Cave v. Beame

• Decision Date: 01 June 1977
• Docket Number: No. 77-C-2.,77-C-2.
• Citation: 433 F. Supp. 172
• Parties: Vernal G. CAVE, M.D., F.A.C.P., individually and as Chairman of the Black Community Council of Crown Heights, Ruth G. Goring, Lionel L. Daniels, Father Edmund P. O'Brien, Rev. Dr. Benjamin J. Lowery, and Ethlene D. Dubin, Plaintiffs, v. Abraham D. BEAME, as Mayor of the City of New York, and as a Member of the Board of Estimate of the City of New York, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

433 F. Supp. 172

Vernal G. CAVE, M.D., F.A.C.P., individually and as Chairman of the Black Community Council of Crown Heights, Ruth G. Goring, Lionel L. Daniels, Father Edmund P. O'Brien, Rev. Dr. Benjamin J. Lowery, and Ethlene D. Dubin, Plaintiffs, v. Abraham D. BEAME, as Mayor of the City of New York, and as a Member of the Board of Estimate of the City of New York, et al., Defendants.

No. 77-C-2.

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

June 1, 1977.

Walker & Bailey, New York City, for plaintiffs.

W. Bernard Richland, Corp. Counsel, New York City, for City defendants; Mary Ann DeCarolis, Michael Cecere, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., New York City, for State defendants; Arnold Fleisher, New York City, of counsel.

David G. Trager, U.S. Atty., E. D. N. Y., Brooklyn, N.Y., for U.S. defendants; David W. McMorrow, Cyril Hyman, New York City, of counsel.

COSTANTINO, District Judge.

On December 23, 1976 the Board of Estimate of the City of New York voted in favor of dividing the section of Brooklyn traditionally known as Crown Heights into two separate community districts (hereinafter CDs). Plaintiffs, who are residents of Crown Heights, seek to have the decision of the New York City Board of Estimate declared null and void. They essentially allege that the state and federal defendants have dispensed public funds in a discriminatory manner, and that the city defendants have purposefully acted to deprive plaintiffs of their constitutional right to equal protection and due process. Complaint ¶ 29-34.

Division of the city into community planning districts is based upon a 1975 revision to the New York City Charter which sought

to encourage and facilitate coterminous community districts and service districts to be used for the planning of community life within the city, the participation of citizens in city government within their communities, and the efficient and effective organization of agencies that deliver municipal services in local communities and boroughs.

New York City Charter Chapter 69 § 2700 (as amended 1975).

The charter revision directed that the Mayor, after consultation with community groups, present a preliminary community district plan to the Board of Estimate for its approval. In accordance with this provision the Mayor submitted to the Board of Estimate a plan which provided for a single CD for the entire Crown Heights area.¹ At Board of Estimate meetings, certain Hasidic members of the community presented an alternate proposal—apparently designed to increase their ability to participate in community decisions—to separate the Crown Heights area into two CDs by dividing it along Eastern Parkway into a northern CD and a southern CD. On December 23, 1976, the Board adopted the alternate plan, thus dividing the area into two CDs.

Plaintiffs allege that the division of the Crown Heights area violates the Fifth and Fourteenth Amendments of the United States Constitution, and that it contravenes the intent and purpose of the Revised City Charter of 1975. On January 6, 1977 plaintiffs' motion for a preliminary injunction, which would have enjoined the Board's action was denied.

Defendants have moved to dismiss the action both on jurisdictional grounds as well as for failure to state a claim upon which relief can be granted. Rule 12(b)(6), Fed.R. Civ.P. Since the court has referred to matters outside the pleadings, the parties were directed to submit statements pursuant to Rule 9(g) of the Local Rules of this court, and the 12(b)(6) motion shall be treated as a motion for summary judgment.

I. Jurisdiction

Plaintiffs contend that federal jurisdiction is founded in 28 U.S.C. §§ 1331(a), 1343(3), 1343(4) and 1361. Since these statutes vary in their application to the federal state and city defendants, each group of defendants must be discussed separately.

