Alfred Avins v. Robert J. Mangum, as Chairman, State Commission for Human Rights, and State University of New York

450 F.2d 932

• Court: Court of Appeals for the Second Circuit
• Decided: November 8, 1971
• Docket: 92, Docket 71-1507
• Status: Published

Opinions

HAYS, Circuit Judge:

This is an appeal from an order of the United States District Court for the Southern District of New York granting summary judgment to defendants in an action in which plaintiff sought to enjoin defendants from actions which plaintiff alleged were in violation of his constitutional rights and also sought a declaratory judgment holding unconstitutional certain sections of the New York Executive Law. We affirm the judgment of the district court but grant permission to plaintiff to seek leave to file an amended complaint.

The gravamen of plaintiff’s complaint is that he was denied an appointment to the faculty of the Buffalo Law School of the State University of New York solely on the ground of his political beliefs. Plaintiff also alleges that the sections of the New York Executive Law which empower the State Commission Against Discrimination to proceed against discriminatory practices based on race, creed, color or national origin are unconstitutional because they do not, in addition, inhibit discrimination based upon political beliefs.

The district court dismissed plaintiff’s complaint on the ground that in an action brought in the courts of New York, the state court (see Avins v. Gould, 35 App.Div.2d 1043, 316 N.Y.S.2d 560 (3rd Dept.1970)) found no evidence of political discrimination and that “such a factual determination usually is controlling in a subsequent civil rights action growing out of the same incident.” However the record indicates that no such factual finding was made by any New York tribunal except, perhaps, the State Commission for Human Rights which, however, dismissed plaintiff’s complaint on the ground that it had no jurisdiction. The plaintiff is, therefore, not estopped by any former adjudication of the issue he now seeks to present.

While on the present record we do not find it necessary to decide the constitutional question pressed upon us by plaintiff, it does not seem to us to be impossible to argue that a denial of employment in a state supported institution, where it is alleged that the denial is based wholly on an applicant’s holding of at least some types of political views, could pose an issue of deprivation of constitutional rights. See Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), cited by the district court in the present case. However, plaintiff has failed to present that issue because his complaint with respect to the law school’s failure to employ him is wholly conclusory and alleges no facts on which a court could find that the refusal of employment was, as he states, solely based on his political beliefs. In this respect the complaint fails to state a claim on which relief can be granted and must therefore be dismissed as insufficient in law. See Birnbaum v. Trussel, 347 F.2d 86 (2d Cir. 1965); Powell v. Workmen’s Compensation Board, 327 F.2d 131 (2d Cir. 1964). But, while plaintiff may not be able to state facts ■ which would support his claim, we feel constrained not completely to deny him an opportunity to do so, and we therefore order that he be permitted to apply for leave to file an amended complaint on presentation to the district court of a pleading which is legally sufficient.

The complaint is also deficient in naming as defendant the State University of New York rather than the persons who, plaintiff claims, actually deprived him of his rights. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970), cert, denied 400 U. S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439 (1971), noted 70 Colum.L.Rev. 1467 (1970).

We regard as frivolous plaintiff’s claim with respect to the limitation of the statutory jurisdiction of the New York State Commission Against Discrimination to situations involving discrimination on the basis of race, creed, color or national origin.