Child v. Beame

• Decision Date: 13 August 1976
• Docket Number: No. 75 Civ. 336.,75 Civ. 336.
• Citation: 417 F. Supp. 1023
• Parties: George and Larry "CHILD" et al., Plaintiffs, v. Abraham BEAME, Individually and as Mayor of the City of New York, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

417 F. Supp. 1023

George and Larry "CHILD" et al., Plaintiffs, v. Abraham BEAME, Individually and as Mayor of the City of New York, et al., Defendants.

No. 75 Civ. 336.

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

August 13, 1976.

Marcia Robinson Lowry, Children's Rights Project, New York Civil Liberties Union, New York City, for plaintiffs.

Kenneth Harfenist, New York City, for defendant Paul.

Davis, Polk & Wardwell, New York City, for or of counsel to defendants Francine, Barlow, Matthews, O'Neill, White, McCormack, Foster, Gaynor, Breen, Chillion, Howard, James, Chrysostom, Fogarty, Rutnik, McMahon, Trager, Meaney, Olivia, Harris and John; Thomas J. Aquilino, Jr., New York City, of counsel.

Cullen & Dykman, Brooklyn, N. Y., for defendant Lyman; Hugh M. Turk, Brooklyn, N. Y., of counsel.

Feder, Kaszovitz & Weber, New York City, for defendant Kaufman; Marcel Weber, New York City, of counsel.

Frederick H. Block and Michael Weiner, New York City, for defendant Zucker; Frederick H. Block, New York City, of counsel.

Emmet, Marvin & Martin, New York City, for defendant Coates; Lawrence B. Thompson, New York City, of counsel.

Bodell & Magovern, P. C., New York City, for defendants Bennington, Trobe, Kelly, Morrison, DeMartino, Hawthorne, Snow, Sheridan, Paul and Quinn; David H. Berman, New York City, of counsel.

David W. Plant, Jesse J. Jenner, New York City, for defendant Kane; Jesse J. Jenner, New York City, of counsel.

Robinson, Silverman, Pearce, Aronsohn, Sand & Berman, New York City, for defendant Goldsmith; Floran L. Fink, New York City, of counsel.

Humes, Andrews, Botzow & Wagner, New York City, for defendants Gaskill and Winterrowd; Justin E. Hoy, Jr., New York City, of counsel.

Seward & Kissel, New York City, for defendant Ross; Margaret DuB. Avery, New York City, of counsel.

Satterlee & Stephens, New York City, for defendant Gutheil; John T. Schmidt, New York City, of counsel.

Donovan, Leisure, Newton & Irvine, New York City, for defendant Pancost; J. Peter Coll, Jr., New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

This action was originally commenced by five children between the ages of 11 and 14 who, suing on their own behalf and on behalf of all others similarly situated, charged State and City officials, and the directors and administrators of virtually every Catholic, Protestant, Jewish and nonsectarian child-care facility in the Greater New York Metropolitan Area with violations of plaintiffs' constitutional and statutory rights. The essence of the claim was that the defendants deliberately engaged in the practice of keeping plaintiffs and members of their class in temporary foster care settings for their entire childhoods by failing vigorously to seek out available adoptive parents for them. The relief sought was a declaratory judgment and injunction against the alleged practice and compensatory and punitive damages against the defendants. This Court dismissed all claims except the constitutional claim brought on behalf of the alleged subclass of non-white children alleging denial of their right to equal protection of the laws and the statutory claim under § 2000d of sub-chapter V of the Civil Rights Act.¹

Thereafter, this Court denied a motion for class action certification previously made by the five named plaintiffs, who are non-white and who are in the care of defendant Abbott House. Virtually all the child-care agency defendants (other than Abbott House) then moved to dismiss the five plaintiffs' amended complaint pursuant to Rule 12(b)(6) of the Fed.R.Civ.Pro. for failure to state a claim.

Upon the face of the complaint, it appears that the plaintiffs' claims necessarily are predicated upon the alleged acts and conduct of the defendant Abbott House and that since these plaintiffs are strangers to and have never been under the care or supervision of the movant-defendants, the defendants' motions should be granted. However, plaintiffs' attorney, seeking to avoid dismissal, argues that Abbott House's actions were "necessarily affected and reinforced" by the actions and policies of the movants, even though the latter had no direct relationship or contact with the five plaintiffs. Further, it is urged that all defendants participated in meetings and conferences at which discriminatory policies were adopted and that all defendants engaged in a common practice of carrying out these policies. Accordingly, it is contended that such actions by defendants other than Abbott House are sufficiently related to the alleged denial of plaintiffs' constitutional and statutory rights so as to require denial of the motion to dismiss the complaint.

Were we to accept these attenuated theories of causation and conspiracy, plaintiffs would in effect be allowed to pursue the class action already denied them. Whether plaintiffs' opposition to the motions to dismiss seeks to circumvent our previous denial of class action certification, however, is not important to our decision. Rather, we are required to grant the motions because the amended complaint, however liberally read, does not assert the existence of a conspiracy and fails to allege, as indeed it cannot, that the movants have been personally and directly involved in any denial of the plaintiffs' rights.

The amended complaint contains no specific allegations of any direct contacts between the movants and the plaintiffs. When a defendant is merely named in the caption...