Appendix — Zemsky v. City of New York
Supreme Court brief1987
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87 -6 88 OCT 14 1987
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1987
CREE LEE I CN.
HARRY N. ZEMSKY,
Petitioner,
—_—V—
THE CITY OF NEW YORK; THE BOARD OF EDUCATION
OF THE CITY OF NEW YORK; VICTOR VILAREAL; ALAN
IRGANG; JOHN SISTI; ROBERT J. LEVENTHAL; PETER
ROSENBERG; XAVIER FRANCIS RUGGIERO: LOFTUS NOV-
ELTY AND MAGIC COMPANY, A CORPORATION; DOE
ONE; DOE TWO; ETC.,
Respondents.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Harry N. Zemsky, Pro Se
3030 Emmons Avenue
Brooklyn, New York 11235
Telephone: (718) 934-7358
October 14, 1987
BEST AVAILABLE COPY Ja
TABLE OF CONTENTS
TO APPENDIX
Decision By Court of
Appeals For Second
Ce. are ta ae a 3 © ZS
District Court Orders
Closing Cases........... 24
Letter From Opposing
Counsel to Judge
Bramwell..... Peter eee eee 27
Order by District
eS ee eee 29
Letter From Clerk, U.S.
Supreme Court Regarding
Extension of Time....... 33
Order By Supreme Court
(Mr. Justice Marshail)
Extending Time for
feo Serer ee ee ee ee 35
Plaintiff's Application
for Extension of Time...37
Municipal Defendants'
Notice of Motion........ 42
Municipal Defendants’
Affidavit in Support
of Motion for Dismissal
GE SUELO sci incessas 46
app -i-
28
32
34
36
41
45
59
10.
il.
12d.
|
14.
15.
16.
| 2 F
18.
Municipal Defendants'
Memorandum of Law
In Support Of Their
MORAN ca cawkeenenewnen 60 - 95
Transcript of Proceedings
in District Court,
MOR 2, OM bse ec en aes 96 - 119
Plaintiff's Letter
Requesting Additional
34@0 TO ABOWOT. cc ciccecse 120
Plaintiff's Letter
Requesting Permission
To Amend His
CONG LOLOES 666 ss eek dake us ee |
Municipal Defendants'
Brief In Court of
AQOGGLG « 6:46:46 4044444504%-5 122 - 146
Excerpt From Contract
Between United Federation
of Teachers and Board
OF BEbuQet iG. 4c cundwcien 147 - 149
United Federation of
Teachers Newspaper
BVCLCLO: « 4.06 54 kos Ow eR Ra 150 .+ 156
Plaintiff's Motion for
Temporary Restraining
OOGRSs 6.s-60c nn sack eee ae 157 - 160
Reply to Sabbatical
Leave Application....... 161 - 163
app -ii-
19.
20.
ah.
aa.
23.
24.
Y dB
26.
a
28.
29.
Letter from Super-
intendent Ilivicky...... 163
Letter Regarding Medical
Examination (4/09/86)...169
Letter Ordering
Plaintiff to Medical
ae Ga es ae be oo 0 Lik
Probable Cause Letter
From Secretary of Board
ee 173
Letter of Suspension by
Chancellor Quinones..... 175
Certified Copy
of Board of Education
EE PE re 177
Letter From Counsel,
United Federation of
Le adie o 64-0 4)6 0 0 181
Letter From Board of
Education to State
Commissioner of
SE ee ae 185
Plaintiff's Receipt for
Retirement Application. .187
Letter From Division of
Special Education....... 188
Magistrate's Orders for
Status Conference....... 191
app -iii-
168
170
172
174
176
180
184
186
190
194
30.
31.
32.
33.
34.
35.
36.
37.
38.
Letter From Judge
Bramwell for Pre-Trial
ee 195
Report by Defendant
Rosenberg About Defendant
Vilareal's Attack
oe Le 2. ewes 197
Statement By Defendant
Vilareal About His Attack
Om Pietimeites éscctccsasa 199
Letter By Defendant Irgang
About Plaintiff's
Accident Reports........ 200
Document: ‘Accident
Reports for
a 202
"NO ATTORNEY'' Letter
from Office of City
Comptroller to Mr. Micheal
O'Dwyer, New York City
Board of Education, Dated
April 22, 1983........-. 206
Notice Of Claim Letter
To Defendant Irgang
From Board
OF Taweation...sccsccecs 208
Magistrate Referral
OnPGOES. . ccccscaccesecscs 210
Finalized Personnel
Transaction Form........ 214
app -iv-
196
198
201
205
207
209
213
215
39.
40.
41.
42.
43.
Letter From Corporation
Counsel to Judge Bramwell
Requesting Conference...216 - 218
Letters From Teachers
Retirement System....... en3 * 2a,
Plaintiff's Brief On
Appeal to Second Circuit.232 - 274
Plaintiff's Most Recent
Complaint, Filed June 26,
1986, Amended July 16,
|, AR eae en olen erie era 275 - 383
Plaintiff's Request
For Additional Extension
of Time to File Petition
in U.S. Supreme Court,
October 7, LFG1s ix eawecs 384 - 386
app -v-
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Nos. 855, 856, 857 August Term, 1986
Argued: March 3, 1987
Decided June 12,1987
Docket Nos. 86-7614, 86-7617, 86-7618
HARRY N. ZEMSKY,
Plaintiff-Appellant
Vv.
THE CITY OF NEW YORK, THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK,
VICTOR VILAREAL, ALAN J. IRGANG,
JOHN SISTI, ROBERT J. LEVENTHAL,
PETER ROSENBERG, XAVIER FRANCIS
RUGGIERO, LOFTUS NOVELTY AND MAGIC
COMPANY, A CORPORATION, DOE ONE,
DOE TWO
Defendants-Appellees.
Before: OAKES and WINTER, Circuit
Judges, and ZAMPANO, Senior District
Judge .*
APP.- l -
Appeal from an order of the United
States District Court for the Eastern
District of New York (Henry Bramwell,
Judge) staying certain of plaintiff's
claims under 42 U.S.C. § 1983 pending
the disposition of related state court
proceedings and dismissing the
remainder of plaintiff's claims under
42 U.S.C. §§ 1981, 1982, 1983, 1985,
and 1986 and state tort lgw.
Affirmed in part, reversed in part,
and remanded.
HARRY N. ZEMSKY, Brooklyn, New
York, pro se
ELIZABETH DVORKIN, New York,
New York (June A. Witterschein,
Doron Gopstein, Acting
Corporation Counsel, New York,
New York, of counsel, for
Defendants-Appellees.
WINTER, Circuit Judge
Harry Zemsky appeals pro se from
Judge Bramwell's order staying certain
of his federal claims pending the
disposition of related state court
proceedings and dismissing the
remainder of his federal and state
claims. We reverse the stay of certain
of his federal civil rights claims
against the City of New York, the Board
of Education of the City of New York,
APP.- 2 -
and five school officials!
(collectively referred to as ''the
municipal defendants"). We affirm the
dismissal of his remaining claims.
BACKGROUND
Zemsky is a social studies teacher
employed by the Board of Education at
the Franklin D. Roosevelt High School
in Brooklyn. He claims to have suffered
personal injuries as a result of six
assaults on him by students at the
school between June 1982 and November
1985. His complaint? alleges,
inter alia, that the municipal
defendants refused to discipline the
students involved in the assaults,
failed to provide adequate security at
the school, conspired to conceal
evidence relevant to the assaults,
defamed and harassed him, and
interfered with his performance as a
APP.- 3 -
teacher. The complaint contends that
these actions violated Zemsky's rights
under the United States Constitution
and various federal civil rights
statutes. Zemsky also asserts federal
civil rights claims against a former
student who allegedly participated in
two of the assaults and state product
liability claims against the
manufacturer of "disappearing ink'' that
allegedly was squirted into his eyes
during one of the assaults.
The municipal defendants moved to
dismiss the complaint in its entirety.
The district court held that Zemsky had
failed to state a claim under 42 U.S.C.
§§ 1981, 1982, 1985, and 1986 (1982),
because he had not alleged that the
defendant's actions were motivated by
racial or class-based animus. In
addition, the court dismissed Zemsky's
APP.- 4 -
Section 1983 conspiracy claim for lack
of specificity and his Section 1983
defamation claim for failure to allege
a deprivation of a constitutionally
protected liberty or property
interest. The court also held that all
of Zemsky's Section 1983 claims based
on incidents that occurred more than
three years before the filing of his
complaint were time-barred. Finally,
the court dismissed sua sponte all
claims against the former student and
the "disappearing ink" manufacturer,
reasoning that the complaint did not
adequately allege any concerted action
between these private parties and
persons acting under color of state law.
The district court held that Zemsky
had stated a viable Section 1983 claim
against the municipal defendants for
deprivation of his liberty interest in
APP.- 5°
freedom from bodily harm. The court
stayed consideration of this clain,
however, pending the resolution of a
similar action brought by Zemsky in New
York Supreme Court, Kings County,
against the City of New York and the
Board of Education.
DISCUSSION
I
We turn first to the district
court's dismissal of Zemsky's claims
against the municipal defendants under
42 U.S.C. §§ 1981, 1982, 1985, and 1986.
| A plaintiff states a viable cause
of action under Section 1981 or 1982
only by alleging a deprivation of his
rights on account of his race,
ancestry, or ethnic characteristics.
Saint Francis College v. Al-Khazraji,
55 U.S.L.W. 4626, 4629 (U.S. May 18,
1987) (§ 1981); Shaare Tefila
APP.- 6 =
Congregation v. Cobb, 55 U.S.L.W. 4629,
4630 (U.S. May 18, 1987) (§ 1982);
Runyon v. McCrary, 427 U.S. 160, 167-68
(1976) (§ 1981); Jones v. Alfred H.
Mayer Co., 392 U.S. 409, 413 (1968) (§
1982); Keating v. Carey, 706 F.2d 377,
383-84 (2d Cir. 1983) (§ 1981); Glover
v. Tower, 700 F.2d 556, 558 (9th Cir.
1983) (§§ 1981, 1982), aff'd on other
grounds, 467 U.S. 914 (1984); Landrigan
v. City of Warwick, 628 F.2d 736, 739
n.l (lst Cir. 1980) (§ 1981); DeFrank
v. Pawlosky, 480 F. Supp. 115, 118 &
n.9 (W.D. Pa. 1979) (§§ 1981, 1982),
aff'd mem., 633 F.2d 209 (3d Cir.
1980). A plaintiff states a viable
cause of action under Section 19857
or 1986 only by alleging a deprivation
of his rights on account of his
membership in a particular class of
individuals. United Brotherhood of
APF.- / -
Carpenters & Joiners v. Scott, 463 U.S.
825, 834-35 (1983) (§ 1985(3)); Lowe v.
Letsinger, 772 F.2d 308, 311 (7th Cir.
1985) (§ 1985(2), (3)); Glover, 700
F.2d at 558 (§ 1985(3)); Kaylor v.
Fields, 661 F.2d 1177, 1184 (8th Cir.
1981) (§§ 1985(3), 1986); Landrigan,
628 F.2d at 739 n.1 (§§ 1985(3), 1986);
DeFrank, 480 F. Supp. at 118 & n.9 (§§
1985(3), 1986).
Because Zemsky did not allege that
he was deprived of his rights as a
result of any racial, ethnic, or class-
based animus on the part of the
defendants, the district court did not
err in dismissing his claims under
Section 1981, 1982, 1985, and 1986.
|
We turn next to the dismissal of
certain of Zemsky's claims against the
municipal defendants under 42 U.S.C. §
1983.
APP.- 8 -
The district court dismissed
Zemsky's claims that the defendants had
conspired to suppress evidence in
connection with his state court action
on the ground that the complaint "fails
to state, with any degree of parti-
cularity, the purpose of or any overt
acts perpetrated by defendants which
reasonably relate to the claimed
conspiracies.'' We have previously held
that a pro se complaint "containing
only conclusory, vague, or general
allegations of conspiracy to deprive a
person of constitutional rights cannot
withstand a motion to dismiss.'' Sommer
v. Dixon, 709 F.2d 173, 175 (2d Cir.)
(per curiam), cert. denied, 464 U.S.
857 (1983). We agree that Zemsky's
conspiracy claims are so "'vague and
unsupported by description of
particular overt acts,'' id., as to have
APP.- 9 -
warranted their dismissal by the
district court.
The étateice court also dismissed
Zemsky's Section 1983 claims arising
out of allegedly defamatory statements
by the municipal defendants. The
Supreme Court has held that an
individual whose reputation is injured
by the remarks of a public official,
but who suffers no resultant "tangible"
injury such as loss of employment as a
result of the defamation, is not
deprived of a liberty or property
interest protected by the due process
clause. Paul v. Davis, 424 U.S. 693,
699-710 (1976). Zemsky does not
contend that the defendants' allegedly
defamatory statements caused him to
suffer any such tangible injury.
Accordingly, the district court was
correct in dismissing his Section 1983
claims of defamation.
APP.- 10 -
The district court dismissed as
time-barred Zemsky's Section 1983
claims involving incidents that
occurred more than three years before
the commencement of this action. This
was also correct. See Okure v. Owens,
816 F.2d 45 (2d Cir. 1987).
III
The district court on its own
motion dismissed all claims against
Victor Vilareal, the former student who
allegedly committed two of the
assaults, and Loftus Novelty and Magic
Company, the manufacturer of the
"disappearing ink'' allegedly used in
one of the assaults.
A person who is not a government
official or employee acts act under
color of state law for purposes of
Section 1983 when "he has acted
together with or has obtained
APP.- li -
significant aid from state officials"
or has similarly engaged in conduct
attributable to the state. Lugar v.
Edmondson Oil Co., 457 U.S. 922, 937
(1982). See also Blum v. Yaretsky, 457
U.S. 991, 1003 (1982) (liability of
private party turns on "whether his
conduct has sufficiently received the
imprimatur of the State so as to make
it 'state' action for purposes of the
Fourteenth Amendment"). The complaint
does not allege that Loftus Novelty
acted in concert with or received any
significant assistance from the
municipal defendants. Furthermore, the
complaint makes only vague and
conclusory allegations as to any
relationship between Vilareal and the
municipal defendants. The district
court therefore did not err in
dismissing Zemsky's Section 1983 claims
against the two private defendants.
APP.- 12 -
We also conclude that the district
court properly dismissed Zemsky's state
law product liability claims against
Loftus Novelty. The company's alleged
failure to warn can hardly have been a
cause of the assault during which the
disappearing ink was thrown in Zemsky's
eyes. Other allegations concerning
Loftus' answers to inquiries about its
product are so vague and conclusory as
to a causal connection with the harms
allegedly suffered by Zemsky that they
must be dismissed.
IV
The district court relied upon
Colorado River Water Conservation
District v. United States, 424 U.S. 800
(1976), in staying consideration of
Zemsky's remaining Section i983 claims
against the municipal defendants. In
Colorado River, the Supreme Court
APP.- 13 -
recognized that, while "the rule is
that 'the pendency of an action in the
state court is no bar to proceedings
concerning the same matter in the
Federal court having jurisdiction,'"'
id. at 817 (quoting McClellan v.
Carland, 217 U.S. 268, 282 (1910)),
"exceptional'' circumstances may on
occasion "permit[] the dismissal of a
federal suit due to the presence of a
concurrent state proceeding for reasons
of wise judicial administration." Id.
at 818. See also Moses H. Cone
Memorial Hospital v. Mercury
Construction Corp., 460 U.S. 1, 14-16
(1983).
We have previously noted that
Colorado River and Cone identify six
factors to be considered in assessing
whether such exceptional circumstances
exist as to warrant a stay or
APP.- 14 -
dientecal? of a federal action in
favor of a concurrent state action:
the assumption by either [the
.federal or the state] court of
jurisdiction over any res or
property, the inconvenience of
the federal forum, the
avoidance of piecemeal
litigation, . . . the order in
which jurisdiction was
obtained[,] . . . whether state
or federal law supplies the
rule of decision, and whether
the state court proceeding will
adequately protect the rights
of the party seeking to invoke
federal jurisdiction.
Bethlehem Contracting Co. v.
Lehrer/McGovern Inc., 800 F.2d 325, 327
(2d Cir. 1986). We have also taken
note of the Court's admonition that the
decision whether to exercise
jurisdiction in such circumstances
"does not rest on a mechanical
checklist, but on a careful balancing
of the important factors as they apply
in a given case, with the balance
heavily weighted in favor of the
APP.- 15 -
exercise of jurisdiction." Id. (quoting
Cone, 460 U.S. at 16) (emphasis added).
Three of the six factors set forth
in Colorado River and Cone obviously
offer no support for the decision to
stay Zemsky's Section 1983 claims.
First, neither the state court nor the
federal court has assumed jurisdiction
over any res or property relevant to
this litigation. Second, because both
the federal court and the state court
are located in Brooklyn, the former is
no less convenient to the litigants
than the latter. Third, federal law
rather than state law provides the rule
of decision for Zemsky's Section 1983
claims.
The remaining factors identified in
Colorado River and Cone are insufficient
to overcome "'the heavy presumption
favoring the exercise of jurisdiction."
APP.- 16 -
Id. First, in this case, as in
Bethlehem Contracting, there is not an
identity of defendants in the state and
federal actions because the individual
school officials are not parties to the
state action. Accordingly, staying the
federal action does not necessarily
avoid piecemeal litigation. See id. at
328.
Second, with regard to the order in
which jurisdiction was obtained, the
Supreme Court has emphasized that
"priority should not be measured
exclusively by which complaint was
filed first, but rather in terms of how
much progress has been made in the two
actions."' Cone, 460 U.S. at 21. The
district court found that the state
action was farther advanced than the
federal action because "'the State Court
litigation has been in progress for
APP.- 1/7 -
almost two years and discovery has
steadily progressed.'' However, as the
municipal defendants acknowledge on
appeal, the state litigation has not
proceeded beyond the noticing of
discovery demands. See Brief for
Appellees at 10 & n. 6. There is no
indication that there has been any
response to any such demands. It thus
appears that the state litigation has
not progressed appreciably farther than
the federal litigation.
Finally, while the district court
found that the state proceeding would
adequately protect Zemsky's rights, we
have held that this factor is
significant only if it militates in
favor of federal jurisdiction. See
Bethlehem Contracting, 800 F.2d at
328. It is thus of little weight
here. Furthermore, the state
APP.- 18 -
proceeding might not adequately protect
Zemsky's rights against those
individuals who are parties only to the
federal proceeding. See id. at 328-29.
In sum, only one of the factors
identified in Colorado River and Cone
-- the relative but quite modest
progress of the state court action --
offers even a modicum of support for
the district court's stay of the
instant litigation. Balancing this
factor against the five remaining
factors, each of which either favors
the exercise of federal jurisdiction or
is essentially neutral, "with the
balance heavily weighted in favor of
the exercise of jurisdiction," Cone,
460 U.S. at 16, we conclude that the
district court abused its discretion in
staying this action.
[
APP.- 19 -
Accordingly, we reverse so much of
the district court's order as stayed
Zemsky's remaining Section 1983 claims
against the municipal defendants. The
case is remanded for further proceedings
consistent with this opinion.
