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JEMZURA v. BELDEN

February 16, 1968

George JEMZURA, Plaintiff,
v.
Kathleen BELDEN, Joseph J. Benenati, Jr., David F. Lee, Jr., Edward J. Lee, Lynn N. Peterson and Joe Schapiro, Defendants



The opinion of the court was delivered by: TIMBERS

TIMBERS, District Judge.

QUESTION PRESENTED

 This action was brought pursuant to the Civil Rights Act, 42 U.S.C. § 1983 (jurisdiction to sue in this Court being invoked pursuant to 28 U.S.C. § 1343(3)), to recover damages in excess of a million dollars from certain state officials and attorneys whose alleged conduct under color of state law - in one way or another said to be related to plaintiff's unsuccessful marital litigation in the Family Court of Chenango County - is claimed to have deprived plaintiff of federally protected rights.

 The threshold question presented, where concededly there is an absence of diversity jurisdiction, is whether there is federal question jurisdiction pursuant to 28 U.S.C. § 1331(a).

 After holding hearings at Syracuse on January 8 and 22, 1968, and upon consideration of the complaint, motions, briefs, affidavits, exhibits and all papers filed herein, the Court concludes that no substantial federal question is presented. Accordingly, the action is dismissed for lack of subject matter jurisdiction, with costs to defendants.

 PARTIES TO THE ACTION

 The sole plaintiff and all six defendants are citizens of the State of New York.

 Plaintiff, a resident of Sherburne, N.Y., alleges that he is engaged in the construction business, the rental business, the business of operating custom farming equipment and "is actively engaged in the political field."

 At the time of the acts complained of, defendant Kathleen Belden (now Kathleen Belden Tamsett), a resident of Norwich, N.Y., was the Clerk of the Family Court of Chenango County.

 Defendant Joseph J. Benenati, Jr., a resident of Norwich, N.Y., is the Sheriff of Chenango County.

 Defendant David F. Lee, Jr., a resident of Norwich, N.Y., is a Justice of the Supreme Court of the State of New York.

 Defendant Edward J. Lee, a resident of Norwich, N.Y., is a practicing member of the bar of the State of New York and is one of five members of the Board of Trustees of the David L. Follett Memorial Library - a Supreme Court Library - at Norwich, having been appointed to the Board of Trustees by the Governor pursuant to N.Y. Judiciary Law § 827 (McKinney Supp.1967).

 Defendant Lynn N. Peterson, a resident of Norwich, N.Y., is the County Judge, Family Court Judge and Surrogate of Chenango County.

 Defendant Joe Schapiro, a resident of Hamilton, N.Y., is a practicing member of the bar of the State of New York and represented plaintiff's wife, Ruth Jemzura, in marital litigation in the New York state courts.

 PLAINTIFF'S CLAIMS

 Plaintiff's rambling complaint, filed herein November 7, 1967, is something less than a model of clarity. Viewing his claims, however, in the light most favorable to plaintiff, as gleaned from his complaint, his affidavits, his statements in open court and all other papers and proceedings before this Court, the following are plaintiff's essential claims in this action:

 
(1) First Cause of Action ($1,000,000 Damages Demanded)
 
That during the period from November 4, 1964 to January 4, 1967, defendants Belden, Benenati, Peterson and Schapiro conspired to deprive plaintiff of due process of law by having him arrested for contempt of an order of the Chenango County Family Court which directed him to pay $50 per week for the support of his two minor children - the gravamen of plaintiff's grievance being the technical defects of failing to file the Family Court support order of November 4, 1964 in the Chenango County Clerk's Office (N.Y. Family Court Act § 217 (McKinney Supp.1967)) and failing to have the order signed by the Clerk of the Chenango County Family Court or by the Chenango County Clerk (N.Y. CPLR § 5016(a) (McKinney ...

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