Jemzura v. Belden

• Decision Date: 16 February 1968
• Docket Number: Civ. A. No. 67-CV-347.
• Citation: 281 F. Supp. 200
• Parties: George JEMZURA, Plaintiff, v. Kathleen BELDEN, Joseph J. Benenati, Jr., David F. Lee, Jr., Edward J. Lee, Lynn N. Peterson and Joe Schapiro, Defendants.
• Court: U.S. District Court — Northern District of New York

281 F. Supp. 200

George JEMZURA, Plaintiff, v. Kathleen BELDEN, Joseph J. Benenati, Jr., David F. Lee, Jr., Edward J. Lee, Lynn N. Peterson and Joe Schapiro, Defendants.

Civ. A. No. 67-CV-347.

United States District Court N. D. New York.

February 16, 1968.

George Jemzura, pro se.

Lynn N. Peterson, Norwich, N. Y., for defendants Belden and Peterson.

James H. Haynes, Chenango County Atty., Norwich, N. Y., for defendant Benenati.

Joseph A. Romano, Asst. Atty. Gen., Albany, N. Y. (Louis J. Lefkowitz, Atty. Gen., Donald C. Glenn, Asst. Atty. Gen., and Grace K. Banoff, Assoc. Atty., Albany, N. Y., on the brief) for defendant David F. Lee, Jr.

Clarence D. Rappleyea, Jr., Norwich. N. Y., for defendant Edward J. Lee.

Joe Schapiro, Hamilton, N. Y., for defendant Schapiro.

TIMBERS, District Judge.^*

QUESTION PRESENTED

This action was brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983 (jurisdiction to sue in this Court being invoked pursuant to 28 U.S.C. § 1343 (3)), to recover damages in excess of a million dollars from certain state officials and attorneys whose alleged conduct under color of state law — in one way or another said to be related to plaintiff's unsuccessful marital litigation in the Family Court of Chenango County — is claimed to have deprived plaintiff of federally protected rights.

The threshold question presented, where concededly there is an absence of diversity jurisdiction, is whether there is federal question jurisdiction pursuant to 28 U.S.C. § 1331(a).

After holding hearings at Syracuse on January 8 and 22, 1968, and upon consideration of the complaint, motions, briefs, affidavits, exhibits and all papers filed herein, the Court concludes that no substantial federal question is presented. Accordingly, the action is dismissed for lack of subject matter jurisdiction, with costs to defendants.

PARTIES TO THE ACTION

The sole plaintiff and all six defendants are citizens of the State of New York.

Plaintiff, a resident of Sherburne, N. Y., alleges that he is engaged in the construction business, the rental business, the business of operating custom farming equipment and "is actively engaged in the political field."

At the time of the acts complained of, defendant Kathleen Belden (now Kathleen Belden Tamsett), a resident of Norwich, N. Y., was the Clerk of the Family Court of Chenango County.

Defendant Joseph J. Benenati, Jr., a resident of Norwich, N. Y., is the Sheriff of Chenango County.

Defendant David F. Lee, Jr., a resident of Norwich, N. Y., is a Justice of the Supreme Court of the State of New York.

Defendant Edward J. Lee, a resident of Norwich, N. Y., is a practicing member of the bar of the State of New York and is one of five members of the Board of Trustees of the David L. Follett Memorial Library — a Supreme Court Library — at Norwich, having been appointed to the Board of Trustees by the Governor pursuant to N.Y. Judiciary Law § 827 (McKinney Supp.1967).

Defendant Lynn N. Peterson, a resident of Norwich, N. Y., is the County Judge, Family Court Judge and Surrogate of Chenango County.

Defendant Joe Schapiro, a resident of Hamilton, N. Y., is a practicing member of the bar of the State of New York and represented plaintiff's wife, Ruth Jemzura, in marital litigation in the New York state courts.

PLAINTIFF'S CLAIMS

Plaintiff's rambling complaint, filed herein November 7, 1967, is something less than a model of clarity. Viewing his claims, however, in the light most favorable to plaintiff, as gleaned from his complaint, his affidavits, his statements in open court and all other papers and proceedings before this Court, the following are plaintiff's essential claims in this action:

(1) First Cause of Action ($1,000,000 Damages Demanded)

That during the period from November 4, 1964 to January 4, 1967, defendants Belden, Benenati, Peterson and Schapiro conspired to deprive plaintiff of due process of law by having him arrested for contempt of an order of the Chenango County Family Court which directed him to pay $50 per week for the support of his two minor children — the gravamen of plaintiff's grievance being the technical defects of failing to file the Family Court support order of November 4, 1964 in the Chenango County Clerk's Office (N. Y. Family Court Act § 217 (McKinney Supp.1967)) and failing to have the order signed by the Clerk of the Chenango County Family Court or by the Chenango County Clerk (N.Y. CPLR § 5016(a) (McKinney 1963)), although the support order was signed by the Family Court Judge after a hearing at which plaintiff was represented by counsel and plaintiff was fully aware of the support order.

