The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
This is an action allegedly founded upon 42 U.S.C. §§ 1981 and 1983. Complaint, P4. Plaintiff Robert Devine, appearing pro se, is an attorney admitted to practice in New York State. Defendant Arthur W. Lonschein is a Justice of the Supreme Court of the State of New York, with chambers in Jamaica, New York. Defendant Robert J. Sise is the Chief Administrative Judge of the Unified Court System of the State of New York. The complaint also identifies the State of New York as a defendant.
Defendants Lonschein and Sise now move to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6), F.R.Civ.P. Both motions introduce by affidavit evidentiary materials which fall outside the boundaries of the complaint. Accordingly I treat the motions as motions for summary judgment under Rule 56.
The papers supporting and opposing the motions reveal the following facts. On September 19, 1984, Mr. Devine appeared before Justice Lonschein in Special Term, Part Two of the Supreme Court, Queens County. Mr. Devine represented an infant plaintiff in a personal injury action, Khan v. Williams, Index No. 952-82. Mr. Devine appeared with his clients before Justice Lonschein for the purpose of obtaining the court's approval of the compromise of the claim.
The transcript submitted with the motion papers reflects that when Mr. Devine first appeared in chambers before Justice Lonschein, he was not wearing a necktie. Justice Lonschein asked Mr. Devine "to step out and to come back into this room properly dressed," by which, the record makes clear, the judge meant wearing a necktie. Mr. Devine thereupon stated that he wished to make a statement for the record. A court reporter was summoned. The record reflects Mr. Devine's contention that Justice Lonschein was subjecting him to sex discrimination, since "women attorneys are not required to wear ties before this Court or any other court. . . ." Tr. at 3. Justice Lonschein adhered to his position. Mr. Devine thereupon produced a necktie out of his coat pocket, put it on, and the Khan matter proceeded.
The complaint filed by Mr. Devine in this Court alleges that he was "subjected to, and the victim of, discrimination, on the basis of sex," P9, in that Justice Lonschein ordered him to wear a tie, and requires other male attorneys to do so, although he does not require female attorneys to wear a tie. PP10-11. The complaint contains comparable allegations of discrimination in respect of the wearing of jackets and removal of hats or headwear upon entering the courtroom, PP11-15, although those particular acts of alleged discrimination do not appear to be implicated in the case.
Justice Lonschein is sued as the perpetrator of allegedly discriminatory acts. Justice Sise is sued on the theory that, in his supervisory position, he "establishes the policy and procedure to be adhered to in the daily operation of the Courts of the defendant State of New York." Complaint, P8.
Plaintiff seeks compensatory and punitive damages, and injunctive relief.
Although the complaint invokes 42 U.S.C. § 1981 as well as § 1983, it is clear that no cause of action arises under § 1981. Plaintiff's claim is solely one of sex discrimination. Section 1981 addresses discrimination on the ground of race. It does not address categories of selectivity based on sex. Runyon v. McCrary, 427 U.S. 160, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976). Accordingly, the claim, if cognizable at all, falls under § 1983. Plaintiff's theory is that the Equal Protection clause of the United States Constitution is implicated. Complaint, § 19. Pendent state claims are asserted under the New York State Constitution and Civil Rights Law. Id. at P18.
The defendant judges enjoy an absolute immunity from plaintiff's claims for damages. Accepting the allegations of the complaint as true, it cannot be argued that either judge lacked jurisdiction over the subject matter before him. The judges are, in consequence, immune from claims for money damages. That immunity extends to § 1983 actions. Dennis v. Sparks, 449 U.S. 24, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980); Stump v. Sparkman, 435 U.S. 349, 55 L. Ed. 2d 331, 98 S. Ct. 1099 (1978); Pierson v. Ray, 386 U.S. 547, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967).
To the extent that plaintiff seeks prospective injunctive relief, judicial immunity is not a bar. Pulliam v. Allen, 466 U.S. 522, 104 S. Ct. 1970, 80 L. Ed. 2d 565 (1984).
Accordingly the question arises, under Rule 12(b)(6), as to whether the complaint states a claim upon which relief can be granted. I conclude that it does not.
There is apparently no case directly in point. However, two federal appellate cases arising out of the job ...