noting that the New York State Commission for Human Rights dismissed claim on the grounds that the Commission had no jurisdiction to consider discrimination due to “political and social views”
How later courts described this case
- noting that the New York State Commission for Human Rights dismissed claim on the grounds that the Commission had no jurisdiction to consider discrimination due to “political and social views”
- in a pre-Monell case, the Second Circuit treated a state university as the alter ego of the State and held that it was not a suable person under § 1983
Written by the judges who cited it.
The opinion
MOORE, Circuit Judge
(concurring):
I concur in the dismissal of the complaint. The motion pursuant to Rule 12(b) of the Federal Rules of Civil Practice attacking the complaint for legal insufficiency was converted indirectly into a motion for summary judgment by the injection of factual issues and the *934 defenses of lack of jurisdiction and res judicata,. Such a conversion does not have a tendency to provide the opportunity for correction of deficiencies.
In the Article 78 proceeding in the State courts, the Appellate Division, Third Department, Matter of Avins v. Gould, 35 A.D.2d 1043 , 316 N.Y.S.2d 560 , leave to appeal denied, 28 N.Y.2d 484 , 320 N.Y.S.2d 1028 , 269 N.E.2d 208 , said:
“Evaluation of a teaching candidate is a discretionary power vested in the appointing officer, and unless made in an arbitrary and capricious manner, may not be disturbed.
“Qualifications of a teacher, concerning such matters as the quality of books and articles published, recommendations from past employers and teachers, are largely determinations properly left to the judgment of an administrator.”
However, I agree that it would be unwise to preclude plaintiff from having an opportunity to plead his grievances, if such exist, but only upon a showing in the District Court that an amended complaint has legally sufficient substance.