John F. Martin, of Martin & Wiggins, New York City, for appellant.

Eugene R. Scheiman, Frank W. Krogh, Thomas R. Jones, of Cahill Gordon & Reindel, New York City, for appellees.

Before OAKES, Circuit Judge, NEAHER, District Judge,* and WYZANSKI, Senior District Judge.**

WYZANSKI, Senior District Judge:

Plaintiff appeals from the District Court's summary judgment dismissing his claim on the merits.1

Plaintiff, William S. Herrmann was a tenured professor at defendant Brooklyn Law School until the school dismissed him on September 17, 1975. Plaintiff's confusing complaint names as defendants Brooklyn Law School and 38 individuals, including the dean of the school, some of its trustees, and some of its faculty. Plaintiff alleges that he is a citizen of Connecticut and all defendants are citizens of New York, and that the District Court has jurisdiction under 28 U.S.C. §§ 1331, 1332, and 1343. As we read the complaint2 it alleges violations of 42 U.S.C. §§ 1983, 1985(2) clause 1, 1985(2) clause 2, and 1985(3), as well as violations of the law of New York. Plaintiff prayed that the Court should direct Brooklyn Law School to restore him to his position as a tenured law professor, that the Court should declare invalid the school's resolution removing him from office, and that he recover two million dollars in damages.

After receiving all the material the parties chose to submit, the District Court on October 19, 1977 filed a memorandum opinion and entered judgment for defendants.

In his brief in this court plaintiff limits the questions presented to his claims under 42 U.S.C. §§ 1983, 1985(2) and 1985(3). We, therefore, rule that he has abandoned any claims which do not involve alleged violations of those statutes. Any claims which rest on local law and fall within the diversity jurisdiction statute, 28 U.S.C. § 1332, are not before us.

It will be most convenient if we take the claims in the following order: (1) 42 U.S.C. § 1983, (2) 42 U.S.C. § 1985(3), (3) 42 U.S.C. § 1985(2) claim 2, and (4) 42 U.S.C. § 1985(2) claim 1.

The 42 U.S.C. § 1983 Claim

42 U.S.C. § 1983 provides that:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

It is well-settled that in order to establish a claim based on 42 U.S.C. § 1983, plaintiff must prove that at least one of the defendants acted under color of state law. Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2nd Cir. 1973).

In paragraphs 16, 17 and 18 of the complaint plaintiff in effect alleges that defendants conspired with Edward Thompson, the Administrative Judge of the Civil Court of the City of New York who, under color of state law, subjected him to the deprivation of his civil rights under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States.

To meet his burden of proving that Thompson, acting under color of office, subjected him to a deprivation of his Constitutional rights, plaintiff offered evidence to the following effect:

(1) April 2, 1973, in the Civil Court of the City of New York plaintiff brought an action for slander against his colleague Professor Crea. Professor Crea filed a counterclaim. The case came before Judge Kleiger.

(2) Judge Edward Thompson, a defendant in the case at bar, was both Deputy Administrative Judge of the Civil Court of The City of New York and a trustee of the Brooklyn Law School. Judge Thompson is the supervisor of Judge Kleiger, but the scope of Judge Thompson's authority as Deputy Administrative Judge is not described.

(3) On October 1, 1973 on the stationery of the Brooklyn Law School, Raymond E. Lisle, the Dean of the School, notified Professors Crea and Herrmann that Justice Thompson "expects to see you in his Chambers at 2:30 (later changed to 2:00) p. m. on Tuesday, October 2, 1973, with regard to the current litigation. He said he will ask Judge Kileger (sic) to be present."

(4) Plaintiff went to Judge Thompson's office on October 2, 1973, but Judge Thompson told plaintiff that this was the wrong day and to return October 4. Judge Thompson, then, had his chauffeur drive plaintiff back to the law school.

(5) October 4 plaintiff was ill and telephoned the dean's secretary, Ms. Dolores Kuebler, so to advise Judge Thompson. Shortly thereafter plaintiff received a telephone call from Ms. Kuebler "advising him that he was ordered to telephone Judge Thompson at once."

(6) Plaintiff telephoned Judge Thompson and had a conversation with him during which Judge Thompson said "Judge Kleiger, Professor Crea and Mr. Falzone (Crea's lawyer) are here with me what's wrong with you?" Plaintiff said he was ill. Judge Thompson then said, "I want a withdrawal of your action from you and I want it right now; I have news for you, your case is going nowhere, I have spoken to Judge Kleiger and all the judges in Brooklyn know or will know about this case and you are going to lose it; the Board of Trustees (of Brooklyn Law School) are tired of your nonsense in bringing this action and they want it withdrawn and I am ordering you to withdraw it today." Judge Thompson then ordered defendant to appear in Judge Kleiger's chambers in Brooklyn at a later date.