APP.- 20 -
FOOTNOTES
* The Honorable Robert C. Zampano,
Senior United States District Judge for
the District of Connecticut, sitting by
designation.
1/ Defendant Alan J. Irgang is
principal of Franklin D. Roosevelt High
School. Defendants John Sisti and
Robert J. Leventhal are assistant
principals, and defendants Peter
Rosenberg and Xavier Francis Ruggiero
are deans.
2/ Zemsky asserts that defendant Victor
Vilareal threw a liquid in his eyes on
June 7, 1982, and squirted ''disappearing
ink'' in his eyes on January 10, 1983;
that another student threw a "hard
object'' at his head on December 13,
1983; that a student shot a liquid at
his face from a water gun on June ll,
1985; that a student "assaulted" him on
APP.- 21 -
September 1, 1985; and that two
students threw a stink bomb into his
classroom on November 22, 1985.
3/ Zemsky filed substantially similar
complaints in three separate actions
brought in the Eastern District of New
York. The district court consolidated
the actions on its own motion pursuant
to Fed. R. Civ. P. 42(a).
4/ The first clause of Section 1985(2),
which prohibits conspiracy to interfere
with federal court proceedings, does
not require a showing of class-based
discrimination. Kush v. Rutlege, 460
U.S. 719 (1983). However, Zemsky has
not alleged that the defendants '
conspired to interfere with any federal
proceeding.
5/ The Supreme Court has rejected any
distinction between a stay of federal
litigation and an outright dismissal
APP .- Zz -
for purposes of the exceptional
circumstances test. See Cone, 460 U.S.
at 27-28.
APP.- 23 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-——as ee ew ewe ewe Oe eee ee ee ee ee ee ee ee oe oe x
HARRY N. ZEMSKY, :
-against- :
THE CITY OF NEW YORK, et al., :
-—<—"—“Ss*e2@ ee ewe nwrenwn ew eee es Se Se ee eee ee ee ee ee ee ee oe x
ORDER
DOCKET No. 86-C-99
86-C-936
86-C-1437
The above captioned case is hereby
administratively closed without
prejudice to reinstatement to the
active calender upon application to the
Court.
/S/ Henry Bramwell
U. S&S. Be as
DATED: -BROOKLYN, NEW YORK
JUNE 27, 1986
APP.- 24 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-aenT ewer ewrewewewee ew ewe eee ert eer er ew er eee ee ee x
HARRY N. ZEMSKY, :
-against-
THE CITY OF NEW YORK, et al., :
-—eeeenwrewnenennunwneneee ewe eee ew ew ew ee ee ee ee ee x
ORDER
DOCKET No. 86-C-99
S$6-C-936 x
86-C-1437
The above captioned case is hereby
administratively closed without
prejudice to reinstatement to the
active calender upon application to the
Court.
/S/ HENRY BRAMWELL
Ms Ge Ds J.
DATED: -BROOKLYN, NEW YORK
JUNE 27, 1986
APP." £5 °
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ee ee ee ee ee ee x
HARRY N. ZEMSKY, ;
-against- :
THE CITY OF NEW YORK, et al., :
-<—8“"“"ese eee ese ee ee ee ee ee ee ee ee ee oe . 4
ORDER
DOCKET No. 86-C-99
86-C-936
86-C-1437 X
The above captioned case is hereby
administratively closed without
prejudice to reinstatement to the
active calender upon application to the
Court.
/S/ Henry Bramwell
Uv. S&S. Ds J.
DATED: -BROOKLYN, NEW YORK
JUNE 27, 1986
APP.- 26 -
all
i
August 14, 1986
Honorable Henry Bramwell
United States District Judge
Eastern District of New York
United States Court House
225 Cadman Plaza East
Brooklyn, N.Y. 11201
Re: Zemsky v. City of New York, et al.
86 Civ. 0099, 0936, 1437 (HB)
Dear Judge Bramwell:
Enclosed for your consideration is
a proposed order in the above-referenced
action. Also enclosed, for your
convenience, is a copy of the transcript
of the proceedings held June 27, 1986.
I received this transcript approximately
one week ago and I have served copies
of the transcript and proposed order on
Mr. Harry Zemsky, plaintiff pro-se, and
Joseph Conklin, Esq., attorney for
defendant Lotus Magic and Novelty Co.,
Inc.
APP.- 2/7
Respectfully submitted,
/s/
Alan M. Schlesinger
Assistant Corporation
Counsel
Enclosures
cc: Harry N. Zemsky
Joseph Conklin, Esq.
APP.- 28 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY, ss” /
Plaintiff
-against-
THE CITY OF NEW YORK, et al.,
Defendants.
nbbddbdbanaeeebeennebeesanboana x
ORDER
CV-86-0099 (HB)
CV-86-0936 (HB)
CV-86-1437 (HB)
Defendants, City of New York, Board
of Education of the City of New York,
Alan Irgang, Robert Leventhal, John
Sisti, Xavier F. Ruggiero, and Peter
Rosenberg, (''Municipal Defendants")
having moved this court for an order
dismissing the complaint in its
entirety as against Municipal
Defendants or, in the alternative,
staying all further federal proceedings
APP.- 29 -
with respect to the complaints herein
pending disposition of a prior state
court action and Municipal Defendants
having been represented by their
attorney, Frederick A.O. Schwarz, Jr.,
Corporation Counsel of the City of New
York (Alan M. Schlesinger, of counsel)
and plaintiff having appeared pro-se
and the matter having come on to be
heard on June 27, 1986 and due
deliberation being had thereon and upon
the Court's decision delivered from the
bench on June 27, 1986, it is
ORDERED that civil actions
numbers CV-86-0099 (HB), CV-86-0936
(HB), and CV-86-1437 (HB) be, and they
hereby are, consolidated and it is
further
ORDERED, Municipal
Defendants'motion to dismiss the
complaints herein with respect to
APP.- 30 -
plaintiff's claims pursuant to 42
U.S.C. sections 1981, 1982, 1985 and
1986 if granted and it is further
ORDERED that Municipal
Defendants'motion to dismiss the
complaints herein with respect to
plaintiff's claims pursuant to 42
U.S.C. section 1983 is granted except
to the extent that the complaints state
claims, not barred by the statute of
limitations, for violation of
plaintiff's liberty interest in freedom
from bodily injury and it is further
ORDERED that Municipal
Defendants’ motion to dismiss the
complaints herein with respect to
plaintiff's claims pursuant to 42
U.S.C. section 1983 for violation of
plaintiff's liberty interest in freedom
from bodily injury is denied and it is
further
APP.- 31 -
ORDERED that the complaints
against the private parties are
dismissed in their entirety and it is
further
ORDERED that all federal
proceedings with respect to the
complaints herein are stayed pending
disposition of plaintiff's state court
action and it is further
ORDERED that the Clerk of the
Court is directed to administratively
close civil action, numbered CV-86-0099
(HB), CV-86-0936 (HB), and CV-86-1437
(HB).
Dated: New York, New York
August , 1986
S/S Henry Bramwell
U.S.D.J.
APP.- 32 -
OFFICE OF THE CLERK —
SUPREME COURT OF THE UNITED STATES
WASHINGTON, D.C. 20543
September 9, 1987
Mr. Harry N. Zemsky
3030 Emmons Avenue
Brooklyn, New York 11235
Re: Harry N. Zemsky v. City of New
York, et al., No. A-192
Dear Mr. Zemsky:
Your application for an extension
of time within which to file a petition
for writ of certiorari and/or for
docketing an appeal in the above-
entitled case has been presented to
Justice Marshall, who on September 8,
1987, signed an order extending your
time to and including October 9, 1987.
A copy of the Justice's order is
enclosed.
Very truly yours,
JOSEPH F. SPANIOL, JR., CLERK
APP.- 33 -
By:
S/S
Edward L. Turner, Jr.
Assistant Clerk
th
Enc.
cc: (Ltr. only) New York City
Corporation Counsel
Joseph W. Conklin, Esq.
Clerk, U.S. Court of
Appeals for the Second
Circuit (Your Nos.
86-7614, 7616, 7618)
APP.- 34 -
SUPREME COURT OF THE UNITED STATES
NO. A-192
HARRY W. ZEMSKY,
Applicant,
v.
THE CITY OF NEW YORK, ET AL.
ORDER
UPON CONSIDERATION of the
application of applicant,
IT IS ORDERED that the time for
filing a petition for a writ of
certiorari and/or for docketing an
appeal in the above-entitled cause be
and the same is hereby, extended to and
including October 9 » 3987.
APP.=« 35 -
/s/ Thurgood Marshall
Associate Justice of the
Supreme Court of the United
States
Dated this 8th
day of September, 1987.
APP.- 36 -
3030 Emmons Avenue
Brooklyn, New York 11235
August 31, 1987
Clerk,
Supreme Court of the United States
1 First Street, N.E.
Washington, D.C. 20543
i) I am requesting an extension of
time to docket an appeal, or apply
for a writ of certiorari to the
Supreme Court of the United States,
from the decision of the U.S. Court
of Appeals for the Second Circuit
(Docket Nos. 86-7614; 86-7616;
86-7618; dated June 12, 1987;
attached).
2) I am seeking Supreme Court review
of decisions by the District and
Circuit Courts which exclude
introduction of evidence proving
the allegations in my complaints.
3) I believe that the decisions by the
lower courts:
APP.- 37 -
4)
b)
c)
d)
are in conflict with decisions
by the U.S. Supreme Court;
are in conflict with decisions
by other federal courts;
conflict with the Constitution
and laws of the United States
and New York State;
sanction wrongful and unlawful
practices by persons acting
under color of State laws,
effectively making those laws
violative of the Constitution
and laws of the United States
and New York State.
I am seeking an extension of time
to bring these issues before the
Supreme Court because:
a)
the necessity of doing so in
order to obtain justice became
apparent recently;
APP.- 38 -
b)
I will not be able to properly
prepare my papers for the Court
within the time specified by
Statute (28 U.S.C. 210l(c)), or
Rules of the Supreme Court
(12.1), (date of decision;
June 12, 1987; 90 days -
September 10, 1987);
As evidenced in the Circuit
Court, my efforts to answer
defendants' motions have been
severely hindered by lack of
expertise, unavailability of
resources, illness (especially
my eyes, injuries to which
precipitated this case), and
continued misconduct by
Municipal Defendants intended
to improperly and unlawfully
force the termination of this
case.
APP.~ 39 -
5) 1 note that I have not yet filed a
notice of appeal in this matter in
accordance with the Rules of the
Supreme Court (10.3), because the
Court of Appeals here does not
accept such appeals. (I hope to
sort this out within a few days,
and will immediately advise the
court.)
6) Defendants will not be unfairly
prejudiced by this extension.
7) I have served copies of this
application on the opposing counsel:
a) New York City Corporation
Counsel
100 Church Street
New York, New York
and
b) Joseph W. Conklin, Esq.
60 Broad Street
New York, New York
APP.- 40 -
Sincerely,
/s/
Harry N. Zemsky, Pro Se
3030 Emmons Avenue
Brooklyn, New York 11235
(718) 934-7358
APP.- 41 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff
NOTICE OF MOTION
-against- Index No. CV-86-0099
(HB)
THE CITY OF NEW YORK, et al.,
Defendants.
PLEASE TAKE NOTICE, that upon the
Affidavit of Alan M. Schlesinger sworn
to April 14, 1986, the Memorandum of
Law of Municipal Defendants and upon
all prior pleadings and proceedings had
herein, Municipal Defendants (City of
New York, Board of Education of the
City of New York, Alan I. Irgang, John
Sisti, Robert Leventhal, Peter
Rosenberg and Xavier Francis Ruggiero)
will move this Court, on April 25,
1986, at 10:00 a.m., or as soon
APP.- 42 -
thereafter as counsel may be heard, at
the Courthouse thereof, 225 Cadman
Plaza East, Brooklyn, New York, before
the Honorable Henry Bramwell, United
States District Judge, for an order
dismissing this action pursuant to Rule
12(b) (6) of the Federal Rules of Civil
Procedure and, in the alternative, for
an order staying all further federal
proceedings in the above-captioned
action pending disposition of
plaintiff's action presently before the
Supreme Court of the State of New York
and for such other and further relief
as the Court deems just and proper.
PLEASE TAKE FURTHER NOTICE, that
in the event that both of Municipal
Defendants' motions are denied,
Municipal Defendants will move this
Court for an order allowing Municipal
Defendants twenty (20) days in which to
APP.- 43 -
answer the amended complaint herein
pursuant to Rule 12(a) of the Federal
Rules of Civil Procedure.
PLEASE TAKE FURTHER NOTICE, that
pursuant to the motion rules of the
Honorable Henry Bramwell all briefs,
memoranda and affidavits in oppositions
to these motions shall be served and
filed by noon, Tuesday, April 22, 1986.
Dated: New York, New York
April 14, 1986
FREDERICK A.O. SCHWARZ, JR.
Corporation Counsel of the
City of New York
Attorney for Municipal Defendants
100 Church Street - Room 6C6
New York, N.Y. 10007
(212) 566-3030
By: {37
ALAN M. SCHLESINGER
Assistant Corporation Counsel
To: Clerk of the Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, N.Y.
APP.- 44 -
Harry N. Zemsky
Plaintiff Pro-Se
3030 Emmons Avenue
Brooklyn, N.Y. 11235
Loftus Novelty and Magic Company
Defendant
865 South 200 East
Salt Lake City, Utah
APP.- 45 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff
-against- Index No. CV-86-0099
(HB)
THE CITY OF NEW YORK, et al.,
Defendants.
(Chee adiee eee en Gaede x
STATE OF NEW YORK )
SS.:
COUNTY OF NEW YORK )
ALAN M. SCHLESINGER, being duly
sworn, deposes and says:
1. I am an Assistant Corporation
Councel in the Office of FREDERICK
A.O. SCHWARZ, JR., Corporation Councel
of the City of New York, attorney for
defendants City of New York, the Board
of Education of the City of New York
("Board of Education"), Alan I. Irgang,
John Sisti, Robert J. Leventhal, Peter
APP.- 46 -
Rosenberg and Xavier Francis Ruggiero
("Municipal Defendants"). I submit
this affidavit in support of Municipal
Defendants’ motion for dismissal of the
complaint in the above-captioned action
and, in the alternative, for a stay of
all Federal proceedings in this action
or, should both these motions be
denied, 20 days in which to answer the
complaint.
2. On April 30, 1984, plaintiff
commenced an action against the Board
of Education in the Supreme Court of
the State of New York, County of Kings,
alleging that on January 10, 1983 a
student threw a liquid into plaintiff's
eyes, that on June 7, 1982 the
plaintiff was sprayed in the eyes with
a liquid by a student while plaintiff
was in a classroom at Franklin Delano
Roosevelt High School ("FDR"), that
APP.- 47 -
employees of the Board of Education had
negligently failed to discipline
students and had failed to provide
proper security at FDR, that employees
of the Board of Education had engaged
in a conspiracy to conceal and suppress
evidence regarding the aforementioned
incidents, that employees of the Board
of Education had defamed and libeled
plaintiff and that the Board of
Education had violated plaintiff's
rights under the Due Process on of
the Fourteenth Amendment to the
Consitution. Plaintiff sought $31
million in damages from defendant Board
of Education. A copy of the May l,
1984 complaint is annexed hereto as
Exhibit "A".
3. On May 11, 1984, the defendant
Board of Education served an answer
with Demand For Bill of Particulars on
APP.- 48 -
a
Plaintiff. Defendant Board of
Education also served a Combined
Demand: Notice for Discovery,
Inspection and copying on that same
date. A copy of the May 11, 1984
Answer, Demand For Bill of Particulars
and Combined Demand: Notice for
Discovery, Inspection and Copying is
annexed hereto as Exhibit ''B"'.
4. On June 6, 1984, defendant
Board of Education received an "Amended
Complaint'' against the Board of
Education and the City of New York.
The Amended Complaint alleged that the
Board of Education had failed to
discipline students, had failed to
provide proper security at FDR, that
employees of the board of Education had
conspired to conceal and suppress
evidence, that employees of the Board
of Education had defamed plaintiff,
APP.- 49 -
that on December 13, 1983 plaintiff was
struck in the head by a hard object
thrown by a student who was apprehended
at the scene, that employees of the
Board of Education harassed and
threatened plaintiff by advising
plaintiff that he might be charged with
insubordination and sent to the Medical
Division, that Board of Education
sought to obstruct justice and that
plaintiff was denied both due process
of the law and the equal protection of
the laws under the Fourteenth
Amendment. Plaintiff demanded $120
million dollars in damages. A copy of
the Amended Complaint is annexed hereto
as Exhibit “c".
5. On June 22, 1984 defendants
Board of Education and City of New York
served an Answer, A Demand For a Bill
of Particulars and a Combined Demand:
APP.- 50 -
Notice For Discovery, Inspection and
Copying. A copy of the Answer, Demand
For a Bill of Particulars and Combined
Demand: Notice for Discovery,
Inspection and Copying is annexed
hereto as Exhibit "D".
6. In November, 1985 an ''Amended
Verified Complaint'' was received by
defendant Board of Education. This
action was alleged to be a "continued
complaint by plaintiff" related to
plaintiff's April, 1984 complaint
described in paragraph ''2'' herein and
annexed hereto as Exhibit ''A''. In the
"Amended Verified Complaint" plaintiff
alleged that on or about June 27, 1984,
employees of the Board of Education had
"maliciously'' delayed plaintiff's
salary check, that employees of the
Board of Education had defamed and
harassed plaintiff, that on October 3,
APP.- 5i -
1984, two students had accosted
plaintiff while plaintiff was in a
classroom at FDR, that employees of the
Board of Education concealed evidence
and obstructed justice, that employees
at the Board of Education failed to
discipline students and failed to
provide proper security at FDR and that
employees of the Board of Education
interfered with plaintiff's teaching
duties and wrongfully sought to
terminate plaintiff's teaching career.
Plaintiff reiterated previous
allegations regarding the incidents of
June 11, 1985 and again alleged
violations of the Due Process and Equal
Protection Clauses of the Fourteenth
Amendment. Plaintiff demanded $720
million dollars in damages. A copy of
the Amended Verified Complaint" is
annexed hereto as Exhibit "E".
APP.- 52 -
7. On December 19, 1985 defendant
Board of Education served an Answer,
Demand for a Bill of Particulars and
Combined Demand: Notice for Discovery,
Inspection and Copying. A copy of
these papers is annexed hereto as
Exhibit "F".
8. On January 9, 1986, plaintiff
obtained a summons in the instant
federal action.
9. During March, 1986, the
plaintiff served the Municipal
Defendants with the summons, the
complaint and an amended complaint in
the instant federal action. The core
of operative facts and the allegations
contained in the amended complaint
herein are nearly identical to those
alleged in the prior state court
complaints. See paragraphs "2", "4"
and "'6'' herein and Exhibits "A", '"'C"
and "E'' annexed hereto.
