.P., for lack of jurisdiction and failure to state a claim upon which relief could be granted. The district court granted the motion. It concluded that the court lacked jurisdiction because Trussell and Mangum, as state officers, were immune from suit and because Lewis, not being a state official, was not under the prohibition of the statute. This court reversed the jurisdictional ground of dismissal1 but held that the complaint did not state a cause of action. The case was, therefore, remanded and the district court was instructed to dismiss the complaint with leave to amend.

The amended complaint sets forth in great detail the events leading to the dismissal of appellant from his position at Coney Island Hospital. It reiterates the charge that Dr. Birnbaum was a victim of racism and was dismissed because he was white, but adds the allegation that he was summarily discharged without a hearing, and that the appellees conspired to bring this about. It is alleged that Mangum, although he knew that Dr. Birnbaum was entitled to a hearing under state law,2 refused to give him a copy of the charges against him and fired him without a hearing. It is further alleged that, following this summary dismissal from the staff of the Coney Island Hospital, a letter was sent by Mangum to all other municipal hospitals instructing them not to place appellant on their staffs. On motion by appellees, the district court again dismissed the complaint, but this time on the ground that it failed to state a claim upon which relief could be granted.

Appellant seeks recovery under either Rev.Stat. Sec. 1979 (1875), 42 U.S.C. § 19833 or Rev.Stat. Sec. 1980(3) (1875), 42 U.S.C. § 1985(3) (1959).4 While we agree that the appellant does not satisfy the requirements of Sec. 1985(3), we reverse because we conclude that he has stated a good cause of action under Sec. 1983 on the facts alleged, which we summarize as follows:

Dr. Birnbaum, as a physician on the staff of Coney Island Hospital, was assigned to treat patients in the emergency room and admitting wards. While so employed he became involved in four troublesome incidents with Negro non-medical employees of the hospital. On October 22, 1962, he reprimanded a nurse's aide, who was a Negro, because she refused, when he requested it, to give up a chair in which she was sitting to a person who was faint. She complained to the union which immediately filed a grievance against the appellant, accusing him of prejudice against Negroes and asserting the proposition that nurse's aides were not required to obey the orders of physicians.

As the result of pressure by the union the appellant was forthwith discharged by the hospital supervisor but was shortly thereafter reinstated when it was pointed out to the supervisor that the doctor could not be removed without a hearing before the medical board. The hospital administrators advised him, however, that the union was publicly accusing him of anti-Negro bias and was continuing to press for the doctor's removal.

A few months later, when late at night the appellant needed to have an immediate X-ray taken of one of his patients, a Negro technician refused to take it because of the lateness of the hour. The appellant complained to the head of the radiology department, who ordered the technician to take the X-ray. A few days later, as a result of this complaint, the technician accosted and assaulted the appellant and charged him with being hostile to minority groups. Representatives of the union again accused Dr. Birnbaum of anti-Negro bias and asked for his removal.

Two other incidents arose a little later which involved a nurse's aide whom the appellant reproved, on the first occasion for being noisy and boisterous in a ward, and on the second for refusing to take a patient to the X-ray room. She asserted that she did not have to take orders from a physician.

The union again complained to the commissioner's office and the appellant was ordered by the hospital superintendent to appear for a hearing to be held before Mangum.5 The appellant requested a a copy of the charges, but was refused. He then retained counsel and, after further attempts to obtain a copy of the charges proved futile, he protested that he was entitled to a hearing before the medical board, and notified Mangum that he would not appear unless he was given a copy of the charges. Mangum then notified him that he was dismissed and followed this with a letter to all of the City's other hospitals with instructions not to put Dr. Birnbaum on their staffs. Following the appellant's dismissal, Lewis and the other union representatives let it be known that they had secured his removal and continued, as part of a campaign to increase the membership of the union, to accuse him of abusing Negroes.

Appellant's basic complaint is that the appellees conspired to discharge him without the hearing he was entitled to under state law. In addition to this, he contends that he was fired because he was white, rather than Negro.

It is on this second contention that the appellant claims that his complaint states a good cause of action under Sec. 1985(3), because he was deprived of equal protection of the law or equal privileges and immunities under the law. The facts alleged, however, do not substantiate his claim. It may very well be true that appellant would not have been discharged if he were a Negro. Nevertheless, the fact remains that other white doctors were not discharged. It is thus apparent that appellees cannot be charged with discriminating between whites and Negroes and discharging the former; nor does a simple showing of unequal application of the law make out a violation of Sec. 1985(3), even if it is malicious. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Hoffman v. Halden, 268 F.2d 280, 290 (9 Cir. 1949); Agnew v. City of Compton, 239 F.2d 226 (9 Cir. 1956); Burt v. City of New York, 156 F.2d 791, 792 (2 Cir. 1946).6

Although the facts alleged do not make out a good claim of deprivation of "equal protection of the laws, or of equal privileges and immunities under the laws" within Sec. 1985(3), they do present a cause of action for conspiracy to violate Sec. 1983. This circuit has never decided whether an action can be maintained for conspiracy to violate Sec. 1983. See Powell v. Workmen's Compensation Board, 327 F.2d 131, 136-137 (2 Cir. 1964) (expressly reserving decision on the point). The Ninth Circuit authorized such an action in Hoffman v. Halden, supra, thus making it possible for a private person to be held liable under Sec. 1983 for conspiring together with state officials to deprive persons of rights secured by that section. See also Lewis v. Brautigam, 227 F.2d 124, 55 A.L.R.2d 505 (5 Cir. 1955); Scolnick v. Winston, 219 F.Supp. 836, 842 (S.D.N.Y. 1963). But see Egan v. City of Aurora, 291 F.2d 706, 708 (7 Cir. 1961); Jennings v. Nester, 217 F.2d 153, 154 (7 Cir. 1954). There is no impediment to permitting such an action and to deny it would unnecessarily discriminate between those rights, on the one hand, which are protected by Sec. 1985, such as the right to equal protection of the laws and the other rights, privileges and immunities secured by the Constitution, and those rights, on the other hand, which are intended to be protected by Sec. 1983, which should be interpreted with sufficient liberality to fulfill its purpose of providing a federal remedy in a federal court in protection of a federal right. Monroe et al. v. Pape et al., 365 U.S. 167, 180, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Brazier v. Cherry, 293 F.2d 401, 404 (5 Cir. 196...

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