Herrmann v. Moore
| Decision Date | 10 May 1978 |
| Docket Number | D,No. 646,646 |
| Parties | 17 Fair Empl.Prac.Cas. 1523, 16 Empl. Prac. Dec. P 8313 William S. HERRMANN, Plaintiff-Appellant, v. Leonard P. MOORE, Abraham M. Lindenbaum, Paul Windels, Willard G. Hampton, Wilbur A. Levin, Michael Charles O'Brien, Jerome Prince, Hollis K. Thayer, M. Henry Martuscello, Edward Thompson, Cecily Selby, John Doar, Michael P. Shumaecker, Eric Nelson, Brooklyn Law School, Raymond E. Lisle, Gerard A. Gilbride, Milton Gabriel Gershenson, Joseph Crea, Samuel Hoffman, John J. Meehan, Philip K. Yonge, Richard T. Farrell, Martin R. Hauptman, Jerome M. Leitner, David G. Trager, Henry Mark Holzer, Oscar Chase, Brian E. Comerford, Richard Allan, Margaret A. Berger, George W. Johnson, Susan M. Brandt, Deborah H. Schenk, Paul Sherman, Gary A. Schultze, Dusan Djonovich, Steven S. Elbaum and S. Hal Mercer IV, Defendants-Appellees. ocket 77-6184. |
| Court | U.S. Court of Appeals — Second Circuit |
John F. Martin, of Martin & Wiggins, New York City, for appellant.
Eugene R. Scheiman, Frank W. Krogh, Thomas R. Jones, of Cahill Gordon & Reindel, New York City, for appellees.
Before OAKES, Circuit Judge, NEAHER, District Judge, * and WYZANSKI, Senior District Judge. **
Plaintiff appeals from the District Court's summary judgment dismissing his claim on the merits. 1
Plaintiff, William S. Herrmann was a tenured professor at defendant Brooklyn Law School until the school dismissed him on September 17, 1975. Plaintiff's confusing complaint names as defendants Brooklyn Law School and 38 individuals, including the dean of the school, some of its trustees, and some of its faculty. Plaintiff alleges that he is a citizen of Connecticut and all defendants are citizens of New York, and that the District Court has jurisdiction under 28 U.S.C. §§ 1331, 1332, and 1343. As we read the complaint 2 it alleges violations of 42 U.S.C. §§ 1983, 1985(2) clause 1, 1985(2) clause 2, and 1985(3), as well as violations of the law of New York. Plaintiff prayed that the Court should direct Brooklyn Law School to restore him to his position as a tenured law professor, that the Court should declare invalid the school's resolution removing him from office, and that he recover two million dollars in damages.
After receiving all the material the parties chose to submit, the District Court on October 19, 1977 filed a memorandum opinion and entered judgment for defendants.
In his brief in this court plaintiff limits the questions presented to his claims under 42 U.S.C. §§ 1983, 1985(2) and 1985(3). We, therefore, rule that he has abandoned any claims which do not involve alleged violations of those statutes. Any claims which rest on local law and fall within the diversity jurisdiction statute, 28 U.S.C. § 1332, are not before us.
It will be most convenient if we take the claims in the following order: (1) 42 U.S.C. § 1983, (2) 42 U.S.C. § 1985(3), (3) 42 U.S.C. § 1985(2) claim 2, and (4) 42 U.S.C. § 1985(2) claim 1.
42 U.S.C. § 1983 provides that:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
It is well-settled that in order to establish a claim based on 42 U.S.C. § 1983, plaintiff must prove that at least one of the defendants acted under color of state law. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2nd Cir. 1973).
In paragraphs 16, 17 and 18 of the complaint plaintiff in effect alleges that defendants conspired with Edward Thompson, the Administrative Judge of the Civil Court of the City of New York who, under color of state law, subjected him to the deprivation of his civil rights under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States.
To meet his burden of proving that Thompson, acting under color of office, subjected him to a deprivation of his Constitutional rights, plaintiff offered evidence to the following effect:
(1) April 2, 1973, in the Civil Court of the City of New York plaintiff brought an action for slander against his colleague Professor Crea. Professor Crea filed a counterclaim. The case came before Judge Kleiger.