APP.- 53 -
10. Several of the allegations in
the complaint herein refer to events
which occurred more than three years
prior to January 9, 1986. See, e.g.,
paragraphs "9" and "10" of the Amended
Complaint. Causes of action arising
from events occurring more than three
years prior to January 9, 1986 are
barred by the three year statute of
limitations applicable to Civil Rights
actions and should be dismissed for
failure to state a claim pursuant to
F.R.C.P. 12(b)(6). Wilson v.
Garcia, U.S. , 105 &. St. 1938
(1976).
ll. To state a claim against a
municipality under section 1983
plaintiff must allege that the acts of
the municipal employees were taken
pursuant to an official municipal
policy, practice or custom. The
APP.- 54 -
amended complaint herein fails to
allege that the actions of any of the
employees of the Board of Education
were pursuant to an official municipal
practice, policy or custom.
Plaintiff's section 1983 claims against
the Board of Education and the City of
New York should therefore be dismissed
for failure to state a claim pursuant
to F.R.C.P. 12(b)(6). Monell v. New
York City Dept. of Social Services, 436
U.S. 658 (1978).
13. In order to state a claim
under section 1982 plaintiff must
assert that, due to plaintiff's racial
classification, he was denied the right
to transfer property. None of the
allegations in the amended complaint
refer to the right to transfer
property. Plaintiff's section 1982
claim must, therefore, be dismissed as
APP.- 55 -
against Municipal Defendants for
failure to state a claim pursuant to
F.R.C.P. 12(b) (6).
13. Plaintiff does not allege that
he is a member of any minority group or
other protected class. Plaintiff's
sections 1981, 1982, 1985 and 1986
claims should therefore be dismissed
for failure to state a claim pursuant
to F.R.C.P. 12(b) (6).
14. The complaint fails to allege
facts sufficient to show a deprivation
of any right protected by the
Constitution or laws of the United
States. Further, predeprivation
hearings would have been impractical in
plaintiff's case and postdeprivation
state tort remedies are available.
Plaintiff is thereby provided with all
the process due him under the
Fourteenth Amendment. Parratt v.
APP.- 56 -
a
Taylor, 451 U.S. 527 (1981).
Plaintiff's section 1983 claim should
therefore be dismissed pursuant to
F.R.C.P. 12(b) (6).
15. The complaint's conclusory
allegations of conspiracy are vague and
lack the particularity necessary to
state a claim under the Civil Rights
Act. Plaintiff's conspiracy claims
must therefore be dismissed for failure
to state a claim pursuant to F.R.C.P.
12(b) (6). See Morpurgo v. Board of
Higher Education, 423 F. Supp. 704
(S.D.N.Y. 1976).
16. In the event that the motion
for dismissal of the complaint pursuant
to F.R.C.P. 12(b)(6) is denied,
Municipai Defendants move this Court to
stay all further Federal proceedings in
this action pending disposition of the
prior state court action. There is an
APP.- 57 -
ongoing, two year old, state court
action arising from the same core of
operative facts which form the basis of
the instant complaint. For reasons of
judicial economy, the avoidance of
piecemeal litigation, the avoidance of
duplicative and burdensome litigation,
the ability of the state court to
comprehensively dispose of the issues
presented in the instant litigation and
in recognition of plaintiff's choice,
nearly two years ago, to commence a
state court action, the instant action
should be stayed pending disposition of
that state court action.
/S/
ALAN MAER SCHLES INGER
APP.- 58 -
Sworn to me this
14th day of April 1986
/s/
Notary Public
APP.- 59 -
Index No. CV-86-0099
(HB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff
-against-
THE CITY OF NEW YORK, et al.,
Defendants.
MUNICIPAL DEFENDANTS' MEMORANDUM
OF LAW IN SUPPORT OF THEIR MOTIONS
FREDERICK A.O. SCHWARZ, JR.
Corporation Counsel
100 Church Street,
NEW YORK, NY 10007
CARYN M. HIRSHLEIFER,
ALAN M. SCHLESINGER,
OF COUNSEL
APP.- 60 -
2 ae eS ___________ ______s S|
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff
-against- Index No. CV-86-0099
THE CITY OF NEW YORK, et al.,
Defendants.
MUNICIPAL DEFENDANT'S
MEMORANDUM OF LAW IN SUPPORT OF
THEIR MOTION FOR DISMISSAL AND,
ALTERNATIVELY, A STAY OF ALL
FURTHER FEDERAL PROCEEDINGS
Preliminary Statement
Plaintiff, pro-se, brings this
action against the City of New York,
the Board of Education of the City of
New York ("'Board of Education"), Alan
Irgang, Robert Leventhal, John Sisti,
Xavier Francis Ruggiero and Peter
Rosenberg ('"'Municipal Defendants") as
well as students at Franklin Delano
APP.- 61 -
Roosevelt High School ("FDR") and the
Lotus Novelty and Magic Company under
42 U.S.C. sections 1981, 1982, 1983,
1985, 1986! claiming that he was
deprived of his federal rights in
various ways while plaintiff was a
teacher at FDR. Included among
plaintiff's claims are deprivations of
due process of law, of the equal
protection of the laws, negligence in
the maintenance of proper security at
FDR, negligence in failure to
discipline students at FDR, various
undefined conspiracies, obstruction of
justice and concealing evidence.
Municipal Defendants sumbit this
memorandum in support of their motion
to dismiss the complaint against them
pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure on the
grounds that: (1) claims arising out of
APP.- 62 -
actions, inactions or conspiracies
alleged to have occurred more than
three years prior to the filing of the
summons and complaint herein are barred
by the applicable statute of
limitations; (2) claims allegedly
arising under sections 1981 and 1982
fail to state a claim since there is
not allegation that they are in any
manner motivated by racial animus; (3)
claims allegedly arising under section
1983 fail to state a claim since the
complaint fails to allege a deprivation
of any right protected by the United
States Constitution or Laws; (4) claims
allegedly arising under section 1985
and 1986 fail to state a cause of
action since there is no allegation
that they are in any manner related to
class based animus; and (5) section
1982 is wholly inapplicable to any of
the facts specified in the complaint.
APP.- 63 -
In the event that the Court denies
Municipal Defendants' motion for
dismissal of the complaint, Municipal
Defendants move this Court for a stay
of all further federal proceedings
pending the disposition of plaintiff's
state court action commenced in the
Supreme Court of the State of New York
arising out of the same facts and
circumstances which form the core of
operative facts in the instant case.
STATEMENT OF FACTS
Plaintiff is a teacher employed by
defendant Board of Education at
Franklin Delano Roosevelt High School
("FDR"). Plaintiff has begun a state
court action in the Supreme Court of
the State of New York. This action,
approximately two years old, arises out
of several alleged assaults on plaintiff
by several students at FDR and alleged
APP.- 64 -
actions, inactions. and conspiracies by
employees of the Board of Education in
connection with those assaults. In his
state action plaintiff has alleged that
certain employees of the Board of
Education were negligent in the
disciplining of students, were
negligent in failing to provide proper
security in FDR, had defamed plaintiff,
had obstructed justice, suppressed
evidence, engaged in unspecified
conspiracies to injure plaintiff,
interfered with plaintiff's proper
performance at FDR and violated both
the Due Process and Equal Protection
Clause of the Fourteenth Amendment to
the United States Constitution.
Plaintiff alleges in the instant
complaint that he was assaulted several
times by several different students at
FDR:
APP.- 65 -
1. On June 7, 1982, a student
threw an unspecified liquid into
plaintiff's eyes;
2. On January 10, 1983, the same
student threw what plaintiff
believes to be "disappearing ink"
into plaintiff's eyes;
3. On December 12, 1983, a second
student threw a "hard object" at
plaintiff striking plaintiff in the
head. The student was apprehended
by a school security guard;
4. On October 3, 1984, two
students "accost" plaintiff in an
unspecified manner in a classroom
at FDR.
5. On June 11, 1985, plaintiff was
struck in the face by a liquid from
a water pistol;
APP.- 66 -
6. On September 11, 1985, another
student "assaulted" plaintiff in an
unspecified manner; and
7. On November 22, 1985, two
students set off an "odor producing
device"
in plaintiff's classroom.
In addition, plaintiff alleges that
the Board of Education and several of
its employees made unspecified
defamatory and libelous statements at
various times regarding plaintiff, were
somehow negligent in enforcing school
discipline and rules, improperly rated
plaintiff's performance, concealed,
evidence in an unspecified manner,
conspired with the students in an
unspecified manner and encouraged
student misconduct through improper
disciplining of students. Plaintiff
further states that employees of the
Board of Education stated that
APP.- 67 -
plaintiff might be "charged with
insubordination and sent to the Medical
Division". Plaintiff also alleges that
Municipal Defendants violated his
rights to due process of law and to the
equal protection of the laws under the
Fourteenth Amendment. In paragraph 68
of his complaint plaintiff "notes" that
defendants conspired to deprive
plaintiff of unspecified federal rights
and privileges and immunities.
ARGUMENT
POINT I
PLAINTIFF HAS FAILED TO ALLEGE
FACTS SUFFICIENT TO SHOW A
VIOLATION OF A RIGHT PROTECTED
EITHER BY UNITED STATES CONSTITUTION
OR A FEDERAL STATUTE AND HIS
SECTION 1983 CLAIMS MUST THEREFORE
BE DISMISSED.
APP.- 68 -
Section 1983 protects individuals
against deprivations or rights |
guaranteed either by the United States
Constitution or by a federal statute.
Baker v. McCollan, 443 U.S. 137, 146
(1979). Section 1983 is not a general
tort law and does not remedy all claims
which may be cognizable under State
tort law. Parratt v. Taylor, 451 U.S.
527 (1981) ("Parratt'"'). Allegations of
mere negligence do not state a claim
for relief under section 1983 where the
section 1983 claim is grounded in the
Due Process Clause, the Equal
Protection Clause or the Eighth
Amendment's injunction against cruel
and unusual punishment. Daniels v.
Williams, U.S. , 106 S.Ct. 662
(1986); Arlington Heights v.
Metropolitan Housing Dev. Corp., 429
U.S. 252 (1977); Estelle v. Gamble, 429
APP.- 69 -
U.S. 97 (1976). Plaintiff's amended
complaint has failed to allege facts
which, if taken as true, would
establish a violation of a federal
right and his section 1983 claims must
therefore be dismissed pursuant to
F.R.C.P. 12(b) (6).
Plaintiff's allegations against
Municipal Defendants may, for purposes
of analysis, be divided into five
categories. First, plaintiff alleges
that the Municipal Defendants were
negligent in their disciplining of
students at FDR and in the maintenance
of security at FDR. Second, plaintiff
alleges that Municipal Defendant made
libelous and defamatory statements
regarding plaintiff at various times.
Third, plaintiff alleges that Municipal
Defendants engaged in an undefined
"conspiracy" against plaintiff. Fourth,
APP.- 70 -
——————————————————————*
the plaintiff states that he is the
victim of cruel and unusual punishment.
Fifth, plaintiff also states that he
has been denied the Equal Protection of
the Laws. These claims well be treated
seriatun.
The first category of plaintiff's
allegations is apparently grounded in
the Fourteenth Amendment's Due Process
Clause. Plaintiff seems to be
attempting to allege deprivations of
liberty and property without due
process of law. These claims must fail
since the complaint alleges mere
negligence in failing to properly
protect plaintiff from students at
FDR. Negligence claims will not serve
to establish a violation of the Due
Process Clause recognizable under
section 1983. Daniels v. Williams, _
U.S. _, 106 S.Ct. 662 (1986); Davidson
APP.- 71 -
v. Connor, , U.S. _, S.Ct. 668
(1986) (State prison officials
negligence in failing to protect prison
inmate from other inmates not
cognizable under section 1983) .>
With respect to the second category
of plaintiff's allegations, alleging
libel and defamation, it is clear that
the facts of this case do not state a
claim under section 1983. Many of
plaintiff's allegations in this second
category of allegations are related to
statements made to plaintiff by
employees of the Board of Education.
Communication to plaintiff of opinions
regarding plaintiff's conduct do not
rise to the level of a deprivation of
liberty without due process of law.
See Board of Regents v. Roth, 408 U.S.
564 (1972); Paul v. Davis, 424 U.S. 693
(1976).
APP.- 72 -
|
Paul v. Davis establishes that
defamation, standing alone, does not
deprive an individual of a "liberty" or
"property" interest within the meaning
of the Fourteenth Amendment's Due
Process Clause. There is, therefore,
no violation of the Due Process Clause,
and no section 1983 claim, in such
instances. See Paul v. Davis, 424 U.S.
at 712. Plaintiff's "interest in
reputation is simply one of a number
which the State may protect against
injury by virtue of its tort law.
Id.
Plaintiff does not contend that "as
a result of the state action complained
of, a right or status previously
recognized by state law has been
altered or extinguished."' Paul v.
Davis, 424 U.S. at 711. It is "this
alteration, officially removing a right
APP.- 73 -
or status from the recognition and
protection previously afforded by the
State, which [the Supreme Court] found
sufficient to invoke the procedural
guarantees contained in the Due Process
Clause of the Fourteenth Amendment ."'
Id. Since this necessary "alteration
or extinguishment" factor is absent
from the instant case, the defamation
allegations of the complaint fail to
state a claim for relief under section
1983.
Furthermore, any deprivation of
liberty which may be occurred as a
result of statements made by employees
of Municipal Defendants may be remedied
by post deprivation tort actions in
State court. It would have been
impractical, if not impossible, to
provide a predeprivation hearing in the
instant case with respect to such
APP.- 74 -
statements and a post deprivation
hearing is available under state tort
ie Plaintiff has, therefore, been
provided with all the process due him
under the Fourteenth Amendment.
Parratt, 451 U.S. at 541, 543; Hudson
v. Palmer, U.S. , 104 §.Ct. 3194
(1984).
The third category of plaintiff's
allegations, which broadly alleges the
existence of a conspiracy fails to
state a claim under section 1983
because these allegations lack
sufficient specificity. '[I]n the
Second Circuit, complaints based on the
conspiracy provisions of the Civil
Rights Act cannot rest on vague and
conclusory allegations but must allege
with at least some degree of
particularity overt acts which
defendants engaged in which were
APP.- 73 -
reasonably related to the promotion of
the claimed conspiracy.'' Morpurgo v.
Board of Higher Education, 423 F. Supp.
704, 713 (S.D.N.Y. 1976), quoting,
Powell v. Workmen's Compensation Board,
327 F.24 131, 137 (2d Cie. 1964).
Plaintiff fails to allege the identity
of the participants in the conspiracy,
the purpose of the conspiracy, what
acts are related to the conspiracy and
how those acts are "reasonably related
to the promotion of the claimed
' The naked assertion of a
conspiracy.'
conspiracy to violate undefined rights
cannot suffice to state a claim under
section 1983.
The fourth category of plaintiff's
allegations is also spurious.
Plaintiff alleges that he was subjected
to cruel and unusual punishment in
apparent violation of the Eighth
APP.- 76 -
Amendment. Plaintiff is clearly
outside the orbit of the Eighth
Amendment because plaintiff was not in
the custody of the state. Plaintiff
also fails to allege that any official
of the state, or any individual acting
with an official of the state inflicted
any "punishment" upon plaintiff.
Estelle v. Gamble, 429 U.S. 97 (1976).
Finally the fifth category of
plaintiff's allegations, regarding
violations of the Equal Protection
Clause also fails to state a claim
under section 1983. To state a section
1983 claim grounded in the Equal
Protection Clause plaintiff must allege
that he was invidiously discriminated
against and that he was treated
differently from others similarly
situated. Plaintiff does not allege
that he is a member of any particular
APP.- 77] -
class. Plaintiff does not assert that
there is a classification system of any
kind established by the government nor
does he assert that he is being treated
differently from other individuals
similarly situated. Furthermore,
plaintiff fails to show any intentional
deprivations of his right to equal
protection under the laws. Daniels v.
Williams, supra; Washington v. Davis,
426 U.S. 229 (1976).
Finally, the Supreme Court has held
that allegations of an official
municipal custom, policy or practice
related te the deprivation of
plaintiff's rights are necessary in
order to state a claim against a
municipality under section 1983. The
amended complaint herein is completely
devoid of any allegations suggesting
that the individual defendants acted
APP.- 78 -
iia
pursuant to an official municipal
policy, custom or practice of the Board
of Education. The plaintiff's section
1983 claims against the City of New
York and the Board of Education cannot
stand in the absence of pleadings
regarding the official policies,
customs or practices of both of these
defendants.“ Monell v. New York City
Department of Social Services, 436 U.S.
658 (1978); see, also, Pembaur v.
Cincinnati, U.S. , 54 U.S.L.W.
4289 (3/25/86); Batista v. Rodriquez,
702 F.2d 393, 397 (2d Cir. 1983).
For all of the above reasons
plaintiff's complaint fails to state a
claim for which relief can be granted
pursuant to section 1983 and must
therefore be dismissed.
APP.- 79 =
POINT II
PLAINTIFF'S CLAIMS PURSUANT TO
SECTIONS 1981, 1982, 1985 and 1986
MUST BE DISMISSED SINCE THERE IS
NO CLASS BASED DEPRIVATION OF
PLAINTIFF'S RIGHTS ALLEGED
Section 1981, ensures that all
persons will enjoy ''the full and equal
benefit of all laws and proceedings for
the security of persons and property as
is enjoyed by white citizens..." 42
U.S.C. § 1981. This section applies
only to racially motivated deprivations
of individual rights. Runyon v.
McCrary, 427 U.S. 160 (1976).
Deprivations based on the nonracial
characteristics of an individual are
not remediable under section 1981. Id.
at 170. In the instant case,
plaintiff's complaint is entirely
APP.- 80 -
devoid of any indication that any of
the acts complained of were racially
connected. In the absence of this
essential racial nexus all of
plaintiff's claims under section 1981
must be dismissed.
Section 1982 protects an
individual's right to inherit,
purchase, lease, sell, hold and convey
real and personal property. None of
the allegations contained in the
complaint concern the right to transfer
property of any kind and section 1982
is, therefore, wholly inapplicable to
the instant case. As with section
1981, allegations of racial causation
are necessary to state a claim under
section 1982. Plaintiff's claims under
section 1982 are fatally defective for
failure to allege facts indicating that
the acts complained of were racially
APP.- 81 -
motivated. See Georgia v. Rachel, 384
U.S. 780 (1966); Fraser v. Doubleday
and Company, Inc., 587 F. Supp. 1284
(S.D.N.Y. 1984). For these reasons the
complaint fails to state a claim under
section 1982.
Sections 1985 and 1986 protect
individuals from conspiracies to
deprive them of their rights if the
deprivation is motivated by some class
based animus. United Board of
Carpenters and Joiners of America v.
Scott, 463 U.S. 825 (1983). A
violation of section 1985 occurs only
if the alleged conspiracy is "for the
purpose of depriving, either directly
or indirectly, any person or class of
persons of the equal protection of the
laws, or of equal privileges and
immunities under the laws .. ."' Id at
829. While the class need not be
APP.- 82 -
racial in character a relationship
based upon a commercial, economic or
professional nexus will not suffice to
" for
establish the requisite "class
purposes of sections 1985 and 1986. Id
at 838. The complaint in the instant
case does not allege membership in a
class recognizable under sections 1985
and 1986. Plaintiff's causes of action
pursuant to these statutes must
therefore be dismissed.
