Stambler v. Dillon

• Decision Date: 23 June 1969
• Docket Number: No. 68 Civ. 537.,68 Civ. 537.
• Citation: 302 F. Supp. 1250
• Parties: Saul STAMBLER, Rose Stambler, Empire Park, Inc. (a defunct corporation), Empire Park, Inc., Prudential Operating Co., Inc., Plaintiffs, v. John J. DILLON, Title Guarantee Co., Peter Wasylec, Marcy Finke, George B. Gordon, David Avstreih, Leonard Weiss, John J. O'Malley, County Dollar Corporation, Defendants.
• Court: U.S. District Court — Southern District of New York

302 F. Supp. 1250

Saul STAMBLER, Rose Stambler, Empire Park, Inc. (a defunct corporation), Empire Park, Inc., Prudential Operating Co., Inc., Plaintiffs, v. John J. DILLON, Title Guarantee Co., Peter Wasylec, Marcy Finke, George B. Gordon, David Avstreih, Leonard Weiss, John J. O'Malley, County Dollar Corporation, Defendants.

No. 68 Civ. 537.

United States District Court S. D. New York.

June 23, 1969.

Saul Stambler, Rose Stambler, pro se.

Louis J. Lefkowitz, Atty. Gen., of State of New York, for defendant John J. Dillon; Mortimer Sattler, New York City, of counsel.

Avstreih, Martino & Weiss, Mt. Vernon, for defendants David Avstreih, Leonard Weiss, Peter Wasylec; Leonard A. Weiss, Mount Vernon, of counsel.

Daniel Goldberg, New York City, for defendant George B. Gordon.

Finke, Jacobs & Hirsch, New York City, for defendant Marcy Finke; Louis Gruss, New York City, of counsel.

John J. Boyle, New York City, for defendants County Dollar Corporation, Title Guarantee Co., John J. O'Malley.

OPINION

HERLANDS, District Judge:

The amended complaint in the instant action alleges that the defendants acted and conspired in such a way as to violate various civil rights statutes, inter alia, 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, 1994, and the Fifth, Sixth, Thirteenth and Fourteenth Amendments to the United States Constitution. Plaintiffs assert that jurisdiction arises under 28 U.S.C. §§ 1331, 1332 and 1343; and declaratory relief is sought under 28 U.S.C. §§ 2201 and 2202.

Answers by all the defendants except Justice Dillon assert the defenses of lack of subject matter jurisdiction, lack of in personam jurisdiction, res judicata and failure to state a claim upon which relief can be granted.

By this group of motions all the defendants move to dismiss the amended complaint under Fed.R.Civ.P. 12(b) (1), (2) and (6) for lack of subject matter jurisdiction; lack of jurisdiction over the person; for failure to state a claim; and, alternatively, defendants urge the Court to grant summary judgment dismissing the complaint for failure to state a claim. An injunction prohibiting the plaintiffs from continuing the instant action any further is also sought along with sanctions and costs.

The Court finds it unnecessary to consider matter submitted outside the pleadings and hereby holds that the amended complaint fails to state a claim for relief as against any and all the defendants.

Because plaintiffs appear pro se and raise claims under the Civil Rights Statutes, 42 U.S.C. § 1981 et seq., the Court has given a liberal reading to the amended complaint but still finds it entirely inadequate for reasons elaboated upon below.

Where a litigant raises claims under the Civil Rights Statutes, even though a complaint appears to be insubstantial, the more judicious approach is to assume jurisdiction and then decide whether the pleading states a claim for relief. See, e. g., United States v. Guest, 383 U.S. 745, 756, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946); Rhodes v. Meyer, 334 F.2d 709 (8th Cir. 1964), cert. denied, 379 U.S. 915, 85 S.Ct. 263, 13 L.Ed.2d 186 (1964); Jemzura v. Belden, 281 F.Supp. 200 (N.D.N.Y.1968); Joe Louis Milk Co. v. Hershey, 243 F.Supp. 351 (N.D.Ill. 1965); Olson v. Board of Ed., 250 F. Supp. 1000 (E.D.N.Y.1966); Campbell v. Glenwood Hills Hospital, Inc., 224 F. Supp. 27 (D.Minn.1963).

The Amended Complaint

The facts alleged in the amended complaint indicate that plaintiffs were unsuccessful parties in three civil actions consolidated and tried before Justice Dillon in the New York State Supreme Court, in and for the County of Westchester. The defendants in the instant action include Justice Dillon, the successful parties in the state court actions, their counsel, a trial witness and others alleged to have participated in certain real estate transactions which were the subject matter of those actions.

