Newcomer v. Coleman

• Decision Date: 23 December 1970
• Docket Number: Civ. No. 14152.
• Citation: 323 F. Supp. 1363
• Court: U.S. District Court — District of Connecticut
• Parties: Sam H. NEWCOMER v. Robert E. COLEMAN, Marvin Palmer, Edmond McRae, Jr., Louis W. Johnson, and Salvatore LaBella, individually and as Commissioners of the Housing Authority of the City of Middletown, and the Housing Authority of the City of Middletown.

323 F. Supp. 1363

Sam H. NEWCOMER v. Robert E. COLEMAN, Marvin Palmer, Edmond McRae, Jr., Louis W. Johnson, and Salvatore LaBella, individually and as Commissioners of the Housing Authority of the City of Middletown, and the Housing Authority of the City of Middletown.

Civ. No. 14152.

United States District Court, D. Connecticut.

December 23, 1970.

Eugene N. Sosnoff, Sosnoff, Cooper & Whitney, New Haven, Conn., for plaintiff.

Robert L. Hurney, Middletown, Conn., for defendants.

RULING ON MOTION TO DISMISS and MOTION FOR A PRELIMINARY INJUNCTION

BLUMENFELD, District Judge.

The plaintiff, Sam H. Newcomer, formerly served as Executive Director and Secretary of the Housing Authority of the City of Middletown until his dismissal from that position by vote of the Middletown Housing Authority Commissioners at a meeting on October 21, 1970.¹ In this suit against the Housing Authority and the five Housing Authority Commissioners, he contends that his dismissal violates his right to due process and equal protection of the laws, as guaranteed by the fourteenth amendment of the federal Constitution, in that he did not receive adequate notice or a fair hearing prior to his dismissal.² The plaintiff also alleges that this summary dismissal, occurring as it did in the midst of a heated controversy about the Housing Authority, has exposed him to considerable public criticism and scandal. As a result, he contends, his dismissal has damaged his reputation as a public housing director and has seriously jeopardized his capacity to pursue his career in the same or similar employment, since he has not been informed of the charges against him or been given the opportunity to rebut them in an appropriate forum.³

The plaintiff ultimately seeks a declaratory judgment that his dismissal from the Housing Authority was illegal and void, and a permanent injunction ordering his reinstatement to his former position. Plaintiff also seeks compensatory damages and punitive damages in the amount of $250,000. By the present motion in the instant action, plaintiff seeks a preliminary injunction restoring to him his position at the Housing Authority of Middletown pending the outcome of this litigation, as well as his lost wages and benefits. A hearing on this motion for preliminary injunction was held before this court on December 14, 1970.

This action is brought under 42 U.S.C. §§ 1983 and 1985(3) to redress the deprivation of rights, privileges and immunities secured to the plaintiff by the Constitution. Jurisdiction is alleged to exist under 28 U.S.C. §§ 1331 and 1343(1) and (3). The plaintiff also contends that this court has pendent jurisdiction over his second claim for relief which is based on state law and an interpretation of the terms and conditions of plaintiff's employment.⁴

I. Motion to Dismiss

The defendants have moved to dismiss this action on the grounds that this court lacks jurisdiction under either 28 U.S.C. §§ 1343(1) and (3) or 1331, and that plaintiff fails to state a claim upon which relief can be granted under 42 U. S.C. §§ 1983 and 1985(3).

In his complaint, the plaintiff alleges that the actions of the defendants have denied him his right to due process of law and deprived him of his salary of $15,870 per year. He also seeks $250,000 in punitive damages. Thus the matter in controversy exceeds $10,000, which the defendants do not dispute, and arises under the Constitution of the United States. This court, therefore, has jurisdiction of the controversy pursuant to 28 U.S.C. § 1331.⁵ Defendants' motion to dismiss for lack of jurisdiction is denied.

Defendants' contention that the plaintiff has failed to state a claim upon which relief can be granted under 42 U. S.C. § 1983 is rejected in light of the Second Circuit's decision in Birnbaum v. Trussell, supra, 371 F.2d 672. In that case, the court specifically held that § 1983⁶ affords a right of action to a public employee to obtain relief for injuries suffered in consequence of his summary dismissal, without hearing, whenever there is a "substantial interest" involved in his discharge. Id. at 679. The substantial interests involved in Birnbaum were two: "reputation and the ability to pursue a profession effectively." Id. at 678 n. 13.