Plaintiff's claims of obstruction
of justice refer to alleged
interferences with state, and no
federal, administration of justice.
These claims must, therefore, proceed
under the second rather than the first
clause of section 1985(2). Plaintiff's
failure to allege any class based
animus with respect to these claims
requires that they be dismissed for
APP.- 83 -
failure to State a claim. See Kush v.
Rutledge, 460 U.S. 719, 722-723 (1982).
POINT III
IN THE EVENT THAT THE MOTION TO
DISMISS IS DENIED ALL FURTHER
FEDERAL PROCEEDINGS SHOULD BE
STAYED PENDING DISPOSITION OF STATE
COURT ACTIONS.
While federal courts have
jurisdiction over the federal claims
alleged in the instant complaint it is
"well settled that a district court is
‘under no compulsion to exercise that
jurisdiction, Brillhart v. Excess Ins.
Co., 316 U.S. 491, 494, 62 S.Ct. 1173,
1175, 86 L. Ed. 1620 (1942), where the
controversy may be settled more
expeditiously in the state court."
Will v. Calvert Fire Insurance Co., 437
U.S. 655, 662-663, (1978). ''The
APP.- 84 -
i
decision whether to defer to the
concurrent jurisdiction of a state
court's discretion."' id. at 664. See,
also, Colorado River Water Conservation
District v. United States, 424 U.S.
800, 818 (1976) ("Colorado River").
The power of the District Court to stay
this action is applicable in instances
in which a federal section 1983
proceeding parallels a state court
action. See, e.g., Kelser v. Anne
Arundel County Dept. of Social
Services, 679 F.2d 1092 (4th Cir.
1982). The instant controversy,
already the subject of an advanced
action in the state courts, should be
stayed pending a decision of those
state court proceeding.
In Colorado River, the Supreme
Court held that a stay of federal
proceedings may be granted if, in the
APP.- 85 -
discretion of the District Court, the
circumstances justify the stay. 424
U.S. at 818-20. The Supreme Court
identified factors which should be
considered by the District Court
including: the avoidance of piecemeal
litigation; the convenience of the
forum; the order in which jurisdiction
was obtained in the state and federal
forums; the extent to which the federal
proceedings have progressed and the
degree to which the issues involved are
local in character. Id. See Moses H.
Cone Memorial Hospital v. Mercury
Construction Corp., 460 U.S. 1 (1983)
("Cone"). Cone added two other factors
to be weighed in consideration of a
stay of federal proceedings: (1)
whether federal or state law provided
tne rule of decision; and (2) whether
the state court proceeding will
APP.- 86 -
ie
adequately protect the rights of the
parties. 460 U.S. at 23-27. The
decision to stay federal proceedings
"does not rest on a mechanical
checklist, but on a careful balancing
of important factors as they apply in a
given case, . . .' Cone, 460 U.S. at
16. In the instant case, the dangers
of piecemeal litigation are present
since there are several advanced state
court actions while the federal
proceeding is still in the pleadings
stage. Furthermore, the state court
tort action arises out of the same core
of operative facts as the instant
federal action. The factual inquiries
in both the state and federal actions
are nearly identical and involve the
same events, persons, places and
documents. If both actions are allowed
to proceed there will be a complete
APP.- 87 -
duplication of the efforts of all of
the parties, witnesses and the courts.
The state court action, which has
already progressed into the discovery
stage, can afford plaintiffs
comprehensive and complete relief if
the plaintiffs are successful.
Considerations of wise judicial
economy, avoidance of multiple
overlapping litigation and the two year
old choice by plaintiff to pursue his
tort claims in the state forum require
that the federal action be stayed
pending disposition of the state claims.
The discretion to stay federal
proceedings pending resolution of
parallel state proceedings is akin to
the District Judge's discretion in
setting his calendar. In Will v.
Calvert Fire Insurance Co. the Supreme
Court recognized that the enormous case
APP.- 88 -
load of the federal courts requires
that they be afforded wide latitude
with respect to their calendars. 437
U.S. 655 (1978). The Supreme Court, in
holding that a writ of mandamus should
not issue to force a District judge to
hear claims which that District Judge
had deferred pending resolution of a
contemporaneous state action, stated
that:
No one can seriously contend that a
busy federal trial judge,
confronted both with competing
demands on his time for matters
properly within his jurisdiction
and with inevitability of lawyers,
parties, and witnesses, is not
entrusted with a wide latitude in
setting his own calendar.
437 U.S. at 665.
APP.- 89 -
In a recent case, Arkwright-Boston
Manufacturers Mutual Insurance Company
v. City of New York, the Second Circuit
noted that a failure to stay federal
proceedings where a parallel state
proceeding has been begun would raise
the spectre of multiple inconsistent
dispositions which would
breed additional litigation on
assertions of claim and issue
preclusion. This could burden the
parties for years to come. The
existence of such concurrent
proceedings creates the serious
potential for spawning an unseemly
and destructive race to see which
forum can resolve the same issues
first [which would be] prejudicial,
to say the least, to the possibility
of reasoned decisionmaking by
either forum. Arizona v. San
APP.- 90 -
Carlos Apache Tribe of Arizona, 463
U.S. 545, 103 S.Ct. 3201, 3214, 77
L.Ed 837 (1983).
Arkwright, 762 F.2d 205, 211 (1985).
In this context, it should be further
noted that the Supreme Court has held
that there is no right to have the
federal claims raised in a section 1983
action decided by a federal court.
Migra v. Warren City School District,
104 S.Ct. 892 (1984). The Second
Circuit in Arkwright upheld the grant
of the stay citing the Colorado River
doctrine, waste of judicial resources,
the duplication of effort, the
necessity of avoiding piecemeal
litigation, the progress made in the
state courts and the substantive rules
of law involved. Id. Similar consider-
ations, are present in the instant case
together with the fact that plaintiff
had chosen a forun.
Ar?P.- Fi -
"A stay in this case will
effectively conserve court resources
while avoiding premature rejections of
the litigants'access, as specified by
Statute, to a federal forum.'' Mahaffey
v. Bechtel Associates Professional
Corporation, D.C., 699 F.2d 545 (D.C.
Cic. 1963).
CONCLUS ION
WHEREFORE, Municipal Defendants
respectfully request that the
complaint be dismissed, that, in
the event that the complaint is not
dismissed, all further federal
proceedings in this action be
stayed pending the disposition of
the prior state action and that the
Court grant such other and further
relief as the Court deems just and
proper.
APP.- 92 =
Dated: New York, New York
April 14, 1986
Respectfully submitted,
FREDERICK A.O. SCHWARZ, JR.
Corporation Counsel of the City
of New York
Attorney for Municipal
Defendants
100 Church Street - Room 6C6
New York, N.Y. 1000/7
(212) 566-3030
By: /s/
ALAN M. SCHLES INGER
CARYN M. HIRSHLEIFER,
ALAN M. SCHLESIGNER,
Of Counsel
APP.- 93 -
FOOTNOTES
All section references are to United
States Code, Title 42, unless
otherwise indicated.
Plaintiff may be attempting to
invoke the pendent jurisdiction of
the Court. The amended complaint
fails to state a claim upon which
relief may be granted, and must
therefore be dismissed pursuant to
F.R.C.P. 12(b) (6), pendent
jurisdiction is unavailable in the
instant case.
Several of plaintiff's allegations
relate to events which occurred
more than three years prior to the
commencement of the instant action
and are therefore time-barred.
Wilson v. Garcia, uU.s. » 205
—
S.Ct. 1938 (1985); Runyon v.
APP.- 94 -
McCrary, 427 U.S. 160, 179-182
(1976). See, e.g., Amended
complaint paragraphs ''9" and ''10"
relating to the June 7, 1982
incident.
The Board of Education is not an
agency of the City of New York but
is rather a separate entity created
by the State of New York. See New
York Education Law §§ 2550 et seq.
The City of New York cannot there-
fore be held responsible for the
actions of the Board of Education
and since none of the allegations
in the complaint relate to actions,
inactions or conspiracies by the
City of New York its agents or
employees, all complaints against
the City of New York should be
dismissed.
AP? .- 95 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff
-against- CV-86-0099
THE CITY OF NEW YORK, et al.,
Defendants.
United States Courthouse
Brooklyn, New York
June 27, 1986
10:00 o'clock a.m.
pk rE OR E:
HONORABLE HENRY BRAMWELL, U.S.D.J.
PERRY AUERBACH
Official Court Reporter
APPEARANCE S:
HARRY N. ZEMSKY
Plaintiff, pro se
FREDERICK A. O. SCHWARZ,
Corporation Counsel of the City of
New York
Attorneys for Defendants
APP.- 96 -
————$$$$$£-$§€-_ Oe
BY: ALAN M. SCHLESINGER, ESQ.
Assistant Corporation Counsel
APP.- 97 -
THE CLERK: Zemsky versus the City
of New York.
MR. SCHLESINGER: Good morning,
your Honor.
THE COURT: Yes, Sir.
MR. ZEMSKY: I'm Harry Zemsky, the
plaintiff.
THE COURT: Anything additional
that you might care to say, Mr. Zemsky?
MR. ZEMSKY: Well, I came here on
the chance that a corporation counsels
office would be here. I have not
submitted my answer to their motions
yet and I haven't been able to be fully
prepared. I've had ample time certainly
but there have been a iot of things
that have been happening and they have
kind of --
THE COURT: You're representing
yourself aren't you?
MR. ZEMSKY: Yes.
APP.- 98 -
THE COURT: I've gone over the
papers. I don't know if there's much
additional that might be added. In
fact, I have a decision on the matter
unless there’s something that should
otherwise be done.
MR. ZEMSKY: Well, I don't know
what your decision is. I went over the
papers myself, obviously, and my answer
would pretty simply point out that the
affidavit and Memorandum of Law that
they submitted in support of their
motions were personally based upon
misstatements in the complaint itself.
For example, they keep using the
term negligence, negligence, et cetera.
I went through that three times and I
could not find it there. They tried to
apparently make a negligence case out
of this and to make it properly belong
in the State Court.
APP.- 99 -
But this is a civil rights issue based
on a U.S. Code, what is it, 1981, '82,
"83, '85, and '86.
I'm obviously not an attorney, so l
had a great deal of difficulty getting
the information.
THE COURT: Is anybody in the State
Court -- are you representing yourself
there?
MR. ZEMSKY: Yes. The State Court
proceeding, despite what the
Corporation Counsel has said, hasn't
gone anywhere. They're much more
advanced there. I've never really
spoken to corporation counsel on that
issue. I filed the complaints and the
summons, et cetera, primarily to
preserve my rights under the statute of
limitations.
THE COURT: What I may do, Mr.
Zemsky, at this point the Court has
APP.- 100 -
gone over the papers and I may put the
Court's opinion on the record and it
will be of assistance to you and to the
corporation counsel and it will help
this thing to move under the circun-
stances. So you be seated right there
and you can be seated.
MR. SCHLESINGER: Thank you, your
Honor.
THE COURT: All right.
Plaintiff Harry N. Zemsky, pro se,
has commenced three related actions
against the City of New York, the Board
of Education of the City of New York,
and several of its employees, certain
students at Franklin Delano Roosevelt
High School, and the Lotus Novelty
Company purporting to allege violations
of the federal constitution, various
federal civil rights laws, and the New
York State tort law.
APP.- 101 -
This morning the municipal
defendants (the City, the Board of
Education and individual defendants
Irgang Leventhal, Sisti, Ruggiero and
Rosenberg), move to dismiss the
complaint in civil action 86-99 on
various grounds pursuant to Rule 12(b)
Federal Rules of Civil Procedure.
In the event the Court denies all
or part of the motion to dismiss, the
municipal defendants further request
that federal proceedings be stayed
pending a disposition of a related case
filed by the plaintiff in State Court.
Although plaintiff expressed a
desire to respond to these motions, and
was given several opportunities to do
SO, no opposition has yet been received
by the Court. The relevant facts are
as follows:
APP.- 102 -
Plaintiff is a teacher employed by
the Board of Education at FDR High
School in Brooklyn. On April 30th,
1984 plaintiff commenced a civil action
against the Board of Education and the
City in the Supreme Court of the State
of New York alleging that he had, been
assaulted by students on three separate
occasions and that employees and
officials of the school refused to
discipline the offending students,
failed to provide adequate security or
to consider legitimate grievances,
defamed and abused him, obstructed
justice, suppressed evidence, conspired
against him, and interfered with his
performance as a teacher. The assaults
referred to in the state complaint
allegedly occurred on June 7th, 1982,
January 10th, 1983 and December 13th,
1983. Most of the allegations in
APP.- 103 -
plaintiff's state complaint sound in
tort; however, plaintiff also alleges
that the defendants' repeated acts of
misconduct were intended to deprive him
of life, liberty and property with due
process and equal protection of the
laws in violation of the 14th Amendment
of the United States Constitution.
Plaintiff subsequently amended his
state complaint on two occasions to add
allegations of additional assaults on
October 3rd, 1984 and June llth, 1985
and of further efforts to harass him.
On January 9th, 1986, plaintiff
filed civil action 86-99, with this
Court in which he restates in somewhat
greater detail the tortious conduct he
alleged in the state action. He
realleges the facts surrounding the
five assaults listed in the state
complaint and further alleges that he
APP.- 104 -
was again assaulted on September llth
and November 22nd, 1985, and that
defendants conspired to impede the
progress of his state action.
Plaintiff asserts that federal
jurisdiction is based on 42 U.S.C.
Sections 1981, 1982, 1983, 1985, 1986.
However, specific violations of his
federal rights ave mentioned only in
two of the 76 paragraphs of the
complaint. In paragraph 50, plaintiff
states that '' inasmuch as the injuries
and losses wrongfully caused the
plaintiff were inflicted under color of
law... [they] were intended to deprive
the plaintiff of life, livelihood and
property without due process of law;
and, furthermore, were intended to deny
plaintiff equal protection of the laws,
and to obstruct plaintiff's efforts to
obtain justice.'"' In paragraph 51
APP.- 105 -
plaintiff asserts that defendants'
actions violated the 14th Amendment to
the constitution.
Subsequently, plaintiff opened two
additional federal cases designated
respectively as civil action 76-936 and
86-1437 . The complaints in these
actions are identical to civil action
86-99, except that plaintiff changed
the language in several of the
paragraphs, and alleges additional
tortious acts by defendants John Sisti,
Alan Irgang, and the City.
The municipal defendants have moved
to dismiss the complaint in 86-99 on
several grounds. They contend that:
One, claims arising out of the
actions or inactions alleged to have
occurred prior to January 9th, 1983 are
time-barred by the applicable three
year statute of limitations;.
APP.- 106 -
Two, claims allegedly arising under
sections 1981 and 1982 fail to state a
claim since there is no allegation that
they were initiated by racial animus;
Three, claims arising under 1985
and 1986 fail to state a course of
action because there is no allegation
that they are related to class base
animus, and;
Four, claims allegedly arising
under Section 1983 fail to state a
claim because mere negligence cannot
work as a violation of constitutionally
protected rights. Since the three
federal suits instituted by plaintiff
clearly involve common questions of law
and fact, the Court, on its own motion
consolidates the cases pursuant to Rule
42(a) of the Federal Rules of Civil
Procedure and considers the municipal
defendants' motions as applying to all
APP.- 107 -
three actions. Additionally, the Court
on its own motion considers whether
plaintiff has stated a cause of action
against the private party defendants.
Turning first to the arguments
raised by the municipal defendants, the
Court concludes, after careful study of
the three complaints, that it is in
agreement with all of defendants'
arguments except the last. Defendants
correctly assert that plaintiff has
failed to state any claim under sections
1981, 1982, 1985 or 1986. Sections
1981 and 1982 apply only to racially
motivated deprivations of individual
rights, while sections 1985 and 1986
protect individuals from conspiracies
to deprive them of their rights if the
deprivation is motivated by some class
based animus. Here, plaintiff makes no
allegations in any
APP.- 108 -
of his complaints, that defendants'
actions were racially motivated or
class-based. Thus, plaintiff fails to
state a claim under any of these
sections.
Defendants are also correct in
several of their attacks on plaintiff's
section 1983 claims. First, plaintiff
alleges that defendants engaged in a
conspiracy to injure plaintiff by
destroying, concealing and suppressing
evidence in connection with plaintiff's
State court action. As defendants
contend, this claim fails because it
lacks specificity. In this Circuit,
civil rights conspiracy allegations
must be supported by more than vague
and conclusory statements. Although
plaintiff alleges the existence of
various conspiracies, he fails to
State, with any degree of
APP.- 109 -
particularity, the purpose of or any
overt acts perpetrated by defendants
which reasonably relate to the claimed
conspiracies. Plaintiff's naked
assertions regarding various con-
spiracies do not suffice to state a
claim under Section 1983.
Second, as defendants point out,
plaintiff may not state a claim under
Section 1983 based on plaintiff's
alleged libelous and slanderous state-
ments. In Paul against Davis, the
Supreme Court held that defamation
alone does not deprive én individual of
a liberty or property interest within
the meaning of the 14th Amendment.
Plaintiff's interest in reputation, the
Court noted, is simply one of a number
of interests which the state may protect
against injury by virtue of its tort
law. Thus, any deprivation which
APP.- 110 -
may have occurred to him as a result of
the alleged defamation may be corrected
by the post-deprivation remedies
provided by this state.
Finally, the applicable statute of
limitations in a Section 1983 suit is
three years. Thus, defendants argue,
plaintiffs claims may not be based on
acts which occurred prior to January
9th, 1983.
Even though plaintiff's Section
1983 claim is deficient in the above
stated ways, the Court cannot agree
with defendants that plaintiff's
Section 1983 claim is totally lacking
in merit. Plaintiff has a liberty
interest in freedom from bodily
injury. He alleges that this interest
was violated by defendants' failure to
protect him from student assaults and
APP.- 1ll -
to properly discipline the students
involved in the assaults.
Defendants’ argument that the due
process clause is not implicated by
negligent conduct ignores the fact that
plaintiff repeatedly asserts that
defendants' actions were intentional.
Consequently, Daniels against
Williams, the recent Supreme Court case
cited by defendants, is not controlling.
Thus, the Court must conclude that
plaintiff has stated a viable Section
1983 claim against the municipal
defendants. The same cannot be said,
however, of plaintiff's allegations
against the private party defendants,
the students at FDR and Lotus Novelty &
Magic Co., the manufacturer of
disappearing ink which was allegedly
squirted into plaintiff's eye in one of
the assaults. In order for a valid
APP.- 112 =
claim to be stated under Section 1983
against a private party, the plaintiff
must allege, in sufficient detail, a
conspiracy between the private parties
and persons acting under color of state
law. As stated above, plaintiff's
allegations of conspiracy are vague oni
conclusory. Therefore, no claim is
Stated against the private parties.