(7) Plaintiff thereafter appeared in Judge Kleiger's chambers. That judge said "I have had discussions with Judge Thompson concerning this matter and I am telling you, you had better withdraw your lawsuit or you will be in serious trouble at the law school. You will not get five cents recovery in your lawsuit and you better drop it."

(8) However, plaintiff did not drop his suit.

(9) October 8, 1976 Judge Dematteo, who had replaced Judge Kleiger, granted plaintiff's motion for summary judgment dismissing the counter-claim. The case is still pending in the Civil Court and has been placed on the trial calendar by plaintiff.

The foregoing evidence indicates that in most of his actions connected with the case of Herrmann v. Crea, Thompson was acting in his capacity as a trustee of Brooklyn Law School, and not in his capacity as a state court judge. But there are ambiguities. When Dean Lisle ordered plaintiff to get in touch with Thompson, it is arguable that Thompson was selected not merely because he was a trustee but also because he was Deputy Administrative Judge of the court in which plaintiff had brought suit against Professor Crea. Moreover, it is plausible to contend that it was in his role as Deputy Administrative Judge that Thompson said, if plaintiff quotes him correctly, that, "I have spoken to Judge Kleiger and all the judges in Brooklyn know or will know about this case and you are going to lose it." So we cannot say that there is not a genuine dispute between plaintiff and defendants as to whether Thompson sometimes acted under color of his office as Deputy Administrative Judge in connection with Herrmann v. Crea.

However, there is no genuine dispute between plaintiff and defendant that Thompson did not adversely affect that suit. After Thompson's intervention, the case was transferred to Judge Dematteo who granted plaintiff's motion to dismiss defendant's counterclaim, and thereafter placed the case on the trial calendar, where it still is pending. Thus, plaintiff has failed to show, as is required by 42 U.S.C. § 1983 that under color of law he actually3 "subjected" plaintiff to the "deprivation" of any Constitutional rights.4

We do not need to consider in connection with 42 U.S.C. § 1983 what Thompson did as a trustee in discharging plaintiff, because indisputably Thompson was then acting in a private capacity and not under color of state office.

Hence we agree with the District Judge's conclusion that with respect to plaintiff's claim based on 42 U.S.C. § 1983 defendants were entitled to summary judgment.5

The 42 U.S.C. § 1985(3) Claim

42 U.S.C. § 1985(3) provides a remedy

"If two or more persons in any state . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws."

Despite the breadth of the language, the Supreme Court in Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338, held that in order to maintain an action under § 1985(3) "there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator's action."

To meet the requirement enunciated in Griffin, paragraph 16 of the complaint alleges that "the defendants conspired . . . to interfere with . . . his work on behalf of advancing the opportunities and equality of minority people to deprive him of his employment and to a livlihood (sic) for himself and the equal enjoyment of rights." Further statements in paragraphs 24 and 25 allege that defendants conspired to deny plaintiff equal protection of the laws because of plaintiff's "steps to change the defendants' policy so as to enable the defendant law school to hire minority employees" and because "they did not condone plaintiff's advocacy of racial equality and his opposition to the practice of racial discrimination that existed within Brooklyn Law School."

The only evidence which plaintiff offered to prove his allegations was (1) that the Brooklyn Law School had disproportionately few Black instructors, (2) that when plaintiff urged that the Committee on Faculty Selection propose a qualified Black, Leon B. Appelwhaite, the Committee did not recommend him, and (3) that plaintiff was constantly advocating that more Blacks should be named.

Plaintiff does not point to a single instance where any of the defendants reprimanded plaintiff, disciplined him, refused him promotion or salary increase, or in any way expressed hostility to plaintiff because of his advocacy of Black persons or other minorities. All that is offered is a memorandum dated March 22, 1974 from Professor Yonge, Chairman of the Committee on Faculty Appointments to Dean Lisle. This memorandum, principally criticizes plaintiff for his absences from 30 of the 50 interviews held by the committee, and for usually refusing when present to participate in interviewing other than Blacks. The memorandum shows no hostility to Blacks, and indeed reports that in New Orleans the committee granted many more interviews, proportionately, to Black than to White applicants.

Even if defendants have interfered with plaintiff's advocacy, there is no showing that they acted with a discriminatory animus. Proof that a discharged person is Black or an advocate of Blacks does not justify an inference that the person who caused the discharge was racially motivated.

In short, there is no evidence that defendants dismissed plaintiff as a professor, or otherwise penalized him, because of his advocacy of Blacks or other minorities.

Hence we agree with the District Judge's conclusion that with respect to plaintiff's claim based on 42 U.S.C. § 1985(3) defendants were entitled to summary judgment.

The 42 U.S.C. § 1985(2) Clause 2 Claim

42 U.S.C. § 1985(2) clause 2 provides for an action

"if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws . . .."

Paragraph 16 of the complaint alleges in words copied from 42 U.S.C. § 1985(2), clause 2 that defendants conspired together "for the purpose of impeding, hindering, obstructing, and defeating the due course of justice with the intent to deny plaintiff the equal protection of the laws."