Opinion
October 15, 1987
Appeal from the Supreme Court, St. Lawrence County, Edmund L. Shea, J.
Arthur F. Grisham for appellant.
Leonard, Mellon Gebo (A. Michael Gebo of counsel), for respondent.
Following a classroom evaluation conducted by a consultant in the employ of defendant Knox Memorial Central School District, plaintiff, a teacher in the district, was advised that he must visit a dentist "to improve the condition and appearance" of his teeth and visit a physician "to identify a health plan for an appropriate weight loss program and to develop adequate body tone". Plaintiff objected to this directive and instituted a grievance pursuant to the relevant collective bargaining agreement. Defendant James D. Constantine (hereinafter defendant), as superintendent of the school district, denied the grievance and instructed plaintiff to comply with the directive. Plaintiff's appeal to the school district's Board of Education under the grievance procedure was held in abeyance when plaintiff instituted a proceeding with the Commissioner of Education. While this proceeding was pending, defendants took no steps to compel plaintiff's compliance with the directive, except that he was required to undergo a physical examination. The Commissioner subsequently rendered his decision which concluded that defendants lacked the authority to compel plaintiff to comply with the directive, although they could compel him to undergo a physical examination. Plaintiff thereafter commenced this action, alleging that defendants had violated his constitutional rights and committed a prima facie tort. Upon a motion for summary judgment by defendant, Supreme Court dismissed all causes of action against him except for the cause of action for violation of plaintiff's rights under 42 U.S.C. § 1983. Defendant appeals.
Knox Memorial Central School District is no longer a party in this action as summary judgment was granted dismissing all causes of action against it.
In view of the procedural rights afforded to plaintiff, which he successfully pursued, he has no colorable claim of a denial of procedural due process and, therefore, if he is to succeed in his claim founded upon the US Constitution 14th Amendment, it must be on the basis of either "substantive" due process or equal protection (see, Harrah Ind. School Dist. v Martin, 440 U.S. 194, 197-198). To state a claim under 42 U.S.C. § 1983, plaintiff must allege that defendant acted under color of State law and that defendant deprived plaintiff of a right, privilege or immunity secured by the US Constitution or laws of the United States (see, District of Columbia v Carter, 409 U.S. 418, 423-425). We find plaintiff's complaint deficient as to the latter element. Assuming plaintiff has some sort of "liberty" interest within the US Constitution 14th Amendment in the matter of his personal appearance (see, Kelley v Johnson, 425 U.S. 238, 244), the allegations of his complaint fail to establish that defendant's conduct infringed upon such a protected interest. Although defendant allegedly directed plaintiff to take certain action concerning his personal appearance, defendant took no steps to compel plaintiff's compliance with the directive while plaintiff pursued his administrative remedies and the directive was effectively negated by the Commissioner. At most, plaintiff's allegations establish a threatened infringement of a protected interest, which we find insufficient to state a cause of action under 42 U.S.C. § 1983 (see, Macko v Byron, 760 F.2d 95; Lamar v Steele, 698 F.2d 1286, cert denied 464 U.S. 821).
Plaintiff was required to undergo a physical examination, but such a requirement is authorized by statute (Education Law § 913), and plaintiff does not base his 42 U.S.C. § 1983 claim on this requirement.
As to the equal protection aspect of plaintiff's claim, the complaint alleges discrimination as a conclusion, but does not allege that others similarly situated were accorded different treatment. In any event, there is no allegation of invidious discrimination (see, Giovannetti v Dormitory Auth., 115 A.D.2d 851, 853-854, affd 69 N.Y.2d 621).
Since the allegations of plaintiff's complaint fail to state a cause of action under 42 U.S.C. § 1983, defendant's motion for summary judgment should have been granted in its entirety.
WEISS, MIKOLL, YESAWICH, JR., and HARVEY, JJ., concur.
Order modified, on the law, without costs, by deleting therefrom the phrase "except for the cause of action for violation of plaintiff's constitutional rights pursuant to 42 U.S.C. § 1983" in the decretal paragraph, and, as so modified, affirmed.