Having narrowed the federal issues
raised by plaintiff in his federal
complaint to a single cause of action
under Section 1983 the Court must now
address defendants' requests that
federal proceedings be stayed pending
disposition of the state action. In
Colorado River Water Conservation
District against the United States, the
Supreme Court announced a narrow
exception to the duty of a Federal
Court to exercise the jurisdiction
APP.- 113 -
granted to it. In the interest of
"wise judicial administration" a
Federal Court may sometimes decline to
proceed with a case properly before it
when parallel litigation is pending.
Here, the state action is parallel
because it evolves out of the same
facts as the federal actions. In both
actions, plaintiff raises predominantly
state law tort claims and adds almost,
as a postscript, that defendants'
actions violated his federal rights.
The federal allegations in the state
action are only slightly less specific
than those raised here. Moreover, the
fact that the individual defendants are
not named in the caption of the state
suit is inconsequential. The state
complaint alleges the same claims
involving the same defendants named in
the federal complaints and, thus, could
APP.- 114 -
be easily amended to include the
individual municipal defendants.
Under Colorado River, abstention is
proper only in exceptional
circumstances after consideration of a
number of factors. In applying these
factors to the cases at hand, the Court
believes there are sufficient grounds
to impose a stay. First, the State
Court litigation las been in progress
for almost two years and discovery has
steadily progressed. In contrast, the
federal suits have not advanced beyond
the pleadings and the motion to dismiss.
Second, proceeding with these
actions will result in piecemeal
litigation. The state and federal
actions are nearly identical, requiring
the same witnesses to be called in both
proceedings. Maintaining suits in two
APP.- 115 -
forums will therefore waste judicial
resources and invite duplicative effort.
Third, plaintiff's complaints raise
predominantly State law issues. Because
plaintiff has stated a Section 1983
claim, the Court could hear the State
law claims under the doctrine of
pendent jurisdiction. But, since these
claims could not be brought here in
their own right, this Court's juris-
diction is secondary to the State's on
the pendent claims. Moreover,
jurisdiction over Section 1983 claims
is not exclusively vested in the
federal courts. Thus, the presence of
a federal issue does not require that
the Court retain its jurisdiction. In
this case, the source of law factor
weighs in favor of a stay.
Finally, the State Court action can
adequately protect plaintiff's rights.
APP.- 116 -
As stated above, state courts have
concurrent jurisdiction. Moreover,
since the state action was filed almost
two years before the first federal
action, some of the claims which are
time-barred here are viable in state
court. In sum, these laws fall within
the framework .of the exceptional
circumstances test. Upon careful
balancing of the relevant factors, the
Court concludes that the three federal
actions must be stayed pending
disposition of the State Court action.
Accordingly, the motion to dismiss
of the municipal defendants is GRANTED
as to plaintiff's claims under 42
U.S.C. sections 1981, 1982 and 1985 and
1986, but DENIED as to plaintiff's
claim under 42 U.S.C. Section 1983. On
the Court's own motion, the complaint
APP.- 117 -
is DISMISSED in its entirety as against
the private defendants.
Finally, the motion of the
municipal defendants to stay the
remaining claims against them is
granted. The Clerk of the Court is
directed to administratively close
civil actions numbers 86-99, 86-936,
and 86-1437 pending further order of
the Court.
The Corporation Counsel is
instructed to order a copy of the
Court's decision from the reporter and
to provide the plaintiff with a copy of
the Court's decision.
MR. SCHLESINGER: Thank you, your
Honor.
THE COURT: Perfectly welcome.
You'll get a copy of the decision.
MR. SCHLESINGER: I will serve that
within a week of receipt.
APP.- 118 -
THE COURT: Yes, sir.
MR. ZEMSKY: I should add that just
yesterday I filed a fourth federal case.
THE COURT: Filed one yesterday?
MR. ZEMSKY: Yes. Because I've
been trying to catch the --
THE COURT: I'11 look at it.
MR. ZEMSKY: I did not include all
the causes of action.
THE COURT: I will look at it, Mr.
Zemsky. Have a nice day.
MR. SCHLESINGER: Would your Honor
want me to submit separate papers on
the new claim or should I have a motion
to consolidate?
THE COURT: Let me look at it. You
can speak with Ms. Gallagher.
MR. SCHLESINGER: Thank you very
much, your Honor.
THE COURT: Thank you.
(Matter concluded.)
Arr.= 119 -
Pe
3030 Emmons Avenue,
Brooklyn, New York 11235
June 26, 1986.
Honorable Henry Bramwell
United States District Judge
Eastern District of New York
United States Court House
225 Cadman Plaza East
Brooklyn, New York
Re: Zemsky v. City of New York et al.
CV-86-0099 (HB)
Dear Judge Bramwell,
I am the plaintiff in this case. I
request permission of the Court for
additional time to submit my answer in
opposition to Municipal Defendants'
Motion of April 14, 1986 for dismissal
or stay of this case.
Respectfully submitted,
/s/
Harry N. Zemsky, Pro Se
cc. Alan M. Schlesinger
Assistant Corporation Counsel
Law Department
City of New York
100 Church Street
New York, New York 10007
APP.- 120 -
3030 Emmons Avenue,
Brooklyn, New York 11235
June 29, 1986.
Honorable Henry Bramwell
United States District Judge
Eastern District of New York
United States Court House
225 Cadman Plaza East
Brooklyn, New York
Re: Zems v. City of New York et al.
V-86- > CV-86-0936; CV-86-1437
Dear Judge Bramwell,
I am the complainant in this case.
I request the Court's permission to
amend the above noted complaints. This
request is made pursuant to Rule 15 of
the Federal Rules of Civil Procedure.
I believe that the provisions of Rule
15 apply to this request.
Respectfully submitted,
/s/
Harry N. Zemsky, Pro Se
cc. Alan M. Schlesinger
Assistant Corporation Counsel
Law Department
City of New York
100 Church Street
New York, New York 10007
APP.- 121 <«
86-7614, 86-7616, 86-7618
To be argued by
ELIZABETH DVORKIN
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
HARRY N. ZEMSKY,
Plaintiff-Appellant
-against-
THE CITY OF NEW YORK, THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK,
VICTOR VILAREAL, ALAN J. IRGANG, JOHN
SISTI, ROBERT J. LEVENTHAL, PETER
ROSENBERG, XAVIER FRANCIS RUGGIERO,
LOFTUS NOVELTY AND MAGIC COMPANY, A
CORPORATION, DOE ONE, DOE TwO,
Defendants -Appellees
ON APPEAL FROM AN ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE EASTERN
DISTRICT OF NEW YORK
APPELLEES' BRIEF
DORON GOPSTEIN
Acting Corporation Counsel
Attorney for Defendants-
Appellees,
i 100 Church Street,
New York, New York 10007
(212) 566-8686 or 6037
ASP. ~ 12s -
ELIZABETH DVORKIN,
JUNE A. WITTERSCHEIN,
of Counsel.
January 29, 1987
TABLE OF CONTENTS
Page
tapee OF AUTHWORITIES......... i
STATEMENT OF FACTS...........
J.
ARGUMENT
i
1
QUESTIONS PRESENTED.......... 2
2
2
-
THE DISMISSAL OF _ PLAINTIFF'S
CLAIMS UNDER 42 USC §§1981, 1982,
1985 AND 1986 WAS PROPER.
PLAINTIFF'S CONSPIRACY AND
DEFAMATION CLAIMS UNDER SECTION
1983 WERE ALSO PROPERLY DISMISSED
Ei.
PLAINTIFF'S REMAINING SECTION 1983
CLAIMS WERE PROPERLY STAYED
UNDER COLORADO RIVER BECAUSE
"EXCEPTIONAL CIRCUMSTANCES"
evininigt ULEER CEL SEE Oe 9
ooo ree ee reer eee 11
TABLE OF AUTHORITIES
Page
Cases:
Bethelehem Contracting Co. v.
800 F. 2d
Lehrer/McGovern, Inc.,
325 (2d Cir. 1986) pret eaw sae s 9-11
Board of Regents v. Roth, 408
ewe SEPP Eek vc tees cccocs 8
APP.- 123 -
City of Memphis v. Greene,
451 U.S. 100 (1981).........-- 7
Colorado River Water Conservation
District v. United States,
624 U.S. Bee CEPTS). ccccee i a
Kush v. Rutledge, 460 U.S.
i Bet) Rarer rrr rrr Tere 7
Mopurgo v. Board of Higher
Education, 423 F. Supp. /04
CB Ss ESTE cc cc ccsevs verse 8
Moses H. Cone Memorial Hospital
v. Mercury Construction Corp., 460
Uite Bb RAPER ER sce eneedenacess 9
Paul v. Davis, 424 U.S. 693
ei.) eeepPyrryrrrer errr errr 8
Powell v. Workmen's Compensation
Board, 327 F. 2d 131
€ €£. C SS) eer rere ee 8
Runyon v. McCrary, 427 U.S.
i oBel >. ) rrr res 7
South Salina Street v. City of
Syracuse, NYd2d_, New York
Law Journal, Nov. 26, 1986, p. 17,
Perry a ne ee ey Se 10
Thompson v. State of New York,
487 F. Supp. 212 (N.D.N.Y. 1979) 7
United Brotherhood of Carpenters
& Joiners of America v. Scott, 463
U.S. SLD CLIGZ) ccsccccscccses 7
APP.- 124 -
Villante v. Department of Corrections,
786 F. 2d 516 e Cir. 1986). 7
Wilson v. Garcia, 471 U.S. 261
eA 044 AS ee kere 7
Statutes
Ss. G28:
ee cy Ata ee 5 «
ts Sp renee me not 5, 6
eee ieee ae 5, 6-7
PEPPER ere re ror re ee 3. §
Sea os sae ee ek 5, 6
N.Y. Education Law §3020-a
CMS IO ik id hk Rs KS 9
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
HARRY N. ZEMSKY,
Plaintiff-Appellant,
-against-
CITY OF NEW YORK, THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK,
VICTOR VILAREAL, ALAN J. IRGANG, JOHN
SISTI, ROBERT 4, LEVENTHAL, PETER
ROSENBERG, XAVIER FRANCIS RUGGIERO,
LOFTUS NOVELTY AND MAGIC COMPANY, A
CORPORATION, DOE ONE, DOE Two,
Defendants-Appellees.
APP.- 125 -
ON APPEAL FROM AN ORDER OF THE
UNITED STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF NEW YORK
APPELLEES ' BRIEF
PRELIMINARY STATEMENT
Plaintiff appeals pro se from the
judgment in three related civil rights
actions. The District Court (Bramwell,
J.) dismissed plaintiff's claims under
42 U.S.C. §§ 1981, 1982, 1985 and 1986
and stayed plaintiff's section 1983
claim under Colorado River Water
Conservation District v. United States,
pending the outcome of related state
court proceedings.
The actions arise out of a number
of allegedly harassing attacks on
plaintiff, a high school teacher, by
students. The actions were con-
solidated for the purpose of
APP.- 126 -
briefing and argument by order of this
Court dated September 30, 1986.
QUESTIONS PRESENTED
1. Whether plaintiff's claims
under sections 1981, 1982, 1985 and
1986 were properly dismissed?
2. Whether the District Court
properly applied Colorado River in
staying the section 1983 claims pending
the outcome of related state court
proceedings?
STATEMENT OF FACTS
Plaintiff is a teacher employed by
the New York City Board of Education at
the Franklin Delano Roosevelt High
School ("FDR") (51).! His
complaint, * filed on January 9, 1986,
alleges that he suffered physical
injuries from six assaults by students.
The complaint alleges one student
threw a liquid in plaintiff's
APP.- 127 -
eyes on June 7, 1982 (70, paragraph 9);
the same student threw "disappearing
ink'' in plaintiff's eyes on January 10,
1983 (71, paragraph 11); a student
threw a "hard object" at plaintiff's
head on December 13, 1983 (76,
paragraph 19); a student shot a liquid
at his face from a water gun on June
11, 1985 (87, paragraph 43); a student
"assaulted'' plaintiff on September 1,
1985 (93, paragraph 57); and, on
November 22, 1985, two students threw a
stink bomb into his classroom (94,
paragraph 58).
The complaint alleges that the
defendants improperly refused to
discipline the students, defamed hin,
concealed evidence, harassed him, and
interfered with his teaching (51-52).
The complaint alleges that these
actions deprived plaintiff of his
APP.- 128 -
constitutional rights under 42 U.S.C.
§§ 1981, 1982, 1983, 1985 and 1986 isa,
90). Plaintiff asked for more than one
billion dollars in damages in his three
complaints.
The municipal defendants moved to
dismiss the complaint on April 14,
1986. They argued that claims under
sections 1981 and 1982 should be
dismissed because plaintiff did not
allege any racially motivated
deprivation of rights (53-54). The
claims under sections 1985 and 1986
should be dismissed, the municipal
defendants argued, because plaintiff
did not allege any class based
deprivation of rights (54).
The municipal defendants argued
that the section 1983 claims should be
barred for several reasons. Those
claims arising more than three years
APP.- 129 -
before the complaint was filed on
January 9, 1986 were time barred; the
claims against the Board of Education
and the City of New York should be
dismissed because no official practice
or policy was alleged; the conspiracy
claims were too vague and conclusory to
state a claim; to the extent plaintiff
alleged negligence or defamation he
failed to state a claim under Daniels
v. Williams and Paul v. Davis; and,
plaintiff had adequate tort remedies
for these claims in state court
(23-25). The municipal defendants
requested that if the Court did not
grant the motion to dismiss in its
entirety, that the court stay the
federal action pending the outcome of
the related state court proceedings
(25).
APP.- 130 -
The municipal defendants attached
as exhibits to their moving papers
three complaints plaintiff filed in New
York State Supreme Court, Brooklyn
County (22-23). The first complaint
was filed on April 30, 1984 (52). The
complaints make the same allegations as
the federal complaint except that they
do not include the student assault on
September 11, 1985 or the stink bomb on
November 22, 1985 (52). Also attached
as exhibits to the motion to dismiss
were the various answers, demands for a
bill of particulars, and combined
demands for discovery, inspection and
copying that defendants filed in
response to the state court complaint
(22°23).
Plaintiff was given several
opportunities to respond to the motion
to dismiss but he failed to do so (5l,
Sea)
APP.- 131 -
The Court announced its decision on
June 27, 1986 (46). The Court
dismissed all claims under sections
1981, 1982, 1985 and 1986 (6). The
Court refused to dismiss the section
1983 claims that were not time barred
and that alleged deprivation of
plaintiff's liberty interest in freedom
from bodily injury (6). However, the
Court stayed these claims pending the
outcome of the state tort proceedings
(6, 60-61). The Court, on its own
motion, dismissed the complaint against
the private defendants (6, 60). 3
OPINION BELOW
In announcing his decision, Judge
Bromwell read his opinion into the
record. The Court explained that the
section 1981, 1982, 1985 and 1986
claims had to be dismissed for failure
to state a claim because plaintiff did
APP.- 132 -
not allege that defendants acted out of
a racial or class based bias (54-55).
The Court also adopted several of
defendant's arguments on the section
1983 claims. The Court stated that the
claims based on events’ that occurred
prior to January 9, 1983 are time
barred (56). The conspiracy claims
were dismissed as "vague and
conclusory" (55). The Court stated
(55-56):
[Plaintiff] fails to state, with
any degree of particularity, the
purpose of or any overt acts
perpetrated by defemdants which
reasonably relate to the claimed
conspiracies. Plaimtiff's naked
assertions regarding various
conspiracies do not suffice to
state a claim under Section 1983.
The Court dismissed the defamation
claims on the authority of Paul v.
Davis (56).
The Court found, however, that
plaintiff had stated a walid section
APP.- 133 -
1983 claim for his "liberty interest in
freedom from bodily injury" (56-57).
The Court then discussed why it was
appropriate, under Colorado River, to
stay the section 1983 claim pending the
outcome of the related state court
proceedings.
The Court stated that the state and
federal law suits constituted ''pa.allel
litigation’ because they arose out of
the same events, and both raised
"»yredominantly state law tort claims
and [add] almost as a postscript, that
defendants' actions violated his civil
rights'' (58). The Court did not think
that plaintiff's failure to name the
individual defendants in the state
action was significant because the
complaint could be amended (58-59).
Listing the Colorado River
considerations for staying a federal
APP.- 134 -
action in the interest of judicial
economy, the Court decided a stay was
appropriate. The state proceedings had
begun two years earlier and discovery
had begun (59). 4 Some of the claims
that are time barred in the federal
suit are valid in state court (60).
The Court stated that proceeding with
both actions would be duplicative (59):
"The state and federal actions are
nearly identical, requiring the same
witnesses to be called in both
proceedings.'"'
Finally, the Court noted that both
complaints raise "predominantly state
law issues" (59). Therefore, ''the
source of law factor weighs in favor of
a stay’ (60). Moreover the Court found
that the state action could adequately
protect all of plaintiff's rights,
including his federal civil rights
APP.- 135 -
(60). Therefore, the Courtd granted
the stay in the interests of judicial
economy.
ARGUMENT
1. THE DISMISSAL OF PLAINTIFF'S
CLAIMS UNDER 42 USC §§1981,
1982, 1985 AND 1986 WAS
PROPER. PLAINTIFF'S CONSPIRACY
AND DEFAMATION CLAIMS UNDER
SECTION 1983 WERE ALSO PROPERLY
DISMISSED.
Plaintiff does not allege that any
of the defendants deprived him of his
rights because of a racial or class
based bias. Therefore, he has failed
to state a claim under sections 1981,
1982, 1985 and 1986. See, e.g., Runyon
v. McCrary, 427 U.S. 160, 170 (1976)
(section 1981); City of Memphis v.
Greene, 451 U.S. 100, 120 (1981)
(section 1982); United Brotherhood of
Carpenters & Joiners of America v.
Scott, 463 U.S. 825, 829 (1982)
(section 1985); Kush v. Rutledge, 460
APP.- 136 -
U.S. 719, 722-23 (1983) (section 1985)
Thompson v. State of New York, 487 F.
Supp. 212, 229 (N.D.N.Y. 1979) (section
1986).
Accepting for the purposes of this
appeal only, that the District Court
was correct in finding that some of
plaintiff's claims under section 1983
were viable, the Court properly
dismissed plaintiff's other section
1983 claims. The allegations
concerning events that occurred more
than three years before plaintiff began
this action are time barred. Wilson v.
Garcia, 471 U.S. 261, 276 (1985);
Villante v. Department of Corrections,
786 F.2d 516, 520 n.2 (2d Cir. 1986).
Plaintiff's allegation of a
conspiracy fails to state a claim
because the allegations are not
specific:
are.~ 137 -
[I]n the Second Circuit, complaints
based on the conspiracy provisions
of the Civil Rights Act cannot rest
on vague and conclusory allegations
but must 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.
Mopurgo v. Board of Higher Education,
423 F. Supp. 704, 713 (S.D.N.Y. 1976),
quoting, Powell v. Workmen's
Compensation Board, 327 F 2d 131, 137
(2d Cir. 1964). Plaintiff did not
allege the purpose of the conspiracy,
what acts furthered the purpose of the
conspiracy, how the acts furthered the
purpose, and who participated in the
conspiracy. Therefore, the Court below
properly dismissed the conspiracy clain.