A. The Federal Defendants

Jurisdiction over federal officers cannot be predicated upon 42 U.S.C. § 1983, and its jurisdictional counterpart 28 U.S.C. § 1343(3), since § 1983 applies only to parties acting under color of state law. Federal officers do not act under color of state law. Wheeldin v. Wheeler, 373 U.S. 647, 650, n. 2, 652, 83 S.Ct. 1441, 10 L.Ed.2d 605 (1963); Bivens v. Six Unknown Named Agents, 456 F.2d 1339, 1343 (2d Cir. 1972); LaRouche v. City of New York, 369 F.Supp. 565, 567 (S.D.N.Y.1974); Ramirez v. Weinberger, 363 F.Supp. 105, 108 (N.D.Ill. 1973), aff'd 415 U.S. 970, 94 S.Ct. 1553, 39 L.Ed.2d 867 (1974). Nor can jurisdiction over the federal defendants be founded upon 28 U.S.C. § 1343, which provides that the "district courts shall have original jurisdiction of any civil action authorized by law . . to recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights." Assuming arguendo that a Title VI claim is supportable by plaintiffs' complaint, plaintiffs have failed to exhaust the administrative remedies which are a prerequisite to Title VI relief. Green Street Ass'n v. Daley, 373 F.2d 1, 8-9 (7th Cir.), cert. denied, 387 U.S. 932, 87 S.Ct. 2054, 18 L.Ed.2d 995 (1967); Feliciano v. Romney, 363 F.Supp. 656, 672 (S.D.N.Y.1973). Exhaustion of administrative remedies is required unless there is a clear showing that the administrative remedies are inadequate or futile. See Mendozo v. Lavine, 412 F.Supp. 1105 (S.D.N.Y.1976). As there has been no attempt to make any such showing in the present case, the requirement of exhaustion cannot be waived. A third possible basis for jurisdiction over the federal defendants is offered by the federal mandamus statute, 28 U.S.C. § 1361. Even if this court has threshold jurisdiction under the mandamus statute, it is clear that, in keeping with the standard established in Lovallo v. Froehlke, 468 F.2d 340 (2d Cir. 1972), cert. denied, 411 U.S. 918, 93 S.Ct. 1555, 36 L.Ed.2d 310 (1973) mandamus will not lie in this case. Before a writ of mandamus can issue three elements must co-exist: "(1) a clear right in the plaintiff to the relief sought (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question, and (3) no other adequate remedy available." Lovallo v. Froehlke, supra, at 343. While the district court properly has original jurisdiction over actions in the nature of mandamus, plaintiffs have failed to specify any "plainly defined and peremptory duty" which the federal defendants have failed to perform. Indeed, not only have the plaintiffs failed to delineate any unperformed duty owed to them by the federal defendants, but they have not demonstrated that the City, the ultimate recipient of the state and federal funding, has failed to perform a duty owed to them which might somehow be chargeable to the federal defendants. The plaintiffs claim that the geographic division of Crown Heights into community districts which do not coincide with the historic boundaries of the community is violative of the Revised New York City Charter, Ch. 69 § 2700, et seq. (Complaint ¶ 23, 25). The plain language of the New York City Charter, however, indicates that "each community district shall, so far as feasible, be within the boundaries of a single borough and coincide with the historic, geographic, and identifiable communities from which the city has developed." § 2701(b)(1) (emphasis added). Thus it is evident that there is no ministerial, nondiscretionary duty within the meaning of 28 U.S.C. § 1361 which any of the defendants have failed to perform. Mandamus, which would lie only as against the federal defendants, is wholly inappropriate and must therefore be denied.

The final possible basis for jurisdiction is found in 28 U.S.C. § 1331(a) which authorizes original federal jurisdiction over civil actions arising under the Constitution of the United States when the amount in controversy exceeds $10,000. The existence of a federal question in the present case arises from the fact that the plaintiffs have alleged a violation of substantive constitutional rights under the Fifth and Fourteenth Amendments. In addition, plaintiffs have alleged that the amount in controversy exceeds $10,000. (Complaint ¶ 4). The financial damage which the plaintiffs might sustain is not readily apparent. The budget which is allotted to a single community district is $45,000 per annum. The division of Crown Heights into a Northern and Southern community district results in a doubling of the yearly budget for the area. Thus, the community shall suffer a $45,000 increase in funding should the plaintiffs be defeated in their attempt to enjoin the division of the Crown Heights area (Tr. 67). In the broadest sense of 28 U.S.C. § 1331(a), however, and for purposes of the threshold jurisdictional issue, this court will assume that the possible financial damage to the plaintiff exceeds $10,000. Where the matter in issue is a right or interest which the plaintiff seeks to protect, precise financial valuation may be impractical or impossible. Cf. Save the Courthouse Committee v. Lynn, 408 F.Supp. 1323, 1331 (S.D.N.Y. 1975). In such situations the $10,000 jurisdictional prerequisite of § 1331(a) may be met by calculating the amount in controversy from the plaintiffs standpoint in terms of "`the value of the suit's intended benefit' or the value of the right being protected or the injury being averted." Kheel v. Port of N.Y. Authority, 457 F.2d 46, 49 (2d Cir.), cert. denied, 409 U.S. 983, 93 S.Ct. 324, 34 L.Ed.2d 248 (1972). See also Gomez v. Wilson, 155 U.S.App.D.C. 242, 477 F.2d 411, 419-420 (1973). In terms of this formulation, this court concludes that the threshold test for jurisdiction over the federal defendants under 28 U.S.C. § 1331(a) has been met.

B. State and City Defendants

Section 1343(4) of Title 28, U.S.C. does not provide this court with jurisdiction over the state and city defendants since that section requires exhaustion of administrative remedies, or a showing that such exhaustion...