Waterman, Hays and Feinberg, Circuit Judges. Feinberg. Circuit Judge (dissenting).
Plaintiffs commenced this action for damages and injunctive and declaratory relief on the ground that defendants have improperly denied Albany Welfare Rights Organization Day Care Center, Inc., the right to provide day care services for children of recipients of public assistance. The Executive Director of A.W.R.O. Day Care Center, Catherine Boddie, is one of the named plaintiffs; the other named plaintiffs, mothers of children eligible to receive day care services, sue on behalf of their children and all others similarly situated. The controversy stems from the refusal of appellees Schreck and Jay, the Commissioner and Deputy Commissioner of the Albany County Department of Social Services, to refer eligible children to the Center. The plaintiffs sought to invoke the jurisdiction of the district court under 28 U.S.C. §§ 1331, 1343 (1970). They set forth twelve "federal" claims for relief and four "pendent" claims based on appellees' alleged violations of state law. We affirm the district court's dismissal of the complaint on the ground that it fails to allege facts sufficient to state claims upon which relief can be granted.
The Albany County Department of Social Services purchases day care services for children eligible to receive such care and pays for the services with funds provided by federal, state, and local agencies. The complaint alleges that Albany County appropriated sufficient funds for the purchase from the Center of day care services for 33 children for the calendar year 1972, subject to the approval of the Center by the New York State Department of Social Services. The New York State Board of Social Welfare issued the Center a certificate authorizing it to operate a day care center and the New York State Department of Social Services issued it a permit to operate a day care center for 20 children. The complaint alleges that thereafter on several occasions plaintiff Boddie and staff members of the Center met with officials of the Albany County Welfare Department and demanded that the Department refer 20 children to the Center for day care. The complaint goes on to state that, although there was a waiting list of over 300 children in Albany County eligible to receive day care services who have not been placed because of the lack of adequate facilities, appellees Schreck and Jay have refused to purchase day care services from the Center as long as plaintiff Boddie is its Executive Director. According to the complaint appellee Schreck told both the temporary Chairman of the Board of Directors of the Center and plaintiff Boddie that he did not believe plaintiff Boddie to be qualified to direct the operations of a day care center and that no children would be referred to the Center as long as plaintiff Boddie remained as Executive Director. The complaint then alleges:
"14. Upon information and belief, the actions of defendants SCHRECK and JAY as aforesaid are in retaliation for plaintiff BODDIE's activities in organizing the Albany Welfare Rights Organization, in asserting the claims of its members and in promoting the interests of the Albany Welfare Rights Organization through speech."
The Center, predicating federal jurisdiction on 28 U.S.C. §§ 1331, 1343(3) (1970), alleged that the refusal of appellees Schreck and Jay to refer children to the Center and the refusal of appellee Wyman to direct appellees Schreck and Jay to refer children, inhibited the Center's constitutional right to associate with Boddie, and violated its constitutional rights to due process and equal protection of the laws, as well as federal and state statutory rights. Plaintiff Boddie, relying for federal jurisdiction on § 1343(3), alleged that the refusal to refer children violated her right to free speech under the First and Fourteenth Amendments. Plaintiffs Shoultz and Milner, suing on behalf of children eligible to receive day care services, predicated jurisdiction on § 1343(3), and alleged that the actions of Schreck and Jay violated rights secured by the First and Fourteenth Amendments and federal statutes, and added pendent claims against appellees Schreck and Jay and appellee Wyman for violations of state law.
The basic constitutional claim raised by plaintiff Boddie is that the refusal of Schreck and Jay to refer children to the Center was in retaliation for her activities in organizing the Albany Welfare Rights Organization and her advocacy of the interests of its members, activities which Boddie claims are protected from state interference by the First and Fourteenth Amendments. The Center maintains that appellees' retaliatory refusal inhibits its right to associate with plaintiff Boddie, and the plaintiffs representing the class of eligible children argue that the refusal "chills" the right to associate with plaintiff Boddie, thus depriving them of rights guaranteed them by the First and Fourteenth Amendments. The Center and plaintiff Boddie also assert Fourteenth Amendment due process and equal protection claims.
The facts alleged in the complaint are insufficient as a matter of law to state a claim for relief under 42 U.S.C. § 1983 and 28 U.S.C. § 1343(3) (1970), and the district court properly dismissed the complaint. Mere conclusory allegations do not provide an adequate basis for the assertion of a claim for violation of these sections. Birnbaum v. Trussell, 347 F.2d 86, 89-90 (2d Cir. 1965); Powell v. Workmen's Compensation Board, 327 F.2d 131, 136 (2d Cir. 1964). See also Brooke v. Family Court of The State of New York, 420 F.2d 296, 297 (2d Cir. 1969), cert. denied, 397 U.S. 1000, 90 S. Ct. 1148, 25 L. Ed. 2d 411 (1970). This court has recently held that conclusory allegations of politically motivated discrimination are insufficient as a matter of law to state a claim for relief. Avins v. Mangum, 450 F.2d 932 (2d Cir. 1971).
The complaint in the instant action presents no facts to support the allegation that the refusal to refer children was in retaliation for Boddie's organizing activities. It appears from the complaint that Boddie "is Chairwoman of the Upstate Welfare Rights Organization and is Treasurer of the Albany Welfare Rights Organization." However the complaint does not suggest any reason to believe that there was any connection between Boddie's official position in the welfare rights groups and appellees' refusal to refer children to the Center. In fact, according to the complaint, appellee Schreck told plaintiff Boddie and the Chairman of the Board of the Center that the reason children would not be referred was because Schreck did not believe Boddie to be qualified to direct a day care center.
The allegation that the refusal to refer children to the Center was a retaliatory measure designed to prevent or to inhibit plaintiff Boddie from exercising First Amendment rights is wholly conclusory. No facts were alleged which would provide any ground for believing that the refusal was politically motivated or which would tend to explain why appellees Schreck and Jay should want to retaliate against Boddie. The complaint was thus properly dismissed as insufficient as a matter of law.
The second issue raised by the parties in this action concerns the question of which officials -- appellee Wyman, as Commissioner of the State Department of Social Services, or appellees Schreck and Jay, as Commissioner and Deputy Commissioner of the county Department of Social Services -- were authorized to determine whether Mrs. Boddie was qualified to serve as a director of the Center. The Center claims that federal law requires that a state, as opposed to a local, official make this determination, and that appellees Schreck and Jay therefore violated federal law in refusing to refer children to the Center because the proper state officials had determined that the Center and its staff were qualified when the certificate and permit were issued. The Center also maintains that appellee Wyman has violated the same federal statutes by failing to use his supervisory powers to compel local officials to refer eligible children to an "approved" day care facility. The same general claim -- that only state officials have authority to determine who is qualified to serve as director of a day care center -- is raised in pendent claims based upon New York law.
The Center sought to invoke federal jurisdiction to decide this issue under the provisions of 28 U.S.C. § 1331(a) (1970). The district court dismissed this "federal question" claim on the ground that plaintiff had not demonstrated that the amount in controversy exceeded $10,000. We need not pass upon that ground for ...