(2) Second Cause of Action ($10,000 Damages Demanded)

That on November 6, 1964, defendants Belden and Peterson refused plaintiff's request for a transcript of the November 4, 1964 hearing on the ground he was not an attorney; and on December 30, 1964 said defendants conspired to cause plaintiff's wife to sign a petition to bring plaintiff before the Family Court for a hearing for non-compliance with the support order of November 4, 1964, after which a warrant was issued for his arrest for contempt of said order (also referred to in the Third Cause of Action, infra).

(3) Third Cause of Action ($1,000,000 Damages Demanded)

That on December 30, 1964, defendants Benenati and Peterson conspired to deprive plaintiff of equal protection of the laws by having him arrested pursuant to an arrest warrant issued by Judge Peterson (N.Y. Family Court Act § 453 (McKinney 1963)) upon the verified petition of plaintiff's wife that plaintiff had failed to obey the Family Court order of November 4, 1964 with respect to supporting his minor children and removing himself from the home — the gravamen of plaintiff's grievance being, in addition to the technical defects regarding the order referred to in the first cause of action, supra, that plaintiff without a hearing was held in excessive bail of $2,500 to secure past and future payments of support (N.Y. Family Court Act § 153 (McKinney 1963)), although immediately upon being arrested by Sheriff Benenati, and at the telephone direction of Judge Peterson, plaintiff was released upon posting $500 cash bail for appearance in the Family Court (N.Y. Family Court Act § 155 (McKinney 1963)).

(4) Fourth Cause of Action ($5,000 Damages Demanded)

That during the period from 1965 to November 6, 1967, defendants Benenati, David F. Lee, Jr., and Edward J. Lee conspired to deprive plaintiff of equal protection of the laws by refusing him access to the Supreme Court Library at Norwich on the days it was closed; and, after granting him access, by refusing to permit him to take books out of the library, thus "denying the plaintiff an opportunity to a higher education."

(5) Fifth Cause of Action ($10,000 Damages Demanded)

That on November 4, 1964, after conclusion of the testimony in the separation action, defendants Peterson and Schapiro conspired to have the order of the Family Court changed to require plaintiff, rather than his wife, to move out of the house; and on January 4, 1967, defendants Peterson and Schapiro conspired to have the support order of the Family Court amended by requiring plaintiff to pay $75 per week for the support of his minor children, plaintiff claiming this to be unjust in view of his "$1800 business loss" during 1966.

In addition to the foregoing, plaintiff has asserted other miscellaneous claims. His allegations also overlap from one cause of action to another. The Court has considered all of plaintiff's claims, wherever asserted and in whatever form. The summary set forth above is believed to be a fair statement of his essential claims, expressed in the light most favorable to plaintiff.

DEFENDANTS' CLAIMS

Each of the defendants has moved, pursuant to Rule 12(b) (1) and (6), Fed.R.Civ.P., to dismiss for lack of jurisdiction over the subject matter and for failure to state a claim upon which relief can be granted.

Defendants David F. Lee, Jr., and Peterson, having acted in their capacities as state judges, claim judicial immunity; and defendants Belden and Benenati, having acted in their capacities as officers of the state courts and under judicial direction, claim immunity.

Defendant Schapiro, being an attorney and not having acted as a state official, claims that his actions were not taken under color of state law within the meaning of the Civil Rights Act.

Defendants also claim adequate state remedies are available to plaintiff, of which he has not availed himself or which he has not exhausted, certain of the defendants having been sued by plaintiff in the New York state courts to recover damages in excess of a million dollars based on the same alleged acts which are the subject of the instant action but cast in causes of action for false arrest, malicious prosecution, abuse of process and a proceeding under N.Y. CPLR Art. 78 (McKinney 1963).

OPINION

Failure To Comply With Rule 8

Plaintiff's rambling, almost incomprehensible, complaint appropriately could be dismissed on the Court's own motion on the ground that it does not comply with the requirements of Rule 8(a), Fed.R. Civ.P., that a pleading must contain "a short and plain statement" of jurisdictional grounds and of a claim showing the pleader is entitled to relief; nor does it comply with the requirements of Rule 8(e) (1) that each averment of a pleading shall be "simple, concise and direct." 2A Moore's Federal Practice ¶ 8.13, at 1704-1705 (2d ed. 1967); Curry v. Ragan, 257 F.2d 449 (5 Cir. 1958), cert. denied, 358 U.S. 851 (1958). In dismissing such a complaint on its own motion for failure to comply with Rule 8, the court in Shakespeare v. Wilson, 40 F.R.D. 500, 504 (S.D.Cal.1966), stated:

"This is particularly important in the Civil Rights Act area, where on scrutiny it is often revealed that a plaintiff is trying to use the Civil Rights Act as a way of `appealing' a state court judgment, or where the Plaintiff is trying to raise

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