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Friedlander v. Cimino

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: July 9, 1975; As Amended July 23, 1975.

DANIEL FRIEDLANDER, ISADORE JACOBS, HARRY RONIS, AND STANLEY WEINREB ON BEHALF OF THEMSELVES, AND ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,
v.
JOSEPH CIMINO, M.D., INDIVIDUALLY AND AS COMMISSIONER OF THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK; THE DEPARTMENT OF HEALTH OF THE CITY OF NEW YORK; THE BOARD OF HEALTH OF THE CITY OF NEW YORK; GORDON CHASE, INDIVIDUALLY AND AS ADMINISTRATOR OF THE HEALTH SERVICES ADMINISTRATION, AND THE HEALTH SERVICES ADMINISTRATION; HOLLIS S. INGRAHAM, M.D. INDIVIDUALLY AND AS COMMISSIONER OF THE DEPARTMENT OF HEALTH OF THE STATE OF NEW YORK AND THE DEPARTMENT OF HEALTH OF THE STATE OF NEW YORK; THE PUBLIC HEALTH COUNCIL OF THE DEPARTMENT OF HEALTH OF THE STATE OF NEW YORK; CASPER WEINBERGER, INDIVIDUALLY AND AS SECRETARY OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE OF THE UNITED STATES OF AMERICA AND THE DEPARTMENT OF HEALTH, EDUCATION AND WELFARE OF THE UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES

Appeal from the order of the United States District Court for the Southern District of New York, Dudley B. Bonsal, Judge, dismissing the complaint which alleged violations of the due process and equal protection clauses of the Constitution. 385 F. Supp. 1357 (S.D.N.Y. 1974). Reversed and remanded.

Kaufman, Chief Judge, Smith and Meskill, Circuit Judges.

Author: Per Curiam

The appellants in this appeal initiated the underlying class action, 42 U.S.C. Sec. 1983 suit in the District Court for the Southern District of New York. The appellants are non-physician, self-employed clinical laboratory directors who are subject to certain licensing requirements of New York State law and New York City Health Code regulations.*fn1 In their complaint, the appellants alleged that the defendants below had violated their Fifth, Thirteenth and Fourteenth Amendment rights by requiring them, but not certain physicians, to perform proficiency tests prepared and graded by the Department of Health of the City or State of New York.*fn2 Section 13.03(a) of the New York City Public Health Code and Section 579 of the New York Public Health Law exempt licensed physicians and their employees from the proficiency testing requirements if the chemical analyses being performed are done "solely as an adjunct to the treatment of [their] own patients." This exemption does not extend to physicians who operate "clinical laboratories."

The District Court, upon motions made by the City and State defendants, dismissed the complaint for failure to state a substantial federal question upon which jurisdiction may be founded.

In dismissing the complaint, the District Court gratuitously added that "If plaintiffs feel that defendants are failing to observe the standards prescribed in the statutes and regulations, they should seek relief from the administrative agencies involved and, if that fails, in the State Courts." We understand this comment to be only a suggestion to the plaintiffs and not the court's opinion with respect to the exhaustion of state remedies doctrine. Since the appellants in this case have challenged discriminatory agency enforcement, their only meaningful state remedy would be judicial. It is clear, however, that exhaustion of state judicial remedies is not required in a case brought pursuant to 42 U.S.C. Sec. 1983 and 28 U.S.C. Sec. 1343. Steffel v. Thompson, 415 U.S. 452, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974) and the cases cited therein at p. 473. See also Damico v. California, 389 U.S. 416, 19 L. Ed. 2d 647, 88 S. Ct. 526 (1967).

After hearing oral argument, the only issue left for this Court to decide is whether the complaint sufficiently alleges discriminatory enforcement of the law; i.e., a violation of the appellants' equal protection rights guaranteed by the Fourteenth Amendment of the Constitution.*fn3

Appellants allege that the City and State Departments of Health "permit groups of physicians to operate clinical laboratories in violation of the licensing and performance testing requirements of the applicable law."*fn4 They also allege that the City Department of Health permits these physician-operated laboratories to perform tests "on referral from other physicians in violation of the licensing and performance testing requirements to which licensed laboratories are subjected."*fn5

In its opinion, the District Court found that "plaintiffs fail to allege in their complaint that defendants had knowledge of these violations." Relying on Snowden v. Hughes, 321 U.S. 1, 8, 88 L. Ed. 497, 64 S. Ct. 397 (1944) the District Court concluded that appellants had not alleged all of the elements necessary for a successful equal protection claim. Snowden clearly holds that intentional or purposeful discrimination is an essential element of a valid claim of unconstitutional, unequal statutory enforcement.

While clarity and precision are desirable in any pleading, the Federal Rules of Civil Procedure (F.R.C.P.) require little more than an indication of the type of litigation that is involved. A generalized summary of the claims and defenses, sufficient to afford fair notice to the parties is enough. Conley v. Gibson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); See 2A Moore, Federal Practice Sec. 8.02 at p. 1611 (2d ed., 1974). Rule 8(a)(1) requires that a plaintiff plead his basis for federal jurisdiction. That requirement, however, is met by the plaintiff's alleging a set of facts which show that the defendant has violated his constitutionally guaranteed equal protection rights.*fn6 Bell v. Hood, 327 U.S. 678, 90 L. Ed. 939, 66 S. Ct. 773 (1946). Cf. Hagans v. Lavine, 415 U.S. 528, 536, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974); Dioguardi v. Durning, 139 F.2d 774 (2d Cir., 1944), application denied 326 U.S. 698, 66 S. Ct. 481, 90 L. Ed. 411 (1946). Furthermore, F.R.C.P. 8(f) instructs the courts to construe pleadings so as to do substantial justice.

Appellants' complaint sufficiently pleaded purposeful discrimination for jurisdictional purposes under the equal protection clause. In paragraphs 26 and 27 of their complaint, appellants, who are subject to the above-mentioned requirements set forth in the New York Public Health Law and the New York City Public Health Code, charged that the defendants "permit" violations of those laws by physicians. Webster's Third New International Dictionary (Unabridged) (1963), defines "permit" as follows: "(1) to consent to expressly or formally: grant leave for or the privilege of; ALLOW, TOLERATE." The use of the word "permit" in paragraphs 26 and 27 of the complaint is broad enough to provide sufficient notice that the defendants knowingly and purposefully allowed physicians to violate the relevant laws.*fn7

The appellants went further in their claim of purposeful discrimination aimed at driving them out of business by unregulated competition.

Paragraph 44 of the complaint alleges:

"The . . . enforcement policy of the various defendant agencies charged with enforcing the laws and promulgating regulations pursuant thereto are purposefully designed to promote the private interests of pathologists and to establish a monopoly for pathologists in the clinical laboratory profession."

Factual evidence adduced on a motion for summary judgment or at trial may show that these charges are groundless. That decision, however, should not have been made on the motion to dismiss.

Giving the complaint the liberal interpretation required by the rules, we hold that it did state a substantial federal question upon which jurisdiction may be founded. The District Court should have denied the State and City defendants' motions to dismiss the complaint.

Reversed and remanded.

Disposition

Reversed and remanded.


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