Plaintiff's argument on appeal that
'[t]lo apprehend the extent of the
conspiracy, we need only consider the
relationships among the conspirators"
and his list of conspirators (App. Br.
A??.- 133 -
at 20), does not sufficiently
illuminate the nature of his conspiracy
claim.
Plaintiff's defamation allegations
do not state a claim under section
1983. Defamation is remediable under
state tort law, but it does not deprive
an individual of liberty or property
and, therefore does not violate the
individual's due process rights under
the Fourteenth Amendment. Paul v.
Davis, 424 U.S. 693, 710-12 (1976);
Board of Regents v. Roth, 408 U.S. 564
(1972). Moreover, to the extent
plaintiff's claim is related to his
being brought up on charges for neglect
of duty, state law provides an
elaborate hearing process to safeguard
his due process rights. See N.Y.
Education Law §3020-a (McKinney).
APT. i139 -
II. PLAINTIFF'S REMAINING SECTION
1983 CLAIMS WERE PROPERLY
STAYED UNDER COLORADO RIVER
BECAUSE ''EXCEPTIONAL
CIRCUMSTANCES" APPLY.
This case presents exceptional
circumstances making a stay appropriate
based on "considerations of wise
judicial administration, giving regard
to conservation of judicial resources
and comprehensive disposition of
litigation."' Colorado River Water
Conservation District v. United States,
424 U.S. 800, 817 (1976) (quotations
and citations seterced).” As this
Court explained in Bethlehem
Contracting Co. v. Lehrer/McGovern,
Inc., 800 F.2d 325 (2d Cir. 1986),
several factors developed in Colorado
River and in Moses H. Cone Memorial
Hospital v. Mercury Construction Corp.,
460 U.S. 1 (1983), must be considered
in deciding whether a stay should issue
APP.- 140 -
under the exceptional circumstances
test. Those factors are:
the assumption by either court of
jurisdiction over any res or
property, the inconvenience of the
federal forum, the avoidance of
piecemeal litigation, the order in
which jurisdiction was obtained[, ]
- whether state or federal law
supplies the rule of decision, and
whether the state court will
adequately protect the rights of
the party seeking to invoke federal
jurisdiction.
Bethlehem Contracting Co., supra, 800 F
2d at 327.
The District Court's decision that
these factors weigh in favor of a Stay
was not an abuse of discretion. First,
as the District Court found, the state
action arises out of the same factual
allegations as the federal action
(58). Thus, parallel litigation of the
two suits will result in piecemeal
litigation.
APP.- 141 -
Second, the state action was begun
in 1984, two years before the federal
action. A complaint and answer have
been filed and defendant has noticed
its discovery dasends.* Thus, this
case is unlike Bethlehem Contracting
Co. where this Circuit found the
District Court had abused its discretion
in issuing a stay because, in part, the
state proceedings had not consisted of
more than the filing of a complaint.
Third, plaintiff's complaint raises
primarily state law tort claims
regarding assaults on him by students
and the failure of school authorities
to prevent the assaults or punish his
assailants. His section 1983 claims,
which the District Court described as
"almost ..- a postscript’ to his state
action (58), may properly be heard in
state court along with his
Predominantly state law claims. There
can be no disputing the fact that the
Courts of New York State will hear
plaintiff's civil rights claim. See,
e.g., South Salina Street v. City of
Syracuse, _ NY2d__, New York Law
Journal, Nov. 26, 1986, p. 17, col. 1.
Finally, and of perhaps the greatest
importance, all of plaintiff's claims
can only be heard in state court
because some of his claims are time
barred in federal court. Therefore,
not only will the state court
"adequately protect the rights of the
party seeking to invoke federal
jurisdiction,” Bethlehem Contracting
Co., supra, 800 F 2d at 827, but some
of plaintiff's claims of violation of
right cannot be heard in federal
court. Thus, the District Court
APP.- 143 -
properly exercised its discretion in
staying plaintiff's 1983 claims pending
the outcome of the state proceedings.
CONCLUS ION
THE ORDER APPEALED FROM SHOULD
BE AFFIRMED WITH COSTS.
January 29, 1987
Respectfully submitted,
DORON GOPSTEIN
Acting Corporation Counsel,
Attorney for Defendants-
Appellees.
ELIZABETH DVORKIN
JUNE A. WITTERSCHEIN
of Counsel.
lUnless otherwise indicated,
parenthetical references are to
Plaintiff's Appendix.
2Plaintiff filed three different
complaints (53). The complaints are
substantially similar and were
consolidated by the District Court on
its own motion (54). All references to
plaintiff's complaint will be to the
amended complaint in civil action |
86-99, unless otherwise indicated.
APP.- 144 -
After Judge Bramwell dismissed the
three complaints, plaintiff filed a
fourth complaint, which he described
as adding additional causes of action
(61). This complaint is quite similar
to the previous three complaints. It
is this fourth complaint that is
included in plaintiff's appendix.
Because the fourth complaint does not
differ in any relevant aspect from the
complaint in civil action 86-99, page
citations will be to the complaint
included in plaintiff's appendix.
3Plaintiff's brief does not discuss
this aspect of the Court's decision.
He apparently has limited his appeal to
the claims against the municipal
defendants.
“Defendants had noticed their demand
for discovery, inspection and copying
(22-23). However, plaintiff never
responded to the demand.
SThe District Court's stay order is
appealable as a final order under Moses
H. Cone Memorial Hospital v. Mercury
Construction Corp., 460 U.S. 1, 10
(1983).
6Plaintiff alleges on appeal that he
also noticed a discovery demand and
defendants did not respond. (App. Br.
at 10). This claim demonstrates that
both parties have invoked the state
discovery processes. We note that
defendants have no record of receiving
a discovery demand from plaintiff.
Obviously, discovery disputes in the
APP.- 145 -
state court action should be resolved
in state court.
7Plaintiff makes new arguments on
appeal regarding alleged actions by the
defendants which he did not include in
any papers before the District Court
(App. Br. at 4-6). Because they were
not considered by the District Court,
Defendants will not address these new
allegations.
APP.- 146 -
ARTICLE TEN
SAFETY
A. Assistance in Assault Cases
1. The principal shall report as
soon as possible but within 24 hours to
the Office of Legal Services and to the
Director of School Safety that an
assault upon a teacher has been reported
to him. The principal shall investigate
and file a complete report as soon as
possible to the Office of Legal Services
and to the Director of School Safety.
The full report shall be signed by the
teacher to acknowledge that he has seen
the report and he may append a statement
to such report.
2. The Office of Legal Services
shall inform the teacher immediately of
his rights under the law and shall
APP.- 147 -
provide such information in a written
document.
3. The Office of Legai Services
shall notify the teacher of its
readiness to assist the teacher.
This assistance is intended solely
to apply to the criminal aspect of any
case arising from such assault.
4. Should the Office of Legal Services
fail to provide an attorney to appear
with the teacher in Family Court, the
Board will reimburse the teacher if he
retains his own attorney for only one
such appearance in an amount up to
$40.00.
5. An assaulted employee who
presses charges against his assailant
shall have his days of court appearance
APP.- 143° -
Re
designated as non-attendance days with
pay.
6. The provisions of the 1982-83
Chancellor's Memorandum entitled
“Assistance to Staff in Matters
Concerning Assaults" shall apply.
APP.- 149 -
CITY SCHOOLS
By Sandra Feldman, President
United Federation of Teachers
WHAT GETS IN THE WAY OF MY TEACHING
'You see, to some, the school's image
is more important than individual
rights. . . . Too often, the rights of
the perpetrator appear more important
than the rights of the victin'
Note: On May 8, A group of teachers
testified along with me at a special
hearing on "Obstacles to Teaching'’
conducted by City Council President
Andrew Stein. Their testimony was
frank and heart-tugging, covering the
APP.- i350 *
gamut from supply shortages to crime in
the schools. The hearing received wide
press coverage.
I asked one of the teachers, James
Baumann, a teacher and dean at Queens'
Franklin K. Lane High School to excerpt
his testimony for this column.
Sandy
By James Baumann
Nearly 20 years on the school system
have repeatedly taught me that there is
a_subtle and pervasive pressure on
school staff not to report
disciplinary infractions or untoward
incidents, not to seek police help
and not to pursue student suspensions.
Victims of such pressure may
include, superintendents and more
frequently, principals. But most often
the victim is the teacher,
APP.- 151 -
paraprofessional, counselor or other
school staff members.
Classroom teachers who report
disciplinary infractions will find
their classroom management -~ indeed,
their professionalism -~- viewed with
suspicion by their supervisors.
Supervisors frequently classify such
teachers as ‘'weak'' and make them
targets.
Why? Because if a school honestly
and accurately reports incidents,
suspensions, and arrests, the
principal's administrative ability
becomes suspect. Even victims of
school violence may meet resistance
from administrators if they insist on
pressing criminal charges. You see, to
some, the school's image is more
important than individual rights. In
cases that do go to hearings, there can
APP. ° 1
b2 more insult to staff
professionalism. These proceedings
often require involved parties to make
two, three or more trips to the hearing
office. Witnesses and school staff may
be kept waiting for hours and are often
treated curtly by hearing office
personnel. Cross examination frequently
questions the judgment of school staff.
Too often the rights of the alleged
perpetrator appear more important than
the rights of the victim.
Recently police arrested two
students in front of my school for
weapons possession (a loaded .357 and
an imitation pistol). The local
superintendent suspended the students.
After three months of delay, the
hearing officer dismissed both cases on
procedural grounds stating "lack of
jurisdiction."
APP.- 153 -
Yet last year, one "student" robbed
another of a gold chain at an elevated
train station a mile or two from the
school. The victim spotted his robber
in the school cafeteria, police arrested
him and the superintendent suspended
him. In that case, the hearing officer
sustained the suspension.
Ever wonder if the left hand knows
what the right hand is doing in this
school system?
We all learn in school -- and from
what I can see, some of the things that
kids and teachers learn are not too
positive. For example, teachers learn
not to use the disciplinary procedures
and kids learn that the emperor has no
clothes -- that there are no
consequences.
So when the Gallup Poll Indicates
that the overwhelming number of parents
APP.- 154 -
are dissatisfied with school
discipline, there is a very good reason
for it. We could be well on our way to
a total no-win scenario in which
everyone is a loser: the kid who acts
out loses because the first real
restraint he may encounter could be a
nightstick. The good kids lose because
time taken up with discipline comes out
of instructional time. Teachers lose
because they are prevented from doing
their jobs. And not least of all, the
System loses because some of our best
teachers have left -- and are leaving.
(Teachers, by the way, are not the
only ones who leave. Parents who have
other options, such as moving away or
sending their kids to private schools,
will take those, rather than send their
kids to an unsafe school or a school
where they feel the discipline is poor.)
APP.- 155 -
That leaves the question: Just
what should we be concentrating on in
this situation?
Well, instead of fewer suspensions,
how about striving toward fewer
assaults, fewer robberies, fewer
larcenies? Instead of sitting on
discipline cases, how about expanding
the pitifully few programs and
supportive services for kids who are
having problems in regular school
settings? How about some values-~
oriented education where kids can learn
the difference between right and wrong?
For, in the final analysis, if we
really care about our kids, we simply
can't continue letting them do whatever
they want.
Copyright 1986 by Sandra Feldman
APP.- 156 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff
Judge Bramwell
Civil Action
vs Docket No. CV-86-0099
THE CITY OF NEW YORK, THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK,
VICTOR VILAREAL, ALAN I, IRGANG,
JOHN SISTI, ROBERT J. LEVENTHAL,
PETER ROSENBERG, XAVIER FRANCIS
RUGGIERO, LOFTUS NOVELTY AND MAGIC
COM PANY, "A CORPORATION, DOE ONE,
DOE Two.
Defendants.
MOTION FOR
TEM PORARY
RESTRAINIL. 5
ORDER
1. Plaintiff, Harry N. Zemsky, moves
the court for a temporary restraining
order, without prior notice to the
defendants, The City of New York, the
Board of Education of the City of New
York, Victor Vilareal, Alan lI. Irgang,
John Sisti, Robert J. Leventhal, Peter
APP.- 157 -
Rosenberg, Xavier Francis Ruggiero, Doe
One, Doe Two, et al in accordance with
Rule 65(b) of the Federal Rules of
Civil Procedure, to be served with the
Summons, Complaint and Amended Complaint
on the defendants in the Civil Action
described in the caption above.
2. This application is necessitated
because, as alleged in the complaint
and amended complaint in this action,
the defendants conspired and acted
intentionally and, maliciously to impede,
obstruct and deny justice on the
plaintiff sought to lawfully enforce
his rights to due process of law and
equal protection of the laws, when
these defendants knowingly and
maliciously prepared and disseminated
false and inaccurate testimony and
other evidence; and suppressed,
APP.- 158 -
withheld and destroyed documents and
other material evidence relating to
litigation involving the plaintiff and
his employer, after the plaintiff began
legal process in April 1983 for wrongful
injury and loss.
3. Therefore, the plaintiff has
substantial reason to fear that service
of the summons and other papers on the
defendants in this action, will
precipitate similar misconduct by the
defendants, and will result in immediate
and irreparable injury, loss and damage
to the plaintiffs efforts to obtain
justice in this court. |
4. It is therefore requested that the
court grant, ex parte, a temporary
restraining order, until a permanent
injunction can be obtained in
accordance with Rule 65(a)(1) of the
Federal Rules of Civil Procedure,
APP.- 159 -
ordering the defendants, their agents,
employees, servants and attorneys to
refrain from adding to, or removing,
concealing, destroying, mutilating,
altering or by any other means
falsifying any documentary materials,
or other evidence; or soliciting
another person to do so;' that is
related in any way to any matter
complained of by the plaintiff in his
complaint; without prior notification
to, and written approval by the
plaintiff or the court in this action.
/s/
HARRY N. ZEMSKY, Pro Se
3030 Emmons Avenue
Brooklyn, New York 11235
(718) 934-7358
Av?.+ 160 *
THE BOARD OF EDUCATION
OF THE CITY SCHOOL DISTRICT OF NEW YORK
DIVISION OF PERSONNEL
65 COURT STREET
BROOKLYN, N.Y. 11201
2/4/86
RE: Sabbatical Leave
Dear Harry N. Zemsky
Your request for sabbatical leave
for restoration of health has been
received by the Medical Bureau. Your
physician's statement and all relevant
supporting documentation have been
reviewed.
The finding of the Medical Bureau
is that this sabbatical is not
recommended because:
X__(1) Due to the chronic nature of
your condition, there is little
likehood of health improvement
to be achieved by granting this
leave.
APP.- 161 -
(2) There are insufficient medical
grounds to require your absence
from duty for this period of
time.
Sincerely yours,
/S/
Audrey Jacobson,
M.D., M.P.H.
Medical Director
AJ: mg
cc:
Community/High School Superintendent
Principal
Teacher Status and Records
Medical Bureau
APP.- 162 -
Office of the Superintendant of
Brooklyn High Schools
1600 Avenue L
Brooklyn, New York 11230
(718) 258-4826
March 20, 1986
Mr. Harry Zemsky
3030 Emmons Avenue
Brooklyn, NY 11235
Dear Mr. Zemsky:
A hearing was held on Tuesday,
March 18, 1986 regarding the performance
of your duties at Franklin Delano
Roosevelt High School. Mr. Max
Brimberg, U.F.T. District
Representative, Mr. Michael Grossman,
U.F.T. Chapter Chairman, Mr. Alan
Irgang, Principal and Mr. Martin
APP.- 163: -
Goldberg, my Executive assistant, were
also present.
‘At the hearing, we discussed a
number of matters in regard to your
record and performance at the school.
I expressed my deep concern over your
attendance record at F.D.R. You have
been absent for 29 days during this
current school year. You were absent
at 17 different periods for a total of
33 school days during the 1984-1985
school year and you were absent at 19
different periods for a total of 27
days for the 1983-1984 school year. My
paramount interest is in promoting
better education for our students and
your record of intensive absence
jeopardizes the learning possibilities
of your students.
During the course of our meeting, I
also questioned your refusal to
APP.- 164 -
acknowledge the receipt of letters and
reports from your supervisors and your
failure to respond to their letters and
reports. I cited as examples the
observation reports which has been sent
to you for classroom observations which
occurred on November 22, 1985, December
16, 1985 and February 24, 1986. you
admitted to receiving copies of these
three reports with the request that you
sign and return a copy of each to
acknowledge your receipt of said
reports. You stated that you had
elected not to respond to the requests.
Your comment that no one "ordered you
to sign and return each report" is
begging the question. Tradition and
practice, added to the by-laws and
various memorandums and circulars of
the New York City Board of Education,
have made it a mandatory
APP.- 165 -
procedure for many years that a teacher
must, upon the request of the Principal
or Principal's designee (i.e. the
Assistant Principal), acknowledge the
receipt of a report or letter from his
supervisor. Your action in refusing to
acknowledge or to respond to these
reports constitutes nothing less than
acts of insubordination on your part.
I must add that your comments at
the hearing raised serious concerns
regarding your attitudes towards
teaching and towards the school. You
stated that you had not yet even opened
the observation report which was given
to you some time ago for the lesson on
February 24.
The reasons you offered for your
extensive absence record do not
mitigate the unsatisfactory nature of
your record. In addition, your acts of
APP.- 166 -
insubordination in the matter of
acknowledging and responding to letters
and reports from your supervisors
indicate a callous disregard for all of
the assistance being offered to you.
Your behavior and attitude is
unacceptable and unsatisfactory and
lead me to recommend your removal from
service to the Chancellor.
Please be advised that I am
ordering you to report to the Medical
Division under the provisions of
Section 2568 of the Education Law to
determine your fitness to continue
teaching.
Very truly yours,
/s/
Martin Ilivicky
Superintendent
Brooklyn High
Schools
APP.- 167 -
MI:bb
cc: Alan Irgang
Max Brimberg
Michael Grossman
I have received a copy of this letter
and know it is being placed in my file
/s/ Harry N. Zemsky
Received at 1:00 P.M. March 21, 1986
Acknowledgment of Receipt by
undersigned is made under protest and
threat of further charges of
insubordination.
APP.- 168 -
THE BOARD OF EDUCATION
OF THE CITY SCHOOL DISTRICT OF
NEW YORK
DIVISION OF PERSONNEL
65 COURT STREET
BROOKLYN, N.Y. 11201
TO: DISTRICT/SUPERVISOR
FROM : Julian R. Covell
Administrator
Medical Bureau
RE: Name Zemsky, Harry
File # 341103
S.S. # 112-20-5354
School /Site Franklin D.
Roosevelt H.S.
The above named employee was examined
on 4/9/86 .
