Slotnick v. Garfinkle, Nos. 80-1212

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before COFFIN, Chief Judge, CAMPBELL and BOWNES; PER CURIAM
• Citation: 632 F.2d 163
• Parties: Lester SLOTNICK, Plaintiff, Appellant, v. Paul GARFINKLE et al., Defendants, Appellees.
• Docket Number: 80-1375,Nos. 80-1212
• Decision Date: 14 October 1980

Page 163

632 F.2d 163 Lester SLOTNICK, Plaintiff, Appellant,
v.
Paul GARFINKLE et al., Defendants, Appellees. Nos. 80-1212, 80-1375. United States Court of Appeals,
First Circuit. Submitted Sept. 12, 1980.
Decided Oct. 14, 1980.

Page 164

Lester Slotnick, pro se.

Howard P. Speicher, Boston, Mass., on brief, for Sheriff Eisenstadt, defendant, appellee and Stephen S. Ostrach, Asst. Atty. Gen., Boston, Mass., on brief, for judicial appellees.

Francis X. Bellotti, Atty. Gen., and Michael C. Donahue, Sp. Atty. Gen., Dept. of Corrections, Boston, Mass., on brief for Charles W. Gaughan, defendant, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

PER CURIAM.

In a complaint filed February 9, 1977 Lester Slotnick alleged that six attorneys, two state court judges, a state court clerk, a justice of the peace, the superintendent of a state hospital and a county sheriff, acting

Page 165

in a conspiracy and as individuals, deprived him of his liberty without due process. The complaint was brought under 42 U.S.C. §§ 1983 and 1985(3) (1976).

Much in Slotnick's pleadings is conclusory and contradictory, but his allegations are essentially as follows: Paul Garfinkle, an attorney, on or before April 14, 1976, petitioned a Massachusetts state court to find Slotnick in civil contempt for violation of an order prohibiting Slotnick from slandering Garfinkle. Slotnick was brought to court by a subpoena improperly issued by Justice of the Peace Richard Percoco. The case against Slotnick was handled by Garfinkle's associates, Mark Canter and Philip Weinstein. Three other attorneys, Harold Stavisky, Theodore Alevizos and Burton Pike were potential witnesses but apparently did not testify. All six attorneys knew that the allegations against Slotnick were false. Justice Chmielinski presided over the case and committed Slotnick to a state hospital for examination. His clerk, Thomas McDonough, issued criminal committal papers altered to indicate that Slotnick's commitment was pursuant to a civil action. Deputies of the county sheriff, Thomas Eisenstadt, delivered Slotnick to the hospital, where Charles Gaughan, the hospital superintendent, held him despite being informed by the admitting officer that he should not have been in the institution. On April 22, 1976, Slotnick was being brought to court for further proceedings when a bombing closed the courthouse. Chief Justice McLaughlin ordered Slotnick temporarily returned to the hospital, from which he was ultimately released by court order on April 26, 1976.

The district court disposed of Slotnick's complaint in three steps. On July 7, 1977, it granted the motions of defendants Gaughan, Pike, Chmielinski, McDonough, Garfinkle, Percoco and Canter to dismiss the complaint as to them for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). At the same time, the court granted the motions of defendants Stavisky and Alevizos for judgment on the pleadings. Fed.R.Civ.P. 12(c). These latter motions were properly treated as raising the defense asserted by the other defendants under Fed.R.Civ.P. 12(b)(6). See Fed.R.Civ.P. 12(h)(1); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1367, at 688-89 (1969).

Next, on October 26, 1977, the court granted defendant McLaughlin's motion to dismiss for failure to state a claim upon which relief may be granted. This left only Weinstein and Eisenstadt still before the court.

Prior to ruling upon their Rule 12(c) motions, the court held a hearing on February 4, 1980 for the purpose of allowing Slotnick to supplement orally the allegations of his pro se complaint. At the hearing, the district judge and Slotnick engaged in a lengthy, sometimes wide-ranging discussion of the claim that attorney Weinstein and sheriff Eisenstadt had conspired with other of their former co-defendants to commit Slotnick unlawfully to a state hospital. Even with the benefit of this hearing, however, Slotnick's...