Spencer v Casavilla Appendix

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Topic
- Criminal Justice
Notable Person
- Julius Chambers
Organization
- NAACP Legal and Educational Defense Fund, Inc.
Collection
- Brief Collection
Taxonomy
Identifier
- 884857e6-c49a-ee11-be37-00224827e97b

Cite this item

Brief Collection, LDF Court Filings. Spencer v Casavilla Appendix, 1989. 884857e6-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1ca6808c-84ce-424c-a950-b3da639aa422/spencer-v-casavilla-appendix. Accessed May 18, 2025.

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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

MRS. ERNESTINE SPENCER,
individually and as the mother of

Samuel Benjamin Spencer, III, deceased,
and as Administratrix of the estate of

Samuel Benjamin Spencer, III,
MR. SAMUEL B. SPENCER, JR.,

father of Samuel Benjamin Spencer, III, deceased.
Plaintiffs-Appellants,

vs.
FRANK CASAVILLA,
FRANK D'ANTONIO,
COSMO MURIALE,
DOUGLAS MACKEY,
JOHN DOES,

Defendants-Appellees.
On Appeal from the United States District Court

for the Southern District of New York

APPENDIX

JAMES I. MEYERSON
396 Broadway
Suite 601
New York, New York 10013
(212) 226-3310

JULIUS LeVONNE CHAMBERS
CHARLES STEPHEN RALSTON
CORNELIA T.L. PILLARD
99 Hudson Street
Suite 1600
New York, New York 10013
(212) 219-1900

Attorneys for Plaintiffs-Appellants

TABLE OF CONTENTS OF APPENDIX

PAGE

Docket Entries as of 5-18-87 ....................... 1
Complaint, 5-18-87 ............. ................ 4
Letter from Gottlieb to Meyerson (re: not
representing Mackey in civil proceedings), 7-8-87 . 21
Answer, 7-13-87 22
Letter from Gottlieb to Meyerson (re: not
representing Mackay in Civil Proceedings), 8-26-87. 27
Letter from Sercarz to Meyerson (re: not retained
to represent Muriale), 9-8-87 28
Order (placing case on Suspense Calender), 9-21-87. 29
Letter from Meyerson to Justice Juviler (attachment
to 3-11-88 motion for reinstatement), 2-16-88 . . 30
Letter from Saunders, ADA., to Justice Juviler
(attachment to 3-11-88 motion for
reinstatement), 2-22-88 33
Notice of Motion (to reinstate the matter
to the active calender, with affidavit), 7-5-88. . 36
Memorandum Opinion and Order (restoring action
to the active calender), 11-4-88 ................ 42
Notice of Entry of Opinion and Order (served by
by Meyerson on defendants), 11-7-88 ............. 45
Letter from Mackey to Judge Haight (requesting
extension to secure counsel), 11-9-88 ............. 51
Letter from Muriale to Judge Haight (requesting
a court-appointed attorney), 11-18-88 ............. 52
Order (granting extension to defendant Mackey
with attached Memorandum Opinion and
order 11-4-88) , 11-23-88 53
Letter from Daddiego to Judge Haight (answering
complaint on behalf of defendant Douglas
Mackey), 1-13-89 58

17. Letter from Muriale to Meyerson (denying racial
claims) 2-22-89 62

18. Order (requesting Memorandum of Law in
support of the contention that court is seized
of federal subject matter jurisdiction), 4-6-89 . . 63

19. Order Directing Ellis to remain attorney for
D'Antonio), 4 - 6 - 8 9 .......... ...................... 65

20. Affirmation in Support of Notice of Motion for an
Order to be Relieved of Representation of the
Plaintiffs, Individually and Collectively, 5-2-89 . 67

21. Letter from Ernestine Spencer to Judge Haight
(requesting that Meyerson remain counsel
for Plaintiffs), 7-20-89....................... 74

22. Memorandum Opinion and Order (denying Motion by
Plaintiffs Counsel to be Relieved) 7-27-89. . . . 77

23. Memorandum Opinion and Order, (dismissing Federal
Claims with Prejudice and the Pendent State Claims
without Prejudice), 7-27-89.................... 81

24. Judgment, 7-31-89 .................................... 93
25. Notice of Appeal, 8-13-89 94

- - :v-7-: ?v“0';>.•; y

' V v ,■ . . . ,

»■ ■■ r°- , “ ’ A - . "' * •
i ■ • . . . • j

, PLAINTIFFS
SPEKCSP., MRS. ERNESTINE, I n d i v i d u a ' i y

| as th e m o th e r o f Samuel B e n ja m in |
S p e n c e r , I I I , d e c e a s e d , and as

i i i s t r a t f * x o f th e o s t r . to o f
S rn iiie l B e n ja m in Soer.-te .*, H I
SPENCER, MR. SAMUEL B . , J R . , f a t h e r
o f Samuel B e n ja m in S p e n c e r , I I I ,
decea sed