The result of this examination and a
review of all related documentation is:
Fit X
Not Fit
APP.- 169 -
anita
Judgment suspended pending receipt of
additional information
Other
Comments 2568 letter will follow
APPROVED: s/s
DATE: 4/9/86
cc: Principal
Employee
Medical Bureau
APP.- 170 -
OF THE CITY SCHOOL DISTRICT OF NEW YORK
DIVISION OF PERSONNEL
65 COURT STREET
BROOKLYN, N.Y. 11201
CERTIFIED MAIL-RETURN RECEIPT REQUESTED
CP 793 922 974 )
Date 3/25/86
Mr. Harry Zemsky
3030 Emmons Ave.
Brooklyn, NY 11235
Dear Sir/Madam:
Pursuant to Section 2568 of the
State Education Law, you are directed
to appear in the Medical Bureau, Room
201, on Wednesday, April 9, 1986
at 10:00 A.M. for an examination.
This directive is made at the
request of Martin Llivicky
Superintendent, Bklyn H.S. . You may
be accompanied at this examination by
one person of your choice.
APP.- 171 -
Very truly yours,
S/S
Julian R. Covell
Administrator
JRC: jh
Mr. Martin Llivicky, Superintendent,
Bklyn, HS
cc: Mr. Alan Irgang, Principal,
Franklin D. Roosevelt HS
Medical Bureau
Regular mail
APP.- 172 =
BOARD OF EDUCATION OF THE CITY
OF NEW YORK
110 LIVINGSTON STREET
BROOKLYN, NEW YORK 11201
OFFICE OF THE SECRETARY
JOHN R. NOLAN
Secretary
BEATRICE STEINBERG
Assistant Secretary
June 25, 1986
Mr. Harry Zemsky
3030 Emmons Avenue
Brooklyn, NY 11235
Dear Mr. Zemsky:
This is to advise you that the finding
of probable cause for charges against
you by the Chancellor on June 20, 1986
will appear on the Calendar of the Board
of Education at its meeting to be held
on July 1, 1986 at 11:00 A.M. at the
Hall of the Board, 110 Livingston
Street, Brooklyn, New York.
APP.* 173
The matter will appear as Item No. 26
on the Calendar for consideration by
the Board of Education. A copy of the
resolution is enclosed.
Very truly yours,
/s/
John R. Nolan
Secretary
Board of Education
JRN:BS :bde
Enc.
CERTIFIED MAIL - RETURN REQUESTED and
REGULAR MAIL
APP.- 174 -
BOARD OF EDUCATION
OF THE CITY OF NEW YORK
110 Livingston Street
Brooklyn, NY 11201
NATHAN QUINONES
CHANCELLOR
CERTIFIED MAIL -- RETURN RECEIPT
REQUESTED
June 25, 1986
Mr. Harry Zemsky
3030 Emmons Avenue
Brooklyn, New York 11235
Dear Mr. Zemsky:
I have been advised by the Board of
Education that probable cause has been
found for the charges preferred against
you. In addition, recommendations have
been made, by the Division of High
Schools and the Division of Personnel,
that you be suspended.
I have determined that the nature
of the charges against you requires
your immediate removal from your
assigned duties. Therefore, in
are.* 175 -
accordance with Education Law §3020-a,
I hereby suspend you with pay effective
as of the close of business September
3, 1986, pending the hearing and
determination of the charges preferred
against you.
You are directed to report to Mr.
Martin ILIlivicky, Superintendent of
Brooklyn High Schools, Edward R. Murrow
High School, 1600 Avenue L, Brooklyn,
New York on September 3, 1986 for
reassignment.
Very truly yours,
/s/
NATHAN QUINONES
Chancellor
NQ/dt
ec: Kenneth G. Standard, Esq.
Edward Aquilone
Sylvia Ballatt
Martin Ilivicky
James Stein
APP.- 176 -
BOARD OF EDUCATION OF THE
CITY OF NEW YORK
110 LIVINGSTON STREET,
BROOKLYN, NEW YORK 11201
July 1, 1986
Bd. Ed. Mtg. 7/1/86
Cal. No. 26
Mr. Harry Zemsky
3030 Emmons Avenue
Brooklyn, NY 11235
Dear Mr. Zemsky:
Enclosed for your information is a
certified copy of the resolution
adopted by the Board of Education on
July 1, 1986 with reference to the
charges preferred against you by the
Chancellor.
Very truly yours,
APP.- 177 -
/s/
John R. Nolan
Secretary
Board of Education
JRN:BS :bdc
Enc.
cc: Mrs. Tucker (Att: Ms. Weinstein)
Mr. Standard
Files
CERTIFIED MAIL - RETURN RECEIPT
REQUESTED and REGULAR MAIL
Bd. Ed. Mtg. 7/1/86
Cal. No. 26
FINDING OF PROBABLE CAUSE FOR CHARGES
AGAINST A TENURED TEACHER OF SOCIAL
STUDIES FILE #341103
The following resolution is presented
for adoption:
WHEREAS, on June 20, 1986, the
Chancellor submitted charges to the
Board of Education against respondent,
a tenured teacher of social studies;
and
APP.- 178 -
WHEREAS, the Board of Education reviewed
these charges and in executive session
on June 25, 1986 determined that there
is probable cause for said charges and
ordered an administrative trial in
accordance with State Education Law
section 3020-a; now therefore be it
RESOLVED, that the Board of Education
herewith ratifies its decision made in
executive session on June 25, 1986.
Respectfully submitted
June 25, 1986 /S/ James F. Regan
aArr.- 179 -
A true copy of resolution(s) adopted by
the Board of Education on July 1, 1986
/s /
Assistant Secretary, Board of Education
Harry Zemsky
APP.- 180 -
New York State United Teachers
Office of the General Counsel
July 10, 1986
Mr. Harry Zemsky
3030 Emmons Avenue
Brooklyn, New York 11235
RE: Zemsky, Harry advs. BOE, CSD, CNY
Our File No. 53807-T101
Dear Mr. Zemsky:
This office is in receipt of a
request from your UFT representative,
for your legal representation in the
tenure charges pending against you.
The case has been opened and the
undersigned has been assigned to
represent you. As soon as you have
received this letter, please call me at
(212) 533-6300 between 10:00 a.m. and
6:00 p.m. any weekday, in order that we
APP.- 181 -
may arrange for a mutually convenient
meeting.
If you have not already done so,
you will shortly receive from the State
Education Department, a notice entitled
"List of Participants.'' This notice
will include tentative scheduled hearing
dates which will be adhered to unless
both sides agree otherwise.
While you are waiting to meet with
me, you should prepare a written
response to each item in the charges
and obtain a copy of your entire
personnel file. Your representative
can assist you with these tasks. These
items will be necessary for our first
meeting and you can save time and aid
in the initial preparation of your case
by doing these things as soon as
possible.
APP,.- 182 -
This office will advise the State
Education Department that it is
representing you and we will then
receive copies of all materials sent
from the State Education Department
related to your case.
If you wish to have a private
attorney represent you, you should
notify this office immediately so that
we do not advise the State Education
Department that we will be representing
you. The Union, you should know, will
not pay the cost of your private
attorney and this office will not act
as co-counsel to your private attorney.
Your cooperation in preparing the
written response and securing a copy of
your personnel file will be appreciated
and very helpful.
As soon as you have contacted me
and we set up an appointment, any
APP.- 183 -
nn
questions and concerns that you have
with respect to the preparation of your
case including the pursuit of
settlement possibilities, can be
handled.
I look forward to hearing from you.
Very truly yours,
JAMES R. SANDNER
By: /s/
JACOB S. FELDMAN
Associate Counsel
JSF /m1m
cc: Catherine Davenport
UFT Representative
APP.- 184 -
BOARD OF EDUCATION
OF THE CITY OF NEW YORK
110 LIVINGSTON STREET
BROOKLYN, N.Y. 11201
FORM 3020-a-5
NOTICE OF THE NEED FOR A HEARING ON
CHARGES AGAINST A TENURED SCHOOL
DISTRICT EMPLOYEE
Section 3020-a
Education Law
To the Commissioner of Education:
Please be advised that the Board of
Education of the City School District
of New York, 110 Livingston Street,
having found that there is probable
cause for the charges filed against
Harry Zemsky, a tenured employee of
this school district, in an executive
session of the board of education held
on June 25, 1986, and the employee
having requested a hearing on said
APP.- 165 =
charges that there is a need for a
hearing of said charges. Space for the
hearing will be provided at 110
Livingston Street, Room 925. Attached
is the proof of service of a copy of
the charges on the named employee.
The complainant has appointed:
Kenneth G. Standard
110 Livingston Street
Brooklyn, New York 11201
(718) 596-4197
to serve as his/her attorney as
provided by Section 3020-a of the
Education Law.
July 25, 1986
/s/
(date) John R. Nolan
Secretary, Board of
Education
Attachments
Note: A copy of this notice must be
forwarded immediately to the above
named tenured school district employee
by certified mail.
APP.- 186 -
THE CITY OF NEW YORK
TEACHER'S RETIREMENT SYSTEM
40 Worth Street
New York, N.Y. 10013
(212) 566-6676
00T611562
September 2, 1986
TO WHOM IT MAY CONCERN:
This is to certify that Harry
Zemsky 00T611562 filed a service
retirement application, effective Sept.
3, 1986.
/s/
Wallace F. Sullivan
Executive Director
APP.- 187 -
NEW YORK CITY
BOARD OF EDUCATION
110 Livingston Street
Brooklyn, New York 11201
Nathan Quinones
Chancellor
Division of Special Education
Edward M. Sermier
Chief Administrator
(718) 596-8928
October 27, 1986
Dear Colleague:
The Division of Personnel has identified
you as a teacher with a current, valid
license or certificate who is not
presently a full-time employee of the
New York City Board of Education. We
would like to inform you of an
opportunity within the Division of
Special Education, which has received a
special grant to provide 5 days of
training for each special
APP.- 185 -
education classroom teacher. This
means the Division of Special Education
will be able to offer you approximately
60 days employment as a substitute
teacher, in the period from November,
1986 through May, 1987, for which you
will receive substitutes' pay of $74.20
per day.
Every effort will be made to assign you
to continuous service in a school
convenient to you. In addition, if
your substitute service is satisfactory,
you will be given preference for full-
time employment should a vacancy occur.
First preference will be given to those
who are able to commit themselves to
working for the greatest amount of time.
However, if you are only able to commit
APP.- 189 -
yourself to two or three months work,
we would still like to hear from you
and will probably be able to offer you
a substantial amount of work.
An application form is attached for
your convenience. If you are
interested in this offer, please
complete the form and return it
immediately, as indicated. We hope you
will be able to take advantage of this
opportunity, and look forward to
hearing from you.
Please return the enclosed form to:
Division of Special Education
Personnel Office - Room 327
110 Livingston Street
Brookiyn, New York 11201
Sincerely,
/s/
Edward M. Sermier
Enclosure
9825P4
AP?P.- 190 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff
ORDER
Vv. 86 CV 1437 (HB)
THE BOARD OF EDUCATION OF
THE CITY OF NEW YORK
Defendants.
A status conference will be held in
this case on November 14, 1986 at
11:10 A.M. before A. Simon Chrein,
United States Magistrate, in Room 352,
225 Cadman Plaza East, Brooklyn, New
York. All counsel must be present. In
the otek ah answer has not yet been
filed, plaintiff's counsel is to notify
counsel for the defendant of this
conference as soon as an answer is
filed. If an answer is not filed
plaintiff's counsel is to notify the
AFF.- i191 -
undersigned, in writing, to reach me
two days before the scheduled
conference. No request for adjournment
will be considered unless made at least
forty-eight (48) hours before the
scheduled conference.
The Clerk is directed to mail a
copy of this Order to counsel for all
parties appearing in this case.
SO ORDERED.
Dated: Brooklyn, New York
Sept. 3, 1986
/s/
A. SIMON CHREIN
United States Magistrate
APP.- 192 ¢
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff
ORDER
Vv. 86 CV 936 (HB)
THE BOARD OF EDUCATION OF
THE CITY OF NEW YORK
Defendants.
A status conference will be held in
the case on November 14, 1986 at
11:10 A.M. before A. Simon Chrein,
United States Magistrate, in Room 352,
225 Cadman Plaza East, Brooklyn, New
York. All counsel must be present. In
the event an answer has not yet been
filed, plaintiff's counsel is to notify
counsel for the defendant of this
conference as soon as an answer is
filed. If an answer is not filed
plaintiff's counsel is to notify the
APP.- 193 -
undersigned, in writing, to reach me
two days before the scheduled
conference. No request for adjournment
will be considered unless made at least
forty-eight (48) hours before the
scheduled conference.
The Clerk is directed to mail a
copy of this Order to counsel for all
parties appearing in this case.
SO ORDERED.
Dated: Brooklyn, New York
Sept. 3, 1986
/S/
A. SIMON CHREIN
United States Magistrate
APP.- 194 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY, i
Plaintiff
-against- 86-CV-2145
THE CITY OF NEW YORK, et al.,
Defendants.
WAAC nats iiihnmk ain ™
BRAMWELL, D.J.
After reviewing the file in this
matter, the Court hereby directs the
attorneys for the parties to the above-
captioned matter appear for a pre-trial
conference on Friday, January 23, 1986,
at 2:45 PM, in Room 628, United States
Courthouse, 225 Cadman Plaza East,
Brooklyn, New York.
APP.- 195 =
If either attorney finds it
impossible to attend said conference,
he is to contact my law clerks. Your
cooperation in this matter is requested.
/s/Henry Bramwell
U.S.D.J.
Dated: Brooklyn, New York
December 8, 1986
APP.- 196 -
Report on incident Dated Jan. 10, 1983
Teacher: Mr. Zemsky
Student: Victor Vilareal
Time: 1:55 pm
Student stated that he and his
friend Anthony Pelligrino were fooling
around in the hallway on the 4th floor.
Victor while attempting to squirt,
Anthony, squirted Mr. Zemsky on his
shirt.
Mr. Zemsky had Victor brought to
the Deans' Office by Security Officer
Schoeller. Mr. Zemsky then came to the
office stating that Victor entered his
subject classroom (461) and squirted a
blue liquid in his face.
AP?P.- 197 -
Mr. Ruggiero, called Mrs. Vilareal
to school for a Deans conference on
Jan. 12, 1983. On that date a Deans'
conference was held with Mr. Roseshers.
Mr. Ruggiero and parent. The seriousness
of the matter was impressed on the
parent. Mrs. Vilareal appologized for
the actions of her son and promised
continued cooperation.
Peter Rosenberg
Dean
APP.- 198 -
My friend Anthony Pelligrino and I were
playing with dissappearing ink. I was
struggling with Anthony to squirt it on
him (Anthony), when we accidently
squirted it on Mr. Zemskys lower
stomach area. After 3 minutes the
dissappearing ink dissappeared off of
his shirt.,
/s/ Victor Vilareal
-199-
FRANKLIN DELANO ROOSEVELT HIGH SCHOOL
March 29, 1985
To Whom It May Concern:
My observations as Principal of
Franklin D. Roosevelt H.S. clearly
indicate that Mr. Harry Zemsky has made
a practice of filing accident reports
for alleged incidents that truly do not
require said accident reports.
During the past year and a half, he
has filed a total of five accident
reports. Additionally, his description
of the reports, in most cases, has been
found to be overly exaggerated.
APP.- 200 -
Please do not hesitate to call me
if you have any additional questions.
Yours truly,
Alan Irgang
Principal
mle
APP.- 201 -
ACCIDENT REPORTS FOR MR. ZEMSKY
12/13/83
noon
12/13/83
9:25 a.m.
Mr. Zemsky was struck on
head by an object thrown by
a student. Mr. Zemsky
claims the object was hard
metal, rock or ceramic.
Upon Dean's investigation,
it was learned that student
threw paper into the room
which hit Mr. Zemsky.
(Students interviewed by
Deans admitted throwing
paper.)
Student dripped liquid,
presumably water, on Mr.
Zemsky's head. Mr. Zemsky
does not believe this
incident caused any injury.
APP.- 202 -
1/10/83
(Student interviewed
admitted bringing a wet
umbrella into class.)
A student squirted a blue
liquid into Mr. Zemsky's
eyes and face. Student
claims the substance was
"disappearing ink''. On
January 12, 1983 a
conference was held with the
deans, student, Victor
Vilareal, and parent. The
same student, Victor
Vilareal, was involved in a
similar incident on June 7,
1982 when he squirted fluid
from a simulated cigarette
lighter into Mr. Zemsky's
eyes and face.
APP.- 203 -
* (Parent conference held.
Mr. Ruggiero informed only
of fluid on shirt.)
Mr. Zemsky filed a ONE
MILLION DOLLAR claim against
the city for the Jan. 10,
1983 accident.
6/7/82 Student squirted a stream of
fluid at Mr. Zemsky from a
simulated cigarette lighter
hitting him in his eyes and
face.
* (Warning letter sent after
student interviewed).
6/12/75 Mr. Zemsky was hit in his
face by a stream of water
from a water gun. He also
injured his right hand and
ring finger of right hand.
APP.- 204 -
3/18/72 Mr. Zemsky reported that
someone sprayed an
irritating substance into
his room, possibly mace,
resulting in irritation of
his eyes, forehead, nose and
throat. Mr. Zemsky claims
that later that day and
night he experience a fluid
discharge from his nose and
throat which was spotted
with blood.
KK ( wee eee ee ee ee ee ee ee ee )
**
Kk
Hand-written interpolations by a
municipal defendant on original.
"Student suspended" written in,
then crossed out, by Municipal
Defendant.
Illegible interpolation written in;
then crossed out by municipal
defendant. 5» . 205 -
THE CITY OF NEW YORK
OFFICE OF THE COMPTROLLER
BUREAU OF LAW AND ADJUSTMENT
Division of Settlements
Mr. Michael O'Dwyer
New York City Board of Education
65 Court Street, Room 405
Brooklyn, New York 11201
REQUEST FOR DEPARTMENTAL REPORT
Claimant's Name: Harry Zemsky
Claim Number: T404477
Date of Request: 4/22/83
Dear Mr. O'Dwyer:
Please send all Departmental Reports
and/or any information that you have
regarding allegations made in the
attached notice of clain.
APP.- 206 -
IMPORTANT: Please return your reply
promptly, to this Unit
regarding this ''NO
ATTORNEY" claim.
DIVISION OF SETTLEMENTS
Room 611 - Telephone: 566-2269
ENCLOSURE: Notice of Claim.
Aer.~ 207 +
BOARD OF EDUCATION
OF THE CITY OF NEW YORK
DIVISION OF BUSINESS AND ADMINISTRATION
BUREAU OF UNEMPLOYMENT INSURANCE CLAIMS
In reply, please refer to
ACCIDENTS & CLAIMS
596-3927
Date: 4/27/83
To: PRINCIPAL
FROM : Accident Report Unit
65 Court Street
Brooklyn, N.Y. 11201
A NOTICE OF CLAIM has been served on
the Board of Education (copy enclosed)
arising from property damages or
personal injuries sustained in your
school as indicated below:
CLAIMANT : Harry Zemsky
DATE OF ACCIDENT: 1/10/83
LOCATION OF ACCIDENT:Franklin D.
Roosevelt H.S.
