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JONES v. GRUNEWARLD

September 22, 1986.

Ricky JONES, Plaintiff,
v.
Donald GRUNEWARLD, et al., Defendants.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

 Plaintiff Ricky Jones, an inmate at the Ossining Correctional Facility in Ossining, New York, has brought this action pro se pursuant to 42 U.S.C. § 1983, alleging violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment of the U.S. Constitution and New York State law. He has named as defendants Donald Grunewarld, the former president of Mercy College, Thomas Cameron, Assistant Director of Institutional Extensions of Mercy College, Thomas A. Coughlin, III, New York State Commissioner of Corrections, Gordon M. Ambach, New York State Commissioner of Education, Mario M. Cuomo, Governor of New York State and James E. Sullivan, Superintendent of the Ossining Correctional Facility. All defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).

 I.

 In determining the sufficiency of a pro se complaint, a court must construe the complaint liberally, "applying less stringent standards than when a plaintiff is represented by counsel." Robles v. Coughlin, 725 F.2d 12, 15 (2d Cir.1983) (citations omitted). "To warrant dismissal, the complaint, considering all its allegations as true, must be frivolous on its face or wholly insubstantial." Id. (citations omitted).

 With these guidelines in mind, I take as true for the purposes of these motions the following facts:

 Plaintiff was admitted to the educational prison program run by Mercy College ("Mercy") at the Ossining Correctional Facility and completed with honors the spring, 1984 semester. Because his state financial aid was exhausted, however, he could not continue in the program. When plaintiff inquired into the availability of scholarships, he was advised by Thomas Cameron, Assistant Director of Institutional Extensions at Mercy College, that Mercy did not provide scholarships to prisoners. He wrote letters to all of the named defendants except Thomas Cameron to attempt to remedy his situation.

 Having failed to receive satisfaction, plaintiff commenced this action. He contends that Mercy's failure to provide him with a scholarship to further his college education violated Section 136 of the New York Correction Law and deprived him of certain civil and constitutional rights.

 II.

 A. Plaintiff's Claim Against Grunewarld and Cameron

 To state a claim under § 1983, a plaintiff must allege not only that the defendants deprived him of a right secured by the Constitution or federal law, but also that in so doing they acted under "color of state law." Singer v. Bell, 613 F. Supp. 198, 201 (S.D.N.Y.1985); Rendell-Baker v. Kohn, 457 U.S. 830, 835, 102 S. Ct. 2764, 2768, 73 L. Ed. 2d 418 (1982). He will not prevail unless the actions upon which his claims are based are "fairly attributable to the state." See Singer, 613 F. Supp. at 201, citing Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937, 102 S. Ct. 2744, 2753, 73 L. Ed. 2d 482 (1982). The Fourteenth Amendment "erects no shield against merely private conduct, however discriminatory or wrongful." Shelley v. Kraemer, 334 U.S. 1, 13, 68 S. Ct. 836, 842, 92 L. Ed. 1161 (1948); accord, e.g., Blum v. Yaretsky, 457 U.S. 991, 1002, 102 S. Ct. 2777, 2784, 73 L. Ed. 2d 534 (1982).

 "To act 'under color of' state law for § 1983 purposes, however, does not require that a defendant be an officer of the State." Singer, 613 F. Supp. at 201. A private party may be liable under § 1983 for his conduct if he is "a willful participant in joint activity with the State or its agents." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152, 90 S. Ct. 1598, 1605, 26 L. Ed. 2d 142 (1970), cited in Annunziato v. The Gan, Inc., 744 F.2d 244, 250 (2d Cir. 1984). The threshold question, then, as to Mercy College employees Grunewarld and Cameron, is whether their actions were under color of state law.

 The complaint does not address the relationship between Mercy and the state. However, from the materials plaintiff attached as exhibits to the complaint, *fn1" I infer that he attempts to draw a link between Mercy and New York State on the basis that Mercy receives funding from the state. For the purposes of this motion, I assume that Mercy receives funding from government sources.

 However, the fact that Mercy is supported by state funds fails to satisfy the requirement of state action. The U.S. Supreme Court has noted that the mere receipt of public funds by an entity "does not make [that entity's] discharge decisions acts of the state." See Gilliard v. N.Y. Public Library System, 597 F. Supp. 1069, 1075 (S.D.N.Y.1984), citing Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S. Ct. 2764, 2770, 73 L. Ed. 2d 418 (1982). "While state funding may be a factor in determining if a private group's action were taken under color of state law, state funding alone does not transform employment decisions into 'state action' for purposes of § 1983." Id. Even the presence of public funds in significant amounts is insufficient to transmute the action of a private institution into ...


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