Appeal from an order of the United States District Court for the Eastern District of New York (Glasser, J.), dismissing appellants' § 1983 suit, and denying appellees' motion for attorneys' fees pursuant to 42 U.S.C. § 1988. Affirmed in part; reversed and remanded in part. Judge Mansfield concurs in a separate opinion.
Before: LUMBARD, MANSFIELD and WINTER, Circuit Judges.
Plaintiffs-appellants Stephen Davidson and Mary Parshall appeal from the dismissal of their § 1983 civil rights action in the Eastern District of New York, Glasser, J. Defendants-appellees Suffolk County District Attorney's Office, Suffolk County Department of Civil Service, and Joseph Keenan, an employee of the Suffolk County District Attorney's Office, cross-appeal from the denial of their motion for attorney's fees, pursuant to 42 U.S.C. § 1988.
We affirm the dismissal of plaintiff's suit, and reverse and remand for reconsideration the denial of defendants' motion for attorneys' fees.
Appellants' § 1983 claim is based on an alleged conspiracy between members of the Suffolk County District Attorney's (D.A.'s) Office and the Suffolk County Department of Civil Service to bypass appellants for civil service appointment as Detective-Investigators with the D.A.'s Office. The events alleged in support of that claim are as follows.
In April, 1978, appellants Stephen Davidson and Mary Parshall, both then employed by the Suffolk County D.A.'s Office as probation officers, and appellee Joseph Keenan, then employed as a provisional Detective Investigator in the same office, took a Suffolk County civil service examination for the permanent position of Detective Investigator. Davidson, Parshall and Keenan were ranked 20, 22 and 44, respectively, on the certified list of eligible candidates issued on October 20, 1978. Subsequent modified lists continued to rank Davidson, Parshall and Keenan in the same relative positions.
On May 22, 1979, Keenan instituted a proceeding in New York state Supreme Court, Suffolk County, pursuant to Article 78 of the New York Civil Practice Law, to strike from the list of eligibles Parshall, Davidson, and three other candidates who ranked above him. Parshall, Davidson, and two of the three other candidates filed a cross-motion to have Keenan struck from the list on the ground that he had concealed on his application the fact that he did not meet the residency requirements. On April 23, 1980, the state court struck Keenan's name from the list, finding that his misstatement of residence was a "fraud of a substantial nature," but denied Keenan's motion to strike appellants' names.
Thereafter, eleven candidates, not including appellants, were appointed from the eligibles list to the position of Detective Investigator. Some of those appointed had been ranked lower than appellants on the list. On August 14, 1981, appellants commenced this action in the Eastern District, alleging that Keenan and the Suffolk County D.A.'s Office had conspired with the Suffolk County Department of Civil Service to bypass appellants for appointment, in retaliation for appellants' having successfully moved in the Article 78 proceeding to have Keenan's name struck from the list. Charging that the conspiracy violated rights guaranteed to them under the First, Fifth, Seventh, Ninthh and Fourteenth Amendments, appellants sought declaratory and injunctive relief and damages, pursuant to 42 U.S.C. §§ 1983 and 1983 and 28 U.S.C. § 2201.
By a pretrial scheduling order dated June 28, 1982, discovery was to be completed by January 15, 1983, and trial was set for September 19, 1983. Although discovery was subsequently extended to March 31, 1983, to allow Davidson and Parshall time to depose defendants, they did not do so. On June 16, 1983, defendants' attorney contacted Davidson's and Parshall's attorney to request that he discuss with his clients the possibility of discontinuing their action, on the grounds that it was frivolous. On September 7, 1983, plaintiff's counsel advised that his clients wished to proceed with the action.
Trial was rescheduled for November 7, 1983. On September 28, 1983, defendants moved to dismiss the complaint under Fed. R. Civ. P. 12(b)(6), or, in the alternative, Fed. R. Civ. P. 56(b), and for an award of attorney's fees from plaintiffs pursuant to 42 U.S.C. § 1988. In support of their Rule 12(b)(6) motion to dismiss, defendants argued that, as to all three defendants, plaintiffs had failed to allege any specific facts to support their conclusory allegations either of deprivation of constitutional rights,*fn1 see Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983), or of conspiracy under 42 U.S.C. § 1985, see Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976). Additionally, they argued that as to the two municipal defendants, plaintiffs had failed to allege that the objectionable conduct charged was the result of a governmental policy or custom, as required by Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), and its prudency, see, e.g., Batista v. Rodriquez, supra. Finally, they argued that as to defendant Keenan, plaintiffs had failed to plead any facts indicating that the objectionable conduct alleged was pursued under color of state law.
In support of their motion in the alternative for summary judgment, defendants submitted, inter alia, an affidavit from Morton Stark, Chief of Examinations for Suffolk County Department of Civil Service, stating that plaintiffs were lawfully bypassed for appointment pursuant to § 61 of the New York Civil Service Law.*fn2 They also submitted an affidavit from George Holmes, Chief Investigator for the Suffolk County D.A.'s Office, stating that Keenan, as Holmes's subordinate, had no authority over the appointments made, and noting that two of the three other cross-movants involved in the successful Article 78 proceedings to remove Keenan from the eligibles list had not been bypassed for appointment, thereby refuting plaintiffs' retaliation theory.
Defendants' motion to dismiss, returnable on October 14, 1983, was served on plaintiffs' attorneys and filed with the court on September 30, 1983 -- several days before the ten-day notice deadline set by the motion practice of Judge Glasser and Fed. R. Civ. P.56(c). When the motion was called on October 14, counsel for plaintiffs, who had submitted no papers in opposition to the motion, requested additional time to obtain affidavits from non-party witnesses. Noting that plaintiffs should have sought an extension of time to file affidavits prior to the motion return date, see Fed. R. Civ. P. 56(f), the court denied plaintiffs' belated request and deemed the motion to be submitted on October 14 unopposed.
On October 20, Judge Glasser's chambers received from plaintiffs' counsel an unfiled "Notice of Cross-Motion to Extend Time to Answer Defendants' Motion," with supporting papers. Declining to consider the opposition papers on the ground that they were untimely filed, on November 30, 1983, the court granted summary judgment to defendants on the basis of their unopposed statement of material facts. The court denied defendants' motion for attorneys' fees, on the ground that as plaintiffs had acted ...