Appeal from dismissal of a 42 U.S.C. § 1983 action by the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, holding inter alia that appellees had not acted under color of state law, thus depriving the court of subject matter jurisdiction. Affirmed.
Before Feinberg, Mansfield and Oakes, Circuit Judges.
This appeal requires us to determine whether conduct of a fundamentally private institution challenged on constitutional grounds constitutes "state action", one of the more slippery and troublesome areas of civil rights litigation. Appellant brought suit under 42 U.S.C. § 1983*fn1 and its jurisdictional counterpart, 28 U.S.C. § 1343, alleging that his discharge by the Legal Aid Society of Suffolk County, New York (the Society), violated the First, Sixth and Fourteenth Amendments. He sought a declaratory judgment, reinstatement and back pay. The United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, dismissed the complaint*fn2 after a bench trial,*fn3 holding that appellees had not acted under color of state law.*fn4 Graseck v. Mauceri, No. 74-C-1157 (E.D.N.Y., dated Oct. 28, 1977). Since we agree that the Society's discharge of appellant did not constitute state action,*fn5 we affirm.
Arthur Graseck began working for Legal Aid as a staff attorney on July 12, 1971, and was assigned to the District Court Bureau of the Criminal Division in Hauppauge, Long Island. Following a number of incidents detailed below, he was discharged by his supervisor, John Middlemiss,*fn6 on October 13, 1972, after he refused to resign.*fn7 On November 15, the Personnel Committee of the Society held a hearing to review appellant's termination,*fn8 particularly appellant's charge that judicial pressure provoked the decision. The committee upheld the dismissal,*fn9 as did the Society's board of directors on January 24, 1973.*fn10
The district court found that appellant was discharged due to his inability to work with colleagues and to follow established rules, his repeated exercise of poor judgment, and his continual absence from assigned areas. In other words, Graseck was asked to resign because his conduct over the course of the year disrupted the efficient operation of the Society. These were substantially the reasons proffered by Middlemiss and Costello.*fn11 The events which culminated in the dismissal must be explored at some length in order fully to appreciate Chief Judge Mishler's conclusion that the discharge, far from being a reaction to judicial pressure, resulted from the independent managerial decision of the Society.
According to the district court, Graseck's inability to work with other staff attorneys stemmed from his repeated interference with their clients. For example, a heated argument between appellant and a Ms. Mottenburg ensued after he took her client's file without informing her. When the case was called, no one answered and a bench warrant was issued for the client's arrest. Similarly, on at least three other occasions, without consulting assigned counsel, he induced their clients either not to plead guilty after a contrary decision had been made or to withdraw their pleas. This conduct, however much it may have aided the individual client, obviously created tension and friction between appellant and his co-workers.
The district court referred to three incidents to support its finding that "plaintiff's overwhelming desire to protect and defend his assigned clients often led him to exercise poor judgment and to deviate from established standards of conduct. This weakness particularly emerged in his relations with the judges of the District Court." Graseck v. Mauceri, supra, No. 74-C-1157, at 8. Two of the incidents, involving confrontations with state judges, form the basis of appellant's assertion that his dismissal directly resulted from the Society's inability to withstand the pressure imposed by these judges, and hence was "state action." The first occurred in February, 1972. After a presiding judge in a criminal trial denied appellant's request for production of certain police records, Judge Mauceri, the administrative judge of the district court, denied a subpoena duces tecum. Appellant then unsuccessfully presented the subpoena to a third judge, without disclosing the previous denials. Thereafter Graseck, again without revealing the previous denials, asked another staff attorney to submit the subpoena to a fourth judge, who signed the subpoena. Upon discovering what he considered to be improper conduct, Judge Mauceri suggested to Thomas Boyle, the attorney-in-charge of the District Court Bureau at that time, that Grasek be transferred from the Bureau. Boyle consulted with Middlemiss, and they agreed that a transfer "would constitute a submission by the Society to the authority of the court in a matter which solely concerned the Society." Id. at 9-10. Accordingly, they did not succumb to the judge's suggestion. Shortly thereafter, Judge Mauceri explained in a transcribed meeting with Boyle and appellant:
As far as your practice, I don't want you to limit yourself or your ability to defend the clients the way you see fit. I don't intend to do that but you have to do it within the purview of the rules and regulations of ethics. Every lawyer is bound by it, not only you but everyone, whether it be a private attorney or one working for the State as you are.
The judge warned appellant that he would refer the matter to the Character Committee of the Bar Association if Graseck engaged in similar conduct in the future. He ended the meeting on an optimistic note, however, stating: "I hope this is the end of it."
The second run-in with the judiciary occurred in late September, 1972, when appellant moved to dismiss a misdemeanor case for failure to prosecute. In the affirmation accompanying the motion, he accused Judge Green of being an agent of the district attorney, endeavoring to accommodate the People's desires at the cost of the defendant's constitutional and statutory rights. When the judge learned of the charges he requested a conference with appellant and Costello.*fn12 There is conflicting testimony as to the message Judge Green conveyed at the meeting. According to appellant, the judge banned him from further appearances in his courtroom. Judge Green recalled having instructed appellant to ask for the former's disqualification in any future case in which appellant feared bias. That Graseck did appear before the judge subsequent to the conference was supported by Judge Green's testimony and documentary evidence. Judge Green also testified that he never intended to prompt Graseck's dismissal by requesting the conference. The district court accepted Judge Green's version of the discussion. The evidence supports this finding.
The third episode which, according to the district court, revealed appellant's poor judgment and was a factor underlying Middlemiss's decision to seek Graseck's dismissal, involved Graseck's attempt to bring an Article 78 proceeding against a trial judge. His purpose was to compel the judge to indicate in the records that a trial had been adjourned because of the prosecutor's lack of readiness rather than court congestion. After Graseck filed the papers at the Supreme Court in Riverhead, and an official there informed Middlemiss of Graseck's action, Middlemiss ordered appellant to stop pursuit of the action and to return to the district court. Evidently, Middlemiss was irritated by Graseck's recurring crusades for his clients which often precluded his availability for more routine matters.
Chief Judge Mishler found three additional incidents revelatory of appellant's inability to follow established rules. The most critical, for purposes of deciding the state action issue, involved a second confrontation with Judge Mauceri. On October 12, 1972, appellant left a ball point pen with a client during a visit in the holding pen. Upon discovery, a guard prohibited appellant from entering the holding pen and informed Judge Mauceri of the security considerations involved. Whether the security personnel had previously given instructions never to leave such instruments with detainees because of their potential use as weapons is in dispute. Judge Mauceri issued an order barring Graseck from entering the holding pen, telephoned Middlemiss to apprise him of the order and then sent Middlemiss written confirmation of his decision.*fn13 What was said during the telephone conversation is also disputed. Boyle testified*fn14 that Middlemiss told him that Mauceri had stated, "You have got to get this guy out of my court." Trial Transcript at 1-70. Middlemiss and Mauceri denied that any such statement was made. Judge Mauceri also denied having intended to pressure the Society into dismissing appellant or even having contemplated the possibility of dismissal.*fn15
Judge Mauceri was not the only person who objected to appellant's practices. Appellant was prohibited by an assistant district attorney from entering the district attorney's office without accompaniment after Graseck was discovered one day rummaging through the office's files after 5:00 p. m. And Middlemiss revealed that appellant had loaned to ...