DEFENDANTS
C.’.SAV ILL A . ERA NS
0 ' ANTON i 0. rR .'.S il
MUR I A LE . COSMO
MACKEY, r3USLAS
•:•?£$, : o :;n

CAUSE

(CITE THE U.S. CIVIL STATUTE UNOER WHICH THE CASE
SC

P u rs , to 42 use f o r r a c i a i , y - ,« o t i va
v io e;:".e a g a in s t

ATTORNEYS

f o r th y p l a i n t i f f s :
JAMES I . MEYER SO,-I
T-': i 0 r oad~ ay - S te . #5 0 !
Ne.; Y o r k , N . Y . J .00 '3
( 2 ' 2 ) 2 2 5 -3 3 !0 /5 5 4 5

ROBERT L. ELLIS
S00 T h ird Ave. 20th f l .
H.Y.C. 10022-4775
593-3440

□ CHECK
HERE

IF CASE WAS
F!L ED IN
FORMA

I'A UP ti l IS
T f

F I L I N G F E E S P A ID

DATE RCCEIPT NUMBER L U NUMBEH

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4- 28-88

^ O e c . a ^ d - d I S5( I ' Suu*',0 , ' s r' H e t1 c e P ^ s . to 28 USC S 3 S ( c ) . J u ry YrDemanded .

F ile d ANSWER to r Frank D‘ Antonio
MM

S ? : :°H de^ H th 3 t the C le r* p l ic s th is a c tio n the Suspense Calendar o f
ca lendar by l e « ^ e" HaP? S T “ PP * ^ re s t0 ra t1 0 n o f the a c t i ° " to the a c tiv e a * cmc AL

PBI-TSIAl COTFTKSNGE HELD L I ? / a (jJ ^ y

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of su,,,w '
^^F ld . AFFIRMATION in O ppos ition to P r t f 's M otion to Restore a c tio n to the CaiJndi

A S 8 • » ? « - » , * r ~ ,
J S S

and p re v a il in g law. So Ordered H a ig h t,J croc ta ,e l< iva n t ra c ts

F= V ,,A ’. V ' l , " t0V-“ . ? , W T ,° " ,0 " « * • ' « ■ ; » . « « • . . . . . a c t iv e
KB.

F lo'. P l t f 's NOTICE OF ENTRY OF OPINION £ ORDER dtd U -A -90 . K3.

o ^ V ^ ' n i S . * 5CT,CE °f s““ “ * «-*'« ^ „,

to 2 S S 'e ? u ; a ' . J V ' * » <• » > « a c tio .,

^ «s=“j £
r i c . ORudl th a t d e f t nackey's reques t fo r ex tension o f ti;.,e to f i l e responsive
p leaa ing is ^ ra n ted . d e f t Mackey is d ire c te d to answer coi..p'lt by l - U i -09
ilAIGliT, J . CMC ’ c t

j u r V s d l c S i s d l ? tonSP-7-89r1a1 Conference was held < -5 -39 , P l t f ' s b r ie f on;<a.
F id . ORDER, th a t the p l t f is d ire c te d tn f r i , >

supp o f the co n ten tio n th a t th is Court seiaed f i d e r a ^ s u b i e - t ^ l ’ ° f ‘.au
by 5-1 -89 . D etts may f i l e & serve o p p o s to g j^ J s by 5 - I2 -0 * iia* Ŝ c t i on

v -W - . •

' ' ‘ ^ ~ .................. V :

D A TE NR

4 - 6-89

5 - 2-89

6 - 19-89

7 - 28-89

7-28-89

7 - 31-89

8 - 1-89

8-16-89

8-17-89

P R O C E E D IN G S CSH

F id . ORDER, th a t Mr. E l l is s h a ll remain the a t ty fo r d e f t O 'Antonio 4
th e re fo re must take whatever steps a p p ro p ria te in the defense o f th is a c tio n , or
make a m otion to be re lie v e d . H a igh t,J cmc KB.

F id . p l t f s NOTICE OF MOTION to be re lie v e d as counsel f o r p l t f s . KB.

F id p l t f ' s MEMO OF LAW in supp o f the P l t f s s u b je c t m a tte r J u r is d ic t io n .
KB.

F id . MEMORANDUM OPINION # 64677 Ordered th a t n l t f c .
as p l t f s counsel is denied. H a igh t.J cmc th a t p l t f 5 to be re lie v e d

to dism t h e ' f e d e r a l S lim ' t h i r s t 64678 ° f the 1« d ire c t . ,
causes o f a c tio n w /p re i and to Hism * s e c o n d ,th ird , fo u r th , seventh, 4 e ig h ti
H a igh t.J cmc P J d to dism the pendent s ta te law cla im s w/o p re j.

