# Appendix — Zemsky v. City of New York > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1044%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1987 - **Citation:** 484 U.S. 965 ## Text pon ‘ Court, U, ~ | i OO 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1044%3A2. Public record. Not legal advice.