Before MOORE, SMITH and HAYS, Circuit Judges.
This appeal questions the propriety of the district court's dismissal "for lack of jurisdiction" of a complaint seeking damages for violations of the Civil Rights Act of 1871*fn1 We reverse and remand with instructions that the complaint be dismissed for failure to state a claim upon which relief can be granted, with leave to amend.
Plaintiff, Dr. Morton Birnbaum, a physician, brought an action pro se under Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983 (1958), "and other sections of the Civil Rights Laws,"*fn2 against defendants Ray E. Trussell, Commissioner of the New York City Department of Hospitals, Robert J. Mangum, the First Deputy Commissioner, and William Lewis, president of Local 237 of the International Brotherhood of Teamsters. In brief, the complaint alleges that defendants Trussell and Mangum "dismissed the plaintiff, * * * under color of state law, from his position as a physician employed by the Department of Hospitals of the City of New York," and that the department is an agency supported by federal, state and private funds. In bare conclusory terms, the plaintiff alleges that he "was dismissed from his position because of his race" and "would not have been dismissed from his position if he were a Negro instead of being white." He also alleges that defendants Trussell and Mangum
"entered into a conspiracy with the defendant, William Lewis, * * * certain other officials of the same Local 237, certain other union officials and certain other New York City politicians to dismiss the plaintiff because of false and anti-Negro charges leveled by the agents of Local 237 against the plaintiff; that union officials threatened to picket Coney Island Hospital and thereby effectively disrupt the operations of said hospital unless the plaintiff was summarily and illegally dismissed; that such dismissal was opposed by the Medical Board of the Coney Island Hospital; that in spite of the opposition of the Medical Board, the defendants, Trussel [sic] and Mangum, summarily and illegally dismissed the plaintiff; that a false reason was given to the plaintiff and others for the dismissal; and, that the defendants, Trussel and Mangum, have refused to openly state the true reason for the dismissal."
The complaint further alleges that the plaintiff's services for the department met the highest professional standards and
"that the Teamsters' Union leveled the anti-Negro charges against the plaintiff solely to cover up the fact that certain members of the Union who were members of the non-professional staff at the Hospital, and who happened incidentally to be Negro, had failed to render proper care to certain severely and critically ill patients entrusted to their care."
Dr. Birnbaum claims that he was "deprived of his property rights in violation of his legal rights under the XIVth Amendment to the United States Constitution," and demands $25,000 in damages plus costs.
Defendants Trussell and Mangum answered the complaint specifically denying all allegations except that the services of Dr. Birnbaum, "as a per session physician" in the department, "were terminated upon the completion of plaintiffs' [sic] services on May 13, 1963," and that the department is maintained pursuant to the city charter and financed by city, state and federal funds. Defendant Lewis entered a general denial.
The defendants moved to dismiss the complaint for lack of jurisdiction over the defendants, for failure to state a claim upon which relief could be granted, and on the ground that there is no genuine issue as to any material fact. The three defendants filed brief supporting affidavits. Commissioner Trussell's affidavit states that he was in Europe at the time plaintiff was dismissed, that First Deputy Commissioner Mangum assumed the duties of Acting Commissioner with full powers during his absence and that he (Trussell) did not participate in this particular proceeding. First Deputy Commissioner Mangum states in his affidavit that he as Acting Commissioner "advised the plaintiff that his services as a per session physician were no longer required," and that he did not conspire with defendant Lewis or others to dismiss the plaintiff. Lewis's affidavit states that he is not a public official, that he "never in any way asked, demanded, suggested or intimated to the co-defendants, Trussell and Mangum, that the plaintiff be dismissed from his position" and that he never conspired to cause plaintiff's dismissal.
Plaintiff filed a thirty-three page affidavit, with nine exhibits attached, in which he relates in detail four episodes involving controversies with Negro employees of the Coney Island Hospital at which he was employed.
The district court erred in granting the motion to dismiss for "lack of jurisdiction."
As we read the complaint it alleges that the defendants, under color of state law, deprived the plaintiff of his rights under the Fourteenth Amendment, in violation of Rev.Stat. § 1979 (1875), 42 U.S.C. § 1983 (1958)*fn3, and conspired to deprive him of equal protection of the laws in violation of Rev.Stat. § 1980(3) (1875), 42 U.S.C. § 1985(3) (1958)*fn4 A showing that defendants acted "within the scope of their employment and authority" is not sufficient to defeat the district court's jurisdiction. It would nullify the whole purpose of the civil rights statutes to permit all governmental officers to resort to the doctrine of official immunity. The statutory condition of defendant's acting "under color" of state or territorial law contemplates that he act in an official capacity. To the extent that state or municipal officers, such as the defendants Trussell and Mangum, violate or conspire to violate constitutional and federal rights, the Civil Rights Laws, §§ 1979 and 1980(3), 42 U.S.C. §§ 1983 and 1985(3), abrogate the doctrine of official immunity. See The Doctrine of Official Immunity Under the Civil Rights Acts, 68 Harv.L.Rev. 1229 (1955).
The district court also dismissed the complaint as against defendant Lewis on the ground that Lewis is not a state officer, and, therefore, could not have acted under color of state law, a requisite allegation under § 1979. However, the complaint also purports to state a claim of violation of § 1980(3), 42 U.S.C. § 1985(3), for which Lewis, even though he is not a state officer, may be held liable if he conspired to deprive the plaintiff of the equal protection of the laws. Spampinato v. M. Breger & Co., 270 F.2d 46, 49 (2d Cir. 1959), cert. ...