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BERGMAN v. STEIN

November 19, 1975

Bernard BERGMAN, Plaintiff,
v.
Andrew STEIN et al., Defendants



The opinion of the court was delivered by: STEWART

MEMORANDUM

 STEWART, District Judge.

 An action is brought by plaintiff, Bernard Bergman, against Andrew Stein, a member of the New York State Assembly and then Chairman of the Temporary State Commission on Living Costs and the Economy (the " Temporary Commission"), William D. Cabin, then Assistant New York State Welfare Inspector General, and John Hess, a reporter employed by The New York Times. Bergman alleges that defendants conspired together to inflame public opinion against him so as to force public officials to proceed against him in civil and criminal actions and to prejudice future jurors and judges who might hear his case. Bergman claims that the actions of defendants violated his First, Fourth, Fifth, Sixth, and Fourteenth Amendment Rights and are thus actionable under 42 U.S.C. §§ 1983 and 1985. Invoking the court's jurisdiction under 28 U.S.C. §§ 1331 and 1343, plaintiff seeks permanent injunctive relief restraining defendants from unreasonable interference with his civil rights, a declaratory judgment of his rights, compensatory damages of $500,000.00 and punitive damages of $500,000.00, as well as costs and attorney fees. A request for preliminary injunctive relief was withdrawn shortly after the complaint was filed.

 Defendants have all moved to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure; plaintiff's motion for expedited discovery was opposed by defendant Hess, who sought to stay discovery pending the disposition of this motion to dismiss. Discovery was stayed on February 6, 1975.

 Bernard Bergman owns and operates nursing homes in New York. During the course of investigations by the press and by legislative bodies into the conditions of housing and care for the elderly, Bergman's activities came under public scrutiny. His name featured prominently in a series of articles, written by defendant Hess, which appeared in The New York Times, commencing in August of 1974. Bergman's activities were also the subject of investigations by the Temporary Commission *fn1" chaired by defendant Stein and by defendant Cabin *fn2" of the Office of the State Welfare Inspector General. Much public attention was focused upon what has been described as the

 
". . . intolerable abuse of service, massive profiteering, administrative inadequacy, legislative deficiency and political impropriety . . ."

 which permeates the nursing-home industry. *fn3" The Temporary Commission issued its "Report on Nursing Homes and Health Related Facilities in New York State" in April of 1975. New York State investigations continued under Charles Hynes, a special prosecutor, and Morris Abrams, Chairman of the Moreland Commission on Nursing Homes. Federal investigations of nursing home conditions are also on-going.

 On August 5, 1975, Bergman and others were indicted in the United States District Court for the Southern District of New York and in the Supreme Court for New York County on charges of income tax fraud, filing false statements, and conspiracy. Bergman pleaded not guilty later that month. The federal prosecution has been stayed pending the termination of the state proceedings. A trial in state court is to begin in December of 1975. The media coverage of the above-described events has frequently highlighted Bergman's involvement with practices of nursing-home operations which have been criticized. *fn4"

 Bergman contends that defendants Stein and Cabin, acting under color of state law, conspired with defendant Hess, as well as with other unknown individuals, to initiate much of the federal and state investigations of him, to secure his indictment and to destroy his business and his personal reputation. Bergman alleges that Stein usurped the lawful function of the Temporary Commission and used it as the vehicle for harassment of Bergman and for the personal gain of Stein, that Cabin joined Stein by illegally using the Welfare Inspector General's Office to focus attention on Bergman, and that together they leaked confidential information to the press. Bergman contends that the resulting "barrage of unfair, inaccurate, maliciously false and prejudicial reports" [Complaint, P9(c)] led to his being singled out for public scorn and to the "stampeding" of law enforcement officials to bring criminal charges against him. Plaintiff further alleges that the conspiracy of the defendants, which purportedly caused the massive publicity, has

 1) led many, who would normally associate with him, including attorneys and elected officials, to refrain from doing so, thus depriving him of his right of free association, his right to petition government, and his right to counsel,

 2) has denied him of his right to an impartial review of the facts by judges and jurors,

 3) has deprived him of his right to practice the business of his choice,

 4) has deprived him of his right to privacy, and

 5) has subjected him to unreasonable searches ...


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