(2) Judge Edward Thompson, a defendant in the case at bar, was both Deputy Administrative Judge of the Civil Court of The City of New York and a trustee of the Brooklyn Law School. Judge Thompson is the supervisor of Judge Kleiger, but the scope of Judge Thompson's authority as Deputy Administrative Judge is not described.
(3) On October 1, 1973 on the stationery of the Brooklyn Law School, Raymond E. Lisle, the Dean of the School, notified Professors Crea and Herrmann that Justice Thompson
(4) Plaintiff went to Judge Thompson's office on October 2, 1973, but Judge Thompson told plaintiff that this was the wrong day and to return October 4. Judge Thompson, then, had his chauffeur drive plaintiff back to the law school.
(5) October 4 plaintiff was ill and telephoned the dean's secretary, Ms. Dolores Kuebler, so to advise Judge Thompson. Shortly thereafter plaintiff received a telephone call from Ms. Kuebler "advising him that he was ordered to telephone Judge Thompson at once."
(6) Plaintiff telephoned Judge Thompson and had a conversation with him during which Judge Thompson said "Judge Kleiger, Professor Crea and Mr. Falzone (Crea's lawyer) are here with me what's wrong with you?" Plaintiff said he was ill. Judge Thompson then said, "I want a withdrawal of your action from you and I want it right now; I have news for you, your case is going nowhere, I have spoken to Judge Kleiger and all the judges in Brooklyn know or will know about this case and you are going to lose it; the Board of Trustees (of Brooklyn Law School) are tired of your nonsense in bringing this action and they want it withdrawn and I am ordering you to withdraw it today." Judge Thompson then ordered defendant to appear in Judge Kleiger's chambers in Brooklyn at a later date.
(7) Plaintiff thereafter appeared in Judge Kleiger's chambers. That judge said
(8) However, plaintiff did not drop his suit.
(9) October 8, 1976 Judge Dematteo, who had replaced Judge Kleiger, granted plaintiff's motion for summary judgment dismissing the counter-claim. The case is still pending in the Civil Court and has been placed on the trial calendar by plaintiff.
The foregoing evidence indicates that in most of his actions connected with the case of Herrmann v. Crea, Thompson was acting in his capacity as a trustee of Brooklyn Law School, and not in his capacity as a state court judge. But there are ambiguities. When Dean Lisle ordered plaintiff to get in touch with Thompson, it is arguable that Thompson was selected not merely because he was a trustee but also because he was Deputy Administrative Judge of the court in which plaintiff had brought suit against Professor Crea. Moreover, it is plausible to contend that it was in his role as Deputy Administrative Judge that Thompson said, if plaintiff quotes him correctly, that, "I have spoken to Judge Kleiger and all the judges in Brooklyn know or will know about this case and you are going to lose it." So we cannot say that there is not a genuine dispute between plaintiff and defendants as to whether Thompson sometimes acted under color of his office as Deputy Administrative Judge in connection with Herrmann v. Crea.
However, there is no genuine dispute between plaintiff and defendant that Thompson did not adversely affect that suit. After Thompson's intervention, the case was transferred to Judge Dematteo who granted plaintiff's motion to dismiss defendant's counterclaim, and thereafter placed the case on the trial calendar, where it still is pending. Thus, plaintiff has failed to show, as is required by 42 U.S.C. § 1983 that under color of law he actually 3 "subjected" plaintiff to the "deprivation" of any Constitutional rights. 4
We do not need to consider in connection with 42 U.S.C. § 1983 what Thompson did as a trustee in discharging plaintiff, because indisputably Thompson was then acting in a private capacity and not under color of state office.
Hence we agree with the District Judge's conclusion that with respect to plaintiff's claim based on 42 U.S.C. § 1983 defendants were entitled to summary judgment. 5
Despite the breadth of the language, the Supreme Court in Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338, held that in order to maintain an action under § 1985(3) "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action."
To meet the requirement enunciated in Griffin, paragraph 16 of the complaint alleges that "the defendants conspired . . . to interfere with . . . his work on behalf of advancing the opportunities and...
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