NATURE OF CLAIM: Personal injuries
COMPTROLLER'S CASE #: 404477
APP.- 206 -
Please search your files for a record
of the Accident or Incident. If an
accident of incident report is on file,
kindly send a copy of the report with
the enclosed NOTICE OF CLAIM TO:
Office of the Comptroller
Law & Adjustment, Room 611
Municipal Buildin
New York, N.Y. 10007
ATTENTION: MARK FRANKEL
If for some reason the incident or
accident was not reported or the school
was not apprised of the incident,
please advise the Comptroller's Office
of this within 48 hours, using SCHOOL
STATIONERY; your letter must include
Comptroller's Claim #.
Encl:
MJO:gr
APP.- 209 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff, 86-CV-0936
~against- MAGISTRATE
REFERRAL ORDER
THE CITY OF NEW YORK, THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK, etc.
Defendants.
BRAMWELL, D.J.
The civil case hereinabove set
forth is referred to Magistrate Chrein,
for the purpose indicated below:
2 he To enter the scheduling order
provided for in Rule 16(b) of
the Federal Rules of Civil
Procedure ;
e Ze To hear and decide any disputes
arising from discovery or other
pre-trial activities, except
for matters exempted by 28
U.S.C. § 636 (b) (1) (A);
APP.- 210 -
e Se To Consider in each instance
the possibility, if any, of
settlement and to assist
therewith as may be appropriate;
x 4, To prepare a pre-trial order
where this has not yet been
accomplished, and where such
order seems indicated;
De To schedule an approximate
trial date, in consultation
with the chambers of the
undersigned, as early as
feasible;
x 6. To file a report with the
undersigned within 120 days as
tc the status of the case, in
the event the tasks set forth
above are not then completed.
SO ORDERED.
/s/ Henry Bramwell
U.S.D.J.
Dated: Brooklyn, New York
May 12th, 1986
APr.° dil «
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
HARRY N. ZEMSKY,
Plaintiff, 86-CV-1437
-against- MAGISTRATE
REFERRAL ORDER
THE CITY OF NEW YORK, THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK, etc.
Defendants.
BRAMWELL, D.J.
The civil case hereinabove set
forth is referred to Magistrate Chrein,
for the purpose indicated below: |
_x il. To enter the scheduling order
provided for in Rule 16(b) of
the Federal Rules of Civil
Procedure ;
" Ze To hear and decide any disputes
arising from discovery or other
pre-trial activities, except
for matters exempted by 28
U.S.C. § 636 (b) (1) (A);
APP.- 212 -
= 3 To Consider in each instance
the possibility, if any, of
settlement and to assist
therewith as may be appropriate;
x 4, To prepare a pre-trial order
where this has not yet been
accomplished, and where such
order seems indicated;
De To schedule an approximate
trial date, in consultation
with the chambers of the
undersigned, as early as
feasible;
x 6. To file a report with the
undersigned within 120 days as
to the status of the case, in
the event the tasks set forth
above are not then completed.
SO ORDERED.
/s/ Henry Bramwell
U.$.D.J.
Dated: Brooklyn, New York
May 12th, 1986
APP.- 213 -
THE BOARD OF EDUCATION OF THE CITY
OF NEW YORK
HUMAN RESOURCES SYSTEM
FINALIZED PERSONNEL TRANSACTION FORM
TRANS TYPE LWOP-PENDING RETIREMENT
EFFECTIVE DATE 09/03/86
PTF NUMBER 1778584
DATE PRINTED 09/10/86
File No. 341103
Soc. Sec. NO. 112-20-5354
H.N. Zemsky
3030 Emmons Avenue Apt. 2W
Brooklyn, New York 11235
TRANSACTION INFORMATION
License Code 6918/Social Studies
Payroll Status 2/Responsible District 78
APP.- 214 -
Pay Dist/Boro/Sch 78-K505
Proposed Effective Date 09/03/86
Leave Type PR
LWOP Pending Retirement
Leave to Date: 01/31/87
Signatures Date
/s/ Alan Irgang 10/3/86
APP.- 215 -
THE CITY OF NEW YORK
LAW DEPARTMENT
November 7, 1986
BY HAND
Honorable Henry Bramwell
United States District Judge
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York
Re: Zemsky v. Bcard of Education, et al
CV - 86 - 2145 (HB)
Dear Judge Bramwell:
I am an Assistant Corporation
Counsel in the Office of Frederick A.O.
Schwarz, Jr., Corporation Council of
the City of New York, attorney for
Municipal Defendants in the above-
referenced action and in the related
and nearly identical actions, bearing
the same caption, index numbers
CV-86-0099, 0936, and 1437. The summons
and complaints in the instant case was
served on some of the
APP.- 216 -
Municipal Defendants during October,
1986, nearly four months after your
order of June 27, 1986 staying all
federal proceedings in the three
aforementioned related cases. None of
the Municipal Defendants were served
prior to your order of June 27, 1986.
We respectfully request a
conference with your honor to seek
permission to move to dismiss the
complaint in the above-referenced
action on the grounds, inter alia, that
is violative of both your June 27, 1986
order and the provisions of Rule 15
regarding amended complaints or, in the
alternative, to consolidate this action
with the aforementioned related actions.
Respectfully submitted,
/s/
Ales" 424i? -
Alan M. Schlesinger
Assistant Corporation
Counsel
Re: Harry Zemsky
3030 Emmons Avenue
Brooklyn, N.Y. 11235
APP.- 218 -
3030 Emmons Avenue,
Brooklyn, New York 11235
May 26, 1987
Mr. Mounir Bessada,
Chief Accountant,
Teachers' Retirement System of the
City of New York,
40 Worth Street,
New York, New York 10013
Dear Mr. Bessada,
Reference is made to your letter
dated April 27, 1987.
Some of your comments differ with
information previously given to me by
the Teachers’ Retirement System.
I, therefore, require that the
Teachers' Retirement System immediately
send me a certified copy of the complete
record of my membership in the Teachers
Retirement System of the City of New
York. (Membership #00T611562; and
Pension #069139-0.)
APP.- 219 -
Thank you for your cooperation.
Sincerely yours,
/s/
HARRY N. ZEMSKY
3030 Emmons Avenue
Brooklyn, New York 11235
APP.- 220 -
3030 Emmons Avenue,
Brooklyn, New York 11235
June 15, 1987
Mr. Mounir Bessada, Chief Accountant,
Teachers’ Retirement System of the
City of New York,
4O Worth Street,
New York, New York 10013
Dear Mr. Bessada,
Reference is made to your letter
dated May 29, 1987.
After several inquiries I belatedly
received my pension check for the month
of May 1987.
I am unable, however, to cash this
check, whose gross amount payable is
less than the amount established by the
Teachers' Retirement System Actuarial
Report of March 31, 1987; because I am
afraid that cashing such a check would
imply my acceptance of a smaller
APP. * 221
‘ | wii
pension than originally established.
Please advise me regarding disposition
of this check.
Additionally, as you were previously
notified, I require that the Teachers'
Retirement System immediately send me a
certified COPY of the complete record
of my membership in the Teachers'
Retirement System of the City of New
York. (Membership # 00T611562; Pension
# 069139-0).
Thank you for your cooperation.
Sincerely yours,
HARRY N. ZEMSKY
3030 Emmons Avenue
Brooklyn, New York 11235
(718) 934-7358
APP.- 222 «
TEACHERS ' RETIREMENT SYSTEM
THE CITY OF NEW YORK
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
April 27, 1987
Mr. Harry Nathan Zemsky
3030 Emmons Avenue
Brooklyn, New York 11235
Dear Mr. Zemsky:
Your application for retirement
effective September 3, 1986 has been
processed and you received your first
retirement allowance check dated March
31, 1987.
After reviewing the calculation of
your retirement allowance, we find that
your Annuity Savings Fund reflects a
deficit amounting to $13,473.80 as a
AS?.* £22 *
result of the following charges to your
Annuity Savings Fund:
BAL. AS AT 8/31/86 $39,493. 30
LESS: LOAN BAL.
AS AT 8/31/86...$28,773.02
LESS: EXCESS WITH-
DRAWAL 9/30/86...24,194. 08
52,957.10
BALANCE (DEFICIT) $13,473.80
Due to the above error, your retirement
allowance will be adjusted and your
Annuity Reserve Fund will be reduced by
$66.69 per month as of May 31, 1987.
The present deficit of $13,473.80 plus
the retirement allowance overpayment of
$66.69 monthly from the date of your
retirement on September 3, 1986 to the
date of the adjustment on April 30,
1987 amounting to $529.07 leaves a
total of $14,002.87 which must be
reimbursed.
APP.- 224 -
Please mail us your check as soon
as possible in the amount of $14,002.87
made payable to the: .
Comptroller of the City of New York,
Custodian of the Funds of the Teachers’
Retirement Systen.
If we do not hear from you by May
31, 1987, we will begin deducting the
amount of $190.00 per month from your
monthly retirement allowance as of the
June 1987 payroll until the full amount
of $14,002.87 is recovered.
Thank you for your cooperation in
this matter.
Very truly yours,
/S/
Mounir Bessada
Chief Accountant
cc: Ms. Penny Taylor
APP.- 225 -
TEACHERS' RETIREMENT SYSTEM
THE CITY OF NEW YORK
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
May 29, 1987
#T 611562
Mr. Harry Nathan Zemsky
3030 Emmons Avenue
Brooklyn, New York 11235
Dear Mr. Zemsky:
I am in receipt of your letter
dated May 26, 1987 and your telegram
dated May 27, 1987. Your letter and
telegram indicate that you are
disturbed about certain information
forwarded to you from the Teachers’
Retirement System but you do not
specify the problem. I, therefore,
cannot respond in a direct manner.
In reviewing our records, we found
that we provided you with the correct
figures which appear in my letter of
April 27, 1987.
APP.- 226 -
Insofar’as allowing personal member
records out of our safekeeping, I am
sure you can appreciate the hazards of
lost mail but I would be more than
happy to meet with you at your conven-
ience and discuss your records or
provide you with any information
necessary for your understanding of the
matter.
Please call me at (212) 566-6673 to
set up an appointment.
Very truly yours,
/S/
Mounir Bessada
Chief Accountant
/
APP.- 227 -
TEACHERS’ RETIREMENT SYSTEM
THE CITY OF NEW YORK
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
June 16, 1987
Mr. Harry Nathan Zemsky
3930 Emmons Avenue
Brooklyn, New York 11235
Dear Mr. Zemsky:
This is in reference to our
previous communication informing you of
a deficit amounting to $14,002.87 which
was a result of the withdrawal of excess
monies from your account not taken into
consideration in the calculation of your
retirement allowance.
In accordance with a Resolution
adopted at the Teacher's Retirement
Board meeting of February 21, 1985, I
am empowered to implement a reasonable
APP.- 228 -
plan of repayment to be deducted from
the member's retirement allowance when
a bi-lateral agreement to recover monies
due cannot be reached.
Therefore, this letter serves as
notification that, beginning with your
June 1987 retirement allowance check,
we will be withholding approximately
10%Z of your gross monthly allowance
which amounts to $190.00 per month to
be continued until the full amount of
$14,002.87 is recovered.
Sincerely,
/S/
Wallace F. Sullivan
Executive Director
WFS :vrd
cc:Mr. Mounir Bessada
APP.- 229 -
TEACHERS' RETIREMENT SYSTEM
THE CITY OF NEW YORK
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
June 19, 1987
#R 69139
Harry Nathan Zemsky
3030 Emmons Avenue
Brooklyn, New York 11235
Dear Mr. Zemsky:
I am in receipt of your letter dated
June 15, 1987 and your Mailgram dated
June 17, 1987.
Due to the withdrawal of your excess
funds not taken into consideration in
calculating your retirement allowance
as explained in my letters dated April
27, May 29 and June 16, 1987, your
retirement allowance has been revised
and your pension check does reflect the
proper allowance due you.
APP.- 230 -
Enclosed please find a copy of the
Second Report of Actuary which reflects
the corrected figures.
We regret any imconvenience this
has caused you.
Very truly yours,
/S/
Moumir Bessada
Chief Accountant
MB :vrd
Enc:
APP.= 231 -
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Docket No: 86-7614
86-7616
86-7618
HARRY N. ZEMSKY,
Plaintiff-Appellant,
-V\V-
THE CITY OF NEW YORK, THE BOARD OF
EDUCATION OF THE CITY OF NEW YORK,
VICTOR VILAREAL, ALAN J. IRGANG, JOHN
SISTI, ROBERT J. LEVENTHAL, PETER
ROSENBERG, XAVIER FRANCIS RUGGIERO,
LOFTUS NOVELTY AND MAGIC COMPANY,
A CORPORATION, DOE ONE, DOE TWO,
Defendants-Appellees
—_—— we ee ee ee ee ee ee ee eee p<
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE EASTERN DISTRICT OF NEW YORK
APP.- 232 -
APPELLANT'S BRIEF
Harry N. Zemsky, Pro Se
3030 Emmons Avenue
Brooklyn, New York
11235 (718) 934-7358
I. ISSUES PRESENTED FOR REVIEW
(a) The issuance of two orders in
this case, June 27, 1986 and
September 1, 1986, leads me to:
(1) request the District Court
to reconsider its orders,
and, |
(2) request the Appeals Court
to review the orders of the
District Court.
APP.- 233 -
(b) I believe the District Court
erred because it was misled by
the Municipal Defendants, and
by my inability to answer their
motions for dismissal and/or
stay of federal proceedings.
(c) I believe that Judge Branwell
was not unsympathetic to my
plight, but faced with my
obvious inability to properly
represent myself, the Court had
no other recourse.
(d) My problems in the District
Court included:
(1) lack of legal knowledge,
experience, and resources;
(2) chronic disabling illness;
and
APP.- 234 -
(3) the intensification of
efforts by the Municipal
Defendants to force me to
discontinue this action
have created new issues for
the Court to consider.
Accordingly, I have moved
the Court for permission
to include matters not
presented in the District
Court for consideration
here.
il. NATURE OF THE CASE
(a) Defendant Vilareal is a former
student at the Franklin D.
Roosevelt High School: The
following are employees of the
New York City Board of
APP.- 235 -
(b)
Education at the Franklin D.
Roosevelt High School.
Defendant Irgang is the
Principal; Defendant Sisti is
the Assistant Principal,
Administration Defendant
Leventhal is Assistant
Principal, Supervision - Social
Studies; Defendant Rosenberg is
a Dean; Defendant Ruggerio is a
Dean
This case began when defendant
Vilareal twice threw liquid
substances into plaintiff's
eyes. After the second attack
plaintiff filed a "Notice of
Claim'' with the defendant Board
of Education for injuries to
his eyes.
APP.- 236 -
(c) Unknown to the plaintiff (at
(d)
that time) on or about April
22, 1983, the Office of the New
York City Comptroller called
the attention of the Board of
Education to my 'NO ATTORNEY"
claim. On or about April 28,
1983, the Board of Education
called the attention of
Defendant Irgang to my ''NO
ATTORNEY" clain.
On May 2, 1983, plaintiff was
summoned to a "conference" in
Defendant Irgang's office where
accompanied by abuse, ridicule,
etc. this plaintiff was
threatened that if he claimed
that his eyes were bad, and if
he was sick, plaintiff would be
sent to the Medical Division
and his teaching career ended.
APP.- 23/7 -
(e) Subsequently for more than
three years, the Municipal
Defendants, and Defendant
Vilareal, have conspired and
acted to wrongfully injure and
oppress the plaintiff to force
him to end his litigation in
these matters, and to falsify
and destroy evidence about
Defendant Vilareal's two
attacks on the plaintiff.
IIl. INTENSIFICATION OF EFFORTS TO
FORCE ME TO DISCONTINUE THIS
ACTION
(a) On or about, and subsequent to
May 15, 1986 a threat by a
Municipal Defendant concerning
this action was communicated to
me.
APP.- 238 -
(b) On or about June 9, 1986 I
(c)
(d)
(e)
received an annoying anonymous
letter in the mail
On June 19, 1986 my car, parked
near Franklin D. Roosevelt High
School while at work, had three
tires flattened (slashed).
On June 25, 1986 my car, parked
near Franklin D. Roosevelt High
School while at work, had its
exhaust system almost totally
demolished.
During the night of August
10-11, 1986, I observed an
automobile standing in front of
my car, with two males
apparently examining my car.
They abruptly jumped into their
APP.- 239 -
(f£)
vehicle and drove off, as a
Police Department Patrol Car
appeared.
On the evening of August 19,
1986, my doorbell rang. Not
having received a call on the
building security system, I
asked who was at the door.
There was no answer. The door
bell continued to ring, I again
asked who was at the door.
Again there was no answer. Sudde
nly, the persons who had been
ringing my door bell, moved
hurriedly to the stairway
opposite my apartment door and
ran down the stairs, as the
elevator arrived on my floor
and several persons and a
barking dog stepped into the
APP.- 240 -
(g)
(h)
corridor. When I opened my
apartment door I noticed that
the door bell fixture had been
scratched by a pointed
instrument.
From may through September
1986. I received several
annoying telephone calls from
persons who refused to identify
themselves. During the night
of September 27-28, 1986, I
received several telephone
calls between 12:30 and 1:00 AM
from an individuul who refused
to identify himself, whose
comments included references to
the "Board of Education."
Because I have identified two
Municipal Defendants in two of
APP.- 241 -
these occurences, I believe
that the above noted events are
related to my prosecution of
this case.
(i) Deeply troubled by these
events, I have placed evidence
about them in a safety deposit
box, should I be unable to
continue my prosecution of this
action.
(j) On June 26, 1986, I received
six pieces of mail (three
regular and three certified
duplicate) from the Board of
Education notifying me of my
suspension and trial of charges
for neglect of duty. The
charges were false and
apparently synchronized to
APP.- 242 -
IV.
(a)
conflict with the hearing in
District Court on June 27, 1986.
ADDITIONAL CAUSES OF ACTION
CONTINUED TO ACCRUE
COURSE OF PROCEEDINGS
On April 14, 1986, Municipal
Defendants submitted motions to
the Court to:
(1) dismiss "this action
pursuant to Rule 12(b) (6)
of the Federal Rules of
Civil Procedure"; or,
(2) "for an order staying all
further federal proceedings
in the above-captioned
action pending disposition
of plaintiff's action
APP.- 243 -
presently before the
Supreme Court of the State
of New York"; and,
(3) "for such other and further
relief as the Court deems
just and proper"; and/or,
(4) "for an order allowing
Municipal Defendants twenty
(20) days in which to
answer the amended
complaint .. . pursuant to
Rule 12(a) of the Federal
Rules of Civil Procedure."
(b) I was unable to prepare and
submit my answer. A hearing on
the Municipal Defendants
motions was held on June 27,
1986.
APP.- 244 -
V. DISPOSITION IN LOWER COURT
Two orders were issued by the Court.
(1) The consolidated cases were
(2)
administratively closed without
prejudice to reinstatement to
the active calendar upon
application to the Court.
ORDERED that civil actions
numbers CV-86-0099 (HB),
CV-86-0936 (HB), and CV-86-1437
(HB) be, and they hereby are,
consolidated and it is further
ORDERED, Municipal Defendants'
motion to dismiss the
complaints herein with respect
to plaintiff's claims pursuant
to 42 U.S.C. sections 1981,
APP.- 245 -
1985 and 19
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