KB.

EOD^S-i-fjg8^"'7 ‘ Orc*ered th a t the complt is dism. Raymond F. Surghardt
KB.

JAMeV I*'MEYERSOn' APPealS f0rms * le t in re t0 appeal p" * « 'u r e s to ^

Fid. pltfs NOTICE OF APPEAL from the MEMO 4 OPINION dtd 7-27-89.
KB.

M ail copy to Robert L. E l l i s
900 T h ird Ave
NYC

e n t r ie s ^ to 't h e S f s K ® ° f App“ V Judge 4 copy w ith docket
KB.

JS J.J.C/i*r-
(Rev.0786)

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o .e .o m ,, or o\nmt *0 . M M ^ r r . a C l , . o ' ' ' l i V o ' V "
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B . c ' T n j K n r c ' r T v r r ~ T ----------------- 7j n 1 ii.
DEFENDANTS Ft<AJNK LAbAV I L L a , HlAm*. a------------
ANTONIO, COSMO MURIALE, DOUGLAS MACKEY,Tnuw nnirc

plaintiffs MRS 1 ERNESTINE SPENCER as
^ a d m i n i s t r a t r i x o f the e s t a t e o f Samuel m„xwl„XUi
^^Bsn j snii n S pencer, I I I , and as h is m other town nnpc ^ n d J SnMTT^ __qpfrNPm?’ ,TP . . farhor fJOHN DOES

t n i U N f Y t i r u u „ . u , „ n n n - L . _ ( _ T _ ‘J 1 1 ^ a ^ N ' r 1-

A T T O B N E V S ( IF K N O W N )

Ifenjamin Spencer, III, an
^ S A M I T ^ T ----------g p ^ N r n p ’ T P , . r . w , „ ^

T T O B N E V S | f l » M n a m e . A O O R E S S . A N D T E L E P h O N E n u m k r iGEORGE E. HAIRSTON/JONATHAN C WS8EE/
JAMES I. MEYERSON/396 Broadway-Suite #6)1
New York, New York 10013 '
(212) 226-3310_____________

CAUSE ° F A C T .O N , c „ . u . , e iv lL , TATUT. WH|CH J u . . . „ L|NC a m o w . , T t a ,TAT6M C NT o 7-------------

Action by the Plaintiffs for damages alleging racially motivace-tf
violence against the Plaintiff’s decedent by the Defendants ,̂ individually and collectively, in violation of rights guaranteed under the Civil Rights
Act.of.1866, 42 U.S.C. Sections 1981 and 1985; and various state claims.--■J u.. ■.dcgian IP 1 i-i'-nlr̂ d nimianf rn 28 U.S.C. Sections 13^1 and 1343 (3) and (4)

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INSTRUMENT

'50 BCCOVERT OF
OVERPAYMENT t
ENFORCEMENT OF
judgment

151 "COICABE ACT
RECOVERY OF
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( 1 350 "OTOH VEHICLE
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l i a b i l i t y

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I ) 510 HOT I OHS TO
VACATE
SENTENCE
2* USC 2255

I I 530 HABEAS COAPUS
I 1 5*0 "AHOArNJS t OTHER
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SECURITY ACT

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892 ECONOMIC

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(SEE REVERSE)

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/ “ l_'t><Wt'On tr, i , Judgment

______

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□ 1 U.5, P L A I N T I F F D 2 u .S . d e p e n d a n t

— --------■

BASIS OF JURISDICTION
B A t . Q U E S T I O N

Q T A P A B T V )
□ 4 Ol V E B S I T V

i f d i v e r s i t y , i n d i c a t e
CITIZENSHIP BELOW. ■
(28 USC 1332. 1441)

(PI ACC an [a ]
c i t i z e n s h i p o f p r i n c i p a l p a r t i e s ( for d i v e r s i t y cases o n l y )

in one 50* f o r P l a i n t i f f and one aox fo r Defendant)

PTF OEF PTF OEF PTF OFT
CITIZEN OF THIS STATE I U I H CITIZEN OR SUBJECT OF A

FOREIGN COUNTRY
( 13 ! 13 INCORPORATED and

OF BUSINESS in
PRINCIPAL PLACE
ANOTHER STATE

[ 15 ( JS

CITIZEN OF amOTH£R STATE I U I 12 INCORPORATED or PRINCIPAL PLACE
OF BUSINESS IN THIS STATE

I n I I* FOREIGN NATION l 14 [ 14

F L A I N T I F F ( S ) A O D R E S S (E S ) AND C O U N T f ( l E S ) ( C a le n d a r R u le U ( a ) )

Plaintiffs reside at 30 Prospect Street, yonkers,
COUNTY OF WESTCHESTER

New York 10701.

