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SANTORA v. CIVIL SERV. COMMN.

April 4, 1977

Frank SANTORA and John S. Iannone, Plaintiffs,
v.
The CIVIL SERVICE COMMISSION, CITY OF NEW YORK, Alphonse E. D'Ambrose, Personnel Director and Chairman, Department of Personnel, Civil Service Commission, Anthony R. Ameruso, Commissioner of Highways, and Harrison J. Goldin, Comptroller, Defendants


Werker, District Judge.


The opinion of the court was delivered by: WERKER

MEMORANDUM DECISION

WERKER, District Judge.

 On April 12, 1976, plaintiffs filed this action to overturn the Department of Personnel's December, 1972 decision *fn1" removing them from allegedly tenured positions as District Foremen (Highway Maintenance) and requiring them to resume their previous positions as Foremen of Asphalt Workers. Defendants now seek to dismiss the complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure on the ground that the action is barred by both the controlling statutes of limitation and the doctrine of res judicata. Although the defense of res judicata seems meritless, *fn2" for reasons noted below, the court will dismiss the complaint.

 The complaint alleges that defendants violated plaintiffs' rights under the due process and equal protection clauses of the fifth and fourteenth amendments by failing to afford them any hearing prior to demotion and by restricting eligibility for promotion to union employees. Plaintiffs seek to "review, vacate and annul" the Department of Personnel's action and in addition to $20,000 in damages further request "a declaratory judgment and writ of mandamus" directing their reinstatement as District Foremen. Jurisdiction for the court to hear claims pursuant to 42 U.S.C. § 1983 (1970) is alleged under 28 U.S.C. §§ 1343(3) and 1343(4) (1970); and for the court to hear constitutional claims, under 28 U.S.C. § 1331(a) (1970).

 DISCUSSION

 The proper period of limitations to be applied to actions brought under either section 1983 or the fourteenth amendment must be determined by reference to the alternatives available to litigants bringing comparable suits in the courts of this state, with the controlling period ordinarily the one thought to be "most appropriate" under state law. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975); Fine v. City of New York, 529 F.2d 70, 76-77 (2d Cir. 1975).

 In this jurisdiction, it has been established beyond peradventure that the state statute of limitations applicable to section 1983 actions is the three-year period for actions "to recover upon a liability, penalty or forfeiture created or imposed by statute" found in section 214(2) of the New York Civil Practice Law and Rules (CPLR) (McKinney 1972). E.g., Meyer v. Frank, 550 F.2d 726 (2d Cir. 1977); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974); Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.), cert. denied, 414 U.S. 872, 94 S. Ct. 102, 38 L. Ed. 2d 90 (1973); Romer v. Leary, 425 F.2d 186, 187 (2d Cir. 1970); see Swan v. Board of Education, 319 F.2d 56, 60 (2d Cir. 1963). Accordingly, since this action was instituted more than three years after the demotion took place, plaintiffs' section 1983 claim is time-barred and must be dismissed. *fn3"

 Plaintiffs also seek to imply a cause of action against the City of New York directly from the fourteenth amendment with jurisdiction predicated upon 28 U.S.C. § 1331(a). Were this possible, the controlling statute of limitations would undoubtedly be the six-year period contained in the so-called "omnibus" clause *fn4" of CPLR § 213(1) (McKinney 1972), and the instant action would be seasonable. But it is this court's considered opinion that no such cause of action may be stated.

 The Supreme Court did hold in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), that actions for damages against federal officers may be predicated directly on the fourth amendment without reliance upon a statutory springboard, but it is questionable, at best, whether the rationale of that case extends to the due process and equal protection clauses of the fourteenth amendment, which form the basis of the instant action, or to suits against nonfederal officers or agencies. See generally Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv.L.Rev. 1532 (1972).

 Although the issue has been addressed in this circuit by both the Court of Appeals and several district courts it remains unresolved. In Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975), Judge Smith confidently declared for a divided Second Circuit panel that "the Braults' invocation of the Fourteenth Amendment's Due Process Clause as the source of their claim for relief comes within Bivens ' sweeping approbation of constitutionally-based causes of action." Id. at 734 (Timbers, J., dissenting). However, the force of that statement is much attenuated by the Second Circuit's subsequent decision, on rehearing en banc, to dismiss the complaint on unrelated grounds for failure to state a cause of action. *fn5"

 Since Brault, in Fine v. City of New York, supra, the Second Circuit again was presented with the question of whether substantive liability could be imposed directly under the fourteenth amendment. However, the Fine court never reached that question; rather, it remanded the action to the district court for a determination as to whether the fourteenth amendment claim would be time-barred under the most appropriate limitations period, even if it stated an otherwise sufficient cause of action. *fn6" In doing so, the Court of Appeals noted that it "should not reach out to decide constitutional questions unnecessarily." 529 F.2d at 76.

 Thus, confronted with two appellate decisions indicative of the Second Circuit's reluctance to declare the limits of Bivens, the district courts of this circuit have attempted to resolve the question left unanswered by Brault and Fine. In Mitchell v. Libby, 409 F. Supp. 1098, 1099 (D.Vt.1976), Chief Judge Holden concluded, based on the en banc decision in Brault, that decisions rejecting suits under the fourteenth amendment "may be regarded as accurate reflections of the present state of the law in the Second Circuit." Similarly, although not required to resolve the issue, Judge Platt indicated in Turano v. Board of Education, 411 F. Supp. 205, 212 (E.D.N.Y.1976), that he had "substantial doubts" as to whether the plaintiff there could maintain an action for money damages under the fourteenth amendment.

 Conversely, in Savage v. Kibbee, 426 F. Supp. 760 (S.D.N.Y.1976), this court read the Brault decision en banc more narrowly, commenting that "even if the defendants are not persons within the meaning of section 1983, jurisdiction to hear this cause of action may be found under 28 U.S.C. § 1331(a)." 426 F. Supp. at 766 . . . (dictum). Most assuredly, this is not an isolated view. See Sanabria v. Village of Monticello, 424 F. Supp. 402 (S.D.N.Y.1976) (Cannella, J.); Second Circuit Review, 1974-75 Term -- Federal Jurisdiction, 42 Brooklyn L.Rev. 1097, 1117-18 n. 87 (1976). But see Perzanowski v. Salvio, 369 F. Supp. 223, 229 (D.Conn.1974) (Clarie, J.). I am persuaded, however, that the Second Circuit will hold Bivens inapplicable to claims asserted against officers and agencies of municipalities under the fourteenth amendment once it is squarely presented with the issue. Consequently, I conclude that plaintiffs' fourteenth amendment claim must be dismissed for failure to state a cause of action.

 At the outset, I note that plaintiffs' constitutional claim, on its face, is neither frivolous nor interposed for the sole purpose of obtaining federal jurisdiction, and that defendants have not challenged the allegation that $10,000 is in controversy. *fn7" The court is therefore empowered, under the general federal question jurisdictional grant of section 1331(a), to proceed to a consideration of the merits of the complaint, Bell v. Hood, 327 U.S. 678, 682-83, 66 S. Ct. 773, 90 L. Ed. 939 (1946), and specifically, to a ...


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