Plaintiff's complaint alleges that those same interests are at stake in the instant case,⁷ and the fact that Mr. Newcomer was a public employee who has been summarily discharged is also specifically alleged. Therefore, plaintiff has stated a claim upon which this court can grant relief under 42 U.S.C. § 1983 and the defendants' motion to dismiss is denied. See also, Kletschka v. Driver, 411 F.2d 436 (2d Cir. 1969); Roth v. Board of Regents, 310 F.Supp. 972 (W. D.Wis.1970); Taylor v. New York City Transit Auth., supra, 309 F.Supp. 785; Lucia v. Duggan, 303 F.Supp. 112 (D. Mass.1969); Olson v. Regents of Univ. of Minn., 301 F.Supp. 1356 (D.Minn. 1969).

In his complaint, plaintiff Newcomer has alleged no specific facts to substantiate his claim that he has been denied equal protection of the laws and that, therefore, he has a claim for relief under 42 U.S.C. § 1985(3).⁸ He does not allege a pattern of discrimination, or impermissible consideration of a race or class, or that state law has been unevenly applied. It so far appears that the actions taken by the defendants were directed only against the plaintiff as an individual, and not because he was a member of a class or race.⁹ See Kletschka v. Driver, supra, 411 F.2d at 447. Therefore, the defendants' motion to dismiss with respect to plaintiff's claim for relief under § 1985(3) is granted, with leave for the plaintiff to amend his complaint if that should be deemed advisable.

II. Motion for Preliminary Injunction

The sole question before this court at this time is whether or not to grant the plaintiff some temporary relief pending the outcome of this litigation. A motion for a preliminary injunction is addressed to the discretion of the court. Santos v. Bonanno, 369 F.2d 369, 370 (2d Cir. 1966) (per curiam). The plaintiff must show that (1) he has a reasonable probability of succeeding at trial and that (2) if the preliminary injunction is denied, he will possibly suffer irreparable injury. See Checker Motors Corp. v. Chrysler Corp., 405 F.2d 319, 323 (2d Cir.), cert. denied, 394 U. S. 999, 89 S.Ct. 1595, 22 L.Ed.2d 777 (1969); Chappell & Co. v. Frankel, 367 F.2d 197, 202 (2d Cir. 1966) (en banc).

In order to show a reasonable probability of success at trial, the plaintiff need not establish an absolutely certain right to a favorable final decision. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953). Thus, while it is to be kept in mind that a hearing on a preliminary injunction is not a proceeding for full consideration of the merits, the evidence does demonstrate a reasonable probability that the plaintiff will succeed at trial.

At the hearing before this court on December 14, the plaintiff presented evidence to substantiate his allegations that he was an employee of the Housing Authority of the City of Middletown, a public agency; that he was subjected to a summary dismissal without a hearing;¹⁰ and that his name, reputation and possibilities for employment have been substantially tarnished by the circumstances and wide-spread publicity surrounding his discharge.¹¹

If these facts are proven at trial, plaintiff will succeed in his claim that his right to due process was violated by his summary dismissal and that he must be afforded relief under the case of Birnbaum v. Trussell, supra, 371 F.2d 672.

In that case, a physician, employed by the New York Department of Hospitals, was summarily dismissed without a hearing on the basis of charges that he was prejudiced against Negroes. The Second Circuit stated that while public employees "have no absolute right to a hearing on discharge from public employment because government employment is a privilege and not a property right * * * the courts have become more inclined to consider the causes of discharge and the methods and procedures by which a dismissal is effected as it may bear upon reputation and the opportunity for employment thereafter." Id. at 677. The court held that Dr. Birnbaum suffered more than the loss of employment, and that when substantial interests in reputation and opportunity for future employment are involved¹² the discharge of a public employee cannot be based on arbitrary grounds or "without a procedure calculated to determine whether legitimate grounds do exist." Id. at 678. On the basis of this holding, the court reversed a dismissal of the complaint by the court below to allow development of Dr. Birnbaum's claim for relief.

In cases following Birnbaum, several courts have agreed with, applied and even extended the principle announced therein: Olson v. Regents of Univ. of Minn., supra, 301 F.Supp. at 1361 (dismissal of a maintenance employee) ("procedurally an employee in the public sector . . . should be entitled to an advance notice in writing of his termination, a written statement of the reasons therefor, and a reasonable time allowed within which to respond * * * either in writing or by an informal appearance"); Lucia v. Duggan, supra, 303 F.Supp. at 117-118 (dismissal of untenured high school teacher) ("whatever the derivation and scope of plaintiff's alleged freedom to wear a beard, it is at least an interest of his, especially in combination with his professional reputation as a school teacher, which may not be taken from him without due process of law"); Roth v. Board of Regents, supra, 310 F.Supp. at 980 (decision not to rehire a nontenured assistant professor) ("minimal procedural due process includes a statement of the reasons why the university intends not to retain the professor, notice of a hearing at which he may respond to the stated reasons, and a hearing if the professor appears at the appointed time and place"); Kletschka v. Driver, supra, 411 F.2d at...