The amended complaint alleges a conspiracy between Justice Dillon and the other defendants to deprive plaintiffs of their property without due process of law and in violation of the equal protection clause of the fourteenth amendment and other constitutional rights, and seeks an order declaring the state court judgment null and void, a permanent injunction restraining all defendants from enforcing that judgment, and damages in the amount of $500,000. from all the defendants other than Justice Dillon.¹

Prior Proceedings

1. This Court denied a preliminary injunction on March 28, 1968 noting that "there is more than a substantial doubt whether there is subject matter jurisdiction and whether plaintiffs have stated a claim upon which relief can be granted."²

2. On July 13, 1968, Judge McGohey granted Justice Dillon's motion for summary judgment dismissing the complaint for failure to state a claim under §§ 1981, 1982, 1983 and 1985, 288 F.Supp. 646. Judge McGohey was of the view that, if in fact Justice Dillon did act without jurisdiction, the doctrine of judicial immunity was inapplicable to him and that, consequently, the district court did have subject matter jurisdiction under 28 U.S.C. § 1343. He held, however, that the complaint failed to state a cause of action under §§ 1981 and 1982, inasmuch as they deal only with racial discrimination, and none was alleged in the complaint; that § 1986 was inapplicable to Justice Dillon because no damages were sought against him; that he need not decide whether plaintiffs stated a claim under §§ 1983 and 1985 "for in any event the complaint fails to allege sufficient facts to show that Justice Dillon was part of any such conspiracy if one existed. The complaint does no more than charge Justice Dillon in the most general terms with participation in the alleged conspiracy. This is not enough. * * * The complaint shows only that the judge performed the normal duties of his office in the trial and decision of the issues in a strongly contested litigation."

Plaintiffs' claim of involuntary servitude and Saul Stambler's claim, in the original complaint, that he was convicted of fraud and deceit without a trial, were found frivolous by Judge McGohey.

3. Judge Tenney, on October 7, 1968, granted plaintiffs leave to file an amended complaint pursuant to Rules 59(e) and 15(a) of the Federal Rules of Civil Procedure, in order to give them "an additional opportunity to allege `with at least some degree of particularity overt acts which defendants engaged in which were reasonably related to the promotion of the claimed conspiracy', Powell v. Workmen's Compensation Bd., 321 327 F.2d 131, 137 (2d Cir. 1964)". Judge Tenney specifically stated that the court expressed no opinion as to whether plaintiffs could eventually state a cause of action.

In addition, Judge Tenney granted the defendants' motions to dismiss the complaint as to the corporate plaintiffs because they were not represented, as required, by an attorney at law.

Judge Tenney denied the motions to dismiss made by the defendants other than Justice Dillon, as premature, in view of the fact that he was granting leave to amend the complaint.³

The Court presently has the amended complaint before it, and the renewed motions by all the defendants.

Discussion

We note initially that plaintiffs invoke the jurisdiction of the Court under 28 U.S.C. §§ 1331, 1332 and 1343. There is no diversity and, therefore, no jurisdiction under § 1332. The court does have jurisdiction under § 1331 if a cause of action is alleged under the fifth, sixth, thirteenth and fourteenth amendments and the jurisdictional amount exists; and under § 1343, if a cause of action is stated under the civil rights act. As indicated above, the Court will assume jurisdiction in order to determine whether plaintiffs have stated a claim for relief.

The Court will consider seriatim each section of the Civil Rights Statute invoked by plaintiffs and each amendment to the constitution.

Sections 1981 and 1982

Sections 1981 and 1982 of title 42 are implementations of the thirteenth and fourteenth amendments and prohibit the denial of equal protection of the laws on the grounds of race or color; and guarantee to non-white citizens equal property rights with white persons. Nothing in the amended complaint conceivably relates to these sections. Therefore, no claim upon which relief can be granted has been alleged under them.

Section 1983

Section 1983 gives a right of action in tort to every individual whose federal rights are infringed by any person acting under color of state law. The protection is extended to any "rights, privileges, or immunities secured by the Constitution and laws".

The requirement that the action be taken under color of state law is indispensable to the establishment of a claim for relief. Although state officials are usually the only people who can act with the authority of the state in order for there to be a misuse of power derived from the state, e. g., Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Collins v. Hardyman, 341 U.S. 651, 662, 71 S. Ct. 937, 95 L.Ed. 1253 (1951); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Jobson v. Henne, 355 F.2d 129, 133 (2d Cir. 1966); Pritt v. Johnson, 264 F. Supp. 167 (M.D.Pa.1967); Campbell v. Glenwood Hills Hosp., Inc., supra, state action can be established if the defendants who are not connected with the state are "wilful participant(s) in joint activity with the State or its agents". United States v. Price, 383 U.S. 787, 794 n. 7 86 S.Ct. 1152, 1157, 16 L.Ed.2d 267 (1966). Plaintiffs herein, seek to cloak the defendants with the authority of state law by alleging a conspiracy between them and Justice Dillon.

There is no doubt that Justice Dillon is immune from any liability under the Civil Rights Act, see, e. g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Bradford Audio Corp. v. Pious, 392 F.2d 67 (2d Cir. 1968); Fanale v. Sheehy, 385 F.2d...