The opinion of the court was delivered by: PLATT
Defendants have made an additional motion for an order pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure dismissing this action against the defendant Board of Education for lack of jurisdiction and for an order granting the defendants leave to amend their answer pursuant to Rule 15(a) of said Rules. The background and facts in this action are set forth in the opinion of the Circuit Court of Appeals (Gurfein, J.) reported at 502 F.2d 631 and will not be reiterated herein. The decisions of this Court on two prior motions made following the remand are reported at 400 F. Supp. 1361.
Suffice it to say that Lombard was a probationary teacher in his second year at Public School 151 in Queens, New York, when the principal, the defendant Murphy, submitted a report to the Board recommending that his probationary appointment be discontinued and that he be directed to submit to a medical examination to determine his fitness to teach. In this report the defendant Murphy made statements enumerating various acts which Lombard charges were false, made in bad faith and in retaliation and revenge for certain things done by Lombard.
In May of 1969 Lombard was examined by two staff physicians of the Board and in June of 1969 by a psychologist and was thereafter given an involuntary leave of absence until January of 1970. In the latter month and again in March of 1970 he was further examined and his leave of absence extended until June of 1970.
On April 20, 1970, a hearing was held before a committee of the Superintendent of Schools concerning Lombard's probationary status at which various witnesses gave unsworn oral testimony on his behalf and the committee had before it the reports by the principal and the recommendations of the physicians and psychologists. Following such hearing, the committee recommended that the probationary appointment be discontinued on the following five grounds:
(1) Illogical and disoriented conversation, causing request for examination by the Medical Department, which found him unfit for duty.
(2) Weakness in discipline and class control.
(3) Incompetent and ineffective instructional performance.
(4) Inattention to routine matters such as keeping records of pupil attendance, admission or discharges. Poor relations with Supervisors and Teachers.
(5) Violation of the By-Laws on Corporal Punishment. (A District Superintendent disapproved the defendant Murphy's charge in this respect on the ground of insufficient reliable evidence.)
Following Superintendent of Schools Irving Anker's approval of this report, School Board No. 23 adopted the same on June 11, 1970, to become effective September 10, 1970.
The basis for the first part of defendant Board of Education's motion to dismiss the action as to it is that the Board is not a "person" within the meaning of 42 U.S.C. 1983 and hence it cannot be held liable for either the damages or the equitable relief sought herein.
The complaint in the action, which was filed on March 16, 1972, alleges that "[this] Court has jurisdiction of this action under title 28, section 1343(3), (4) of the United States Code, in that this is an action under title 42, section 1983 of the United States Code, in which the complaint demands equitable relief against the defendant Board of Education to redress its deprivation of plaintiff's rights secured by the Constitution of the United States, and the complaint demands money damages from the ...