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Zemsky v. City of New York

decided: June 12, 1987.

HARRY N. ZEMSKY, PLAINTIFF-APPELLANT,
v.
THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, VICTOR VILAREAL, ALAN J. IRGANG, JOHN SISTI, ROBERT J. LEVENTHAL, PETER ROSENBERG, XAVIER FRANCIS RUGGIERO, LOFTUS NOVELTY AND MAGIC COMPANY, A CORPORATION, DOE ONE, DOE TWO, DEFENDANT-APPELLEES



Appeal from an order of the United States District Court for the Eastern District of New York (Henry Bramwell, Judge) staying certain of plaintiff's claims under 42 U.S.C. § 1983 pending the disposition of related state court proceedings and dismissing the remainder of plaintiff's claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986 and state tort law. Affirmed in part, reversed in part, and remanded.

Author: Winter

Before: OAKES and WINTER, Circuit Judges, and ZAMPANO, Senior District Judge.*fn*

WINTER, Circuit Judge:

Harry Zemsky appeals pro se from Judge Bramwell's order staying certain of his federal claims pending the disposition of related stated court proceedings and dismissing the remainder of his federal and state claims. We reverse the stay of certain of his federal civil rights claims against the City of New York, the Board of Education of the City of New York, and five school officials*fn1 (collectively referred to as "the municipal defendants"). We affirm the dismissal of his remaining claims.

BACKGROUND

Zemsky is a social studies teacher employed by the Board of Education at the Franklin D. Roosevelt High School in Brooklyn. He claims to have suffered personal injuries as a result of six assaults on him by students at the school between June 1982 and November 1985.*fn2 His complaint*fn3 alleges, inter alia, that the municipal defendants refused to discipline the students involved in the assaults, failed to provide adequate security at the school, conspired to conceal evidence relevant to the assaults, defamed and harassed him, and interfered with his performance as a teacher. The complaint contends that these actions violated Zemsky's rights under the United States Constitution and various federal civil rights statutes. Zemsky also asserts federal civil rights claims against a former student who allegedly participated in two of the assaults and state product liability claims against the manufacturer of "disappearing ink" that allegedly was squirted into his eyes during one of the assaults.

The municipal defendants moved to dismiss the complaint in its entirety. The district court held that Zemsky had failed to state a claim under 42 U.S.C. §§ 1981, 1982, 1985, and 1986 (1982), because he had not alleged that the defendants' actions were motivated by racial or class-based animus. In addition, the court dismissed Zemsky's Section 1983 conspiracy claim for lack of specificity and his Section 1983 defamation claim for failure to allege a deprivation of a constitutionally protected liberty or property interest. The court also held that all of Zemsky's Section 1983 claims based on incidents that occurred more than three years before the filing of his complaint were time-barred. Finally, the court dismissed sua sponte all claims against the former student and the "disappearing ink" manufacturer, reasoning that the complaint did not adequately allege any concerted action between these private parties and persons acting under color of state law.

The district court held that Zemsky had stated a viable Section 1983 claim against the municipal defendants for deprivation of his liberty interest in freedom from bodily harm. The court stayed consideration of this claim, however, pending the resolution of a similar action brought by Zemsky in New York Supreme Court, Kings County, against the City of New York and the Board of Education.

Discussion

I

We turn first to the district court's dismissal of Zemsky's claims against the municipal defendants under 42 U.S.C. §§ 1981, 1982, 1985, and 1986.

A plaintiff states a viable cause of action under Section 1981 or 1982 only by alleging a deprivation of his rights on account of his race, ancestry, or ethnic characteristics. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 55 U.S.L.W. 4626, 4629, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (U.S. May 18, 1987)(§ 1981); Shaare Tefila Congregation v. Cobb, 481 U.S. 615, 55 U.S.L.W. 4629, 4630, 95 L. Ed. 2d 594, 107 S. Ct. 2019 (U.S. May 18, 1987)(§ 1982); Runyon v. McCrary, 427 U.S. 160, 167-68, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976)(§ 1981); Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968)(§ 1982); Keating v. Carey, 706 F.2d 377, 383-84 (2d Cir. 1983)(§ 1981); Glover v. Tower, 700 F.2d 556, 558 (9th Cir. 1983)(§§ 1981, 1982), aff'd on other grounds, 467 U.S. 914, 104 S. Ct. 2820, 81 L. Ed. 2d 758 (1984); Landrigan v. City of Warwick, 628 F.2d 736, 739 n.1 (1st Cir. 1980)(§ 1981); DeFrank v. Pawlosky, 480 F. Supp. 115, 118 & n.9 (W.D. Pa. 1979)(§§ 1981, 1982), aff'd mem., 633 F.2d 209 (3d Cir. 1980). A plaintiff states a viable cause of action under Section 1985*fn4 or 1986 only be alleging a deprivation of his rights on account of his membership in a particular class of individuals. United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 834-35, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983)(§ 1985(3)); Lowe v. Letsinger, 772 F.2d 308, 311 (7th Cir. 1985)(§ 1985(2), (3)); Glover, 700 F.2d at 558 (§ 1985(3)); Kaylor v. Fields, 661 F.2d 1177, 1184 (8th Cir. 1981)(§§ 1985(3), 1986); Landrigan, 628 F.2d at 739 n.1 (§§ 1985(3), 1986); DeFrank, 480 F. Supp. at 118 & n.9 (§§ 1985(3), 1986).

Because Zemsky did not allege that he was deprived of his rights as a result of any racial, ethnic, or class-based animus on the part of the defendants, the district court did not err in dismissing ...


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