The opinion of the court was delivered by: ELFVIN
In this action the following proposed agreed statement of facts
"Plaintiff, RAYMOND M. KELLY, is a former tenured teacher of Defendant BOARD OF EDUCATION [Board of Education of Central School District No. 1 of the Towns of Niagara, Wheatfield, Lewiston and Cambria, Niagara County] employed by said Board for over ten years. On February 5, 1973, the Defendant filed charges against the Plaintiff containing thirteen specifications.
"Thereafter, hearings were held therein before a hearing panel and hearing officer appointed pursuant to statute, said hearings having been held on five separate days between May 3 and June 6, 1973.
"The hearing panel's unanimous findings and recommendations found a basis in the evidence to support Charges 1, 2, 3, 7, 9 and 12, with mitigating factors; and dismissed, for lack of evidence, Charges 4, 5, 6, 8, 10, 11, and 13. In summary, the Panel decreed penalties of reprimand and a fine of $2,500.00, but also determined that Plaintiff should receive full pay and benefits for the 1972-1973 school year.
"Thereafter, and on July 17, 1973, the Defendant BOARD OF EDUCATION concluded that Plaintiff was guilty as charged except one, for three days prior to the determination of the charges by the Board.
"A subsequent appeal to the Defendant COMMISSIONER OF EDUCATION [Ewald B. Nyquist] resulted in an affirmance of the Board's order on November 27, 1973. Finally on March 7, 1974, Plaintiff applied to the Commissioner to reopen said decision which was denied on October 10, 1974. On the appeal before the Commissioner Plaintiff argued that the Board of Education failed to set forth the specific charges they found Plaintiff guilty of, making no findings of fact; that the Board disregarded the hearing panel's findings and recommendations and imposed an unduly severe punishment without sufficient evidence in the record to justify this action; that based on merit and fitness, Plaintiff's dismissal was grossly discriminatory and the Board acted in an unfair, arbitrary and capricious manner; that such action renders the hearing provided for by section 3020-a of the [New York] Education Law a meaningless ritual.
"In his application for a reopening of the Commissioner's decision dismissing this appeal, Plaintiff based his application on the U.S. District Court's decision in Matter of Kinsella, 378 F. Supp. 54 (D.C.), [Kinsella v. Board of Ed. of Cent. Sch. Dist. No. 7, Erie Cty., (1974) ("Kinsella I")] in which the three judge panel for the Western District of New York found section 3020-a of the Education Law constitutionally defective in part."
Plaintiff brings this action under 42 U.S.C. § 1983 with jurisdiction alleged under 28 U.S.C. § 1343(3). Plaintiff also seeks the convening of a three judge court pursuant to 28 U.S.C. § 2281 and § 2284 to declare § 3020-a of the Education Law unconstitutional.
Presently before this court are a motion by plaintiff and cross-motions by defendants for summary judgment pursuant to Fed.R.Civ.P. rule 56 based upon the pleadings and the agreed statement of facts. Because I find that this court is without jurisdiction of the subject matter of this case as to plaintiff's claims against the Board of Education, I deny the motions by plaintiff and defendant Board of Education for summary judgment and dismiss the complaint as to the Board of Education.
The first requisite for federal subject matter jurisdiction under 28 U.S.C. § 1343(3) and its substantive counterpart, 42 U.S.C. § 1983, is that the entity accused of depriving plaintiff of his civil rights be a "person". While the definition of this term has caused substantial controversy since its limitation in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), it has recently and explicitly been decided in this circuit that a board of education is not a "person" for purposes of this statute. Monell v. Department of Soc. Serv. of City of New York, 532 F.2d 259, 263-64 (2d Cir. 1976), cert. granted, 429 U.S. 1071, 97 S. Ct. 807, 50 L. Ed. 2d 789 (1977), and Kornit v. Bd. of Ed., Plainview-Old Bethpage, etc., 542 F.2d 593 (2d Cir. 1976). This court has no subject matter jurisdiction to award relief against the Board of Education pursuant to 28 U.S.C. § 1983.
The inclusion by plaintiff of 28 U.S.C. §§ 2281 and 2284 in its allegation of jurisdiction does not furnish a basis for subject matter jurisdiction. Section 3020-a enjoined under the decision of Kinsella I until appropriate 28, 1974, the New York State Board of Regents approved amended regulations that conformed section 3020-a to the three-judge court's decision. Kinsella v. Board of Ed. of Cent. Sch. Dist. No. 7, etc., 402 F. Supp. 1155 (W.D.N.Y. 1975) ("Kinsella II"). There presently is no substantial constitutional question which would support the further enjoining of section 3020-a. The request for the convening of a three-judge court is denied.
Although there is not a sufficient allegation of subject matter complaint at this time without leave to amend. At the time plaintiff's complaint was filed it was unsettled as to whether a board of education was a "person" under 28 U.S.C.§ 1983. See, e.g., Lombard v. Board of Ed. of City of New York, 407 F. Supp. 1166 (E.D.N.Y. 1976). If the amount in question exceeds $10,000, federal question jurisdiction may exist pursuant to 28 U.S.C. § 1331 as to the action against a board of education asserting that the discharge violated his constitutional rights and seeking reinstatement. In the interest of justice, ...