D E F E N D A N T ( S ) A D D R E S S ( E S ) AND C O U N T Y ( l E S ) ( C a l e n d a r R u le 4 ( A ) )

FRANK CASAVILLA is now confined at the Rikers Island Correectional "•
Facility. He otherwise resides at 1325 65th Street, Brooklyn, New
York/County of Kings.
Cosmo Muriale, 1304 67th Street/Brooklyn, New York/County of Kings.
Frank D 'Antonio, 1376 67th Street/Brooklyn, New York/County' of Kings.

Douglas Mackay/Brooklyn, New York/County of Kings

O E F E N O A N T (S ) AO D R ES S U N K N O W N

" E P B E S E N T A T I O N i s H E f l t l V M A O e T m A T . A T T H I S T I M E , I H A V E I C E N U N A B L E W I T H
a ESI O E N C E A D D A ES SE S O F T H E F O L L O W I N G D E F E N D A N T S :

S E A S O N A B L E D I L I G E N C E . T O A S C C A T A I N T).

Check one: THIS ACTION SHOULD 3E ASSIGNED TO: 0 WHITE P L A IN S / [Q ” FCUEY SQUARE
(DO NOT C he c k e i t h e r do* i f t h i s i s a PRISONER PETITION.) V J

AO 44 0J ,̂ * V* 5 /85 ) Sum m on* In a C ivil A c tion

^ L n i t e b ^ t s i r t c i Q J n u r t
SOUTHERN DISTRICT OF

NEW YORK

MRS. ERNESTINE SPENCER, individually SUMMONS IN A CIVIL ACTION as the mother of Samuel Benjamin Spencer,
III,deceased, and as Administratrix of
the estate of Samuel Benjamin SpencetTASE NUMBER:
III, MR. SAMUEL B. SPENCER, JR., father of
Samuel Benjamin Spencer, §ec*1

vs
FRANK CASAVILLA, FRANK D'ANTONIO, COSM'
MURIALE, DOUGLAS MACKEY, JOHN DOES,

DEFENDANTS

S 7 ON. 3 4 2 4

TO ’. (Nama and Addraas o! Dafandant)

FRANK CASAVILLA
FRANK D'ANTON10
COSMO MURIALE
DOUGLAS MACKEY
JOHN DOES

YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon

P L A IN T IF F ’S A T T O R N E Y (name and address)

JAMES I. MEYERSON
396 Broadway-Suite # 601
New York, New York 10013
(212) 226-3310

an answer to the complaint which is herewith served upon you, w ith in___2D_____________ days after service of
this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken
against you for the relief demanded in the complaint.

RAYM0HD F- BUHGHAEDT, CLSE2
MAY l 9 1987

D A T E

I t
BY DEPUTY CLERK

I 6

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

CIVIL NO.

MRS. ERNESTINE SPENCER, individually
ns Che mother of Samuel Benjamin
Spencer, III, deceased, and as Ad
ministratrix of the estate of Samuel
Benjamin Spencer, III, MR. SAMUEL
B. SPENCER, JR., father of Samuel COMPLAINT
Benjamin Spencer, III, deceased, JURY TRIAL

PLAINTIFFS

1. This is an action by the Plaintiffs over and against the
Defendant parties, individually and collectively, for the violation
of rights guaranteed to the Plaintiffs under the laws and Constitu
tions of the State of New York and of the United States.

2. More specifically, the Plaintiffs seek damages over and
against the Defendant parties, individually and collectively, for
the violation of the Plaintiff's rights as guaranteed under the
Civil Rights Act of 1866, 42 U.S.C. Sections 1981 ,1985 and 1986, and the
Thirteenth Amendment to the United States Constitution; and, in

vs
FRANK CASAVILLA, FRANK D'ANTONIO,
COSMO MURIALE, DOUGLAS MACKEY, JOHN
DOES ,

DEFENDANTS I. 2

I. INTRODUCTION

addition, under the laws of the State of New York relating to
assault, battery, intentional infliction of mental distress,
and other tort.

3. The litigation is grounded in the Defendants' conduct
and action in assualting the Plaintiff's decedent, Samuel Benjamin
Spencer, III, on May 28, 1986 resulting in serious injury and
damage to the Plaintiff's decedent and, ultimately, his wrongful and
illegal death on said date.

4. As a consequence of the conduct of the Defendant parties,
individually and collectively, the Plaintiffs, individually and
collectively, suffered injury and damages including, to the
Plaintiff's decedent, physical pain and suffering and mental anguish
and distress prior to his death and in the interim period between
the time of his beating by the Defendant parties, individually and
collectively, and the death of Plaintiff's decedent.

II. JURISDICTION

5. Jurisdiction of this Court is invoked pursuant to 28
U.S.C. Sections 1331 and 1343 (3) and (4) in conjunction with the
Civil Rights Act of 1866, 42 U.S.C. Sections 1981 ,1985, and 1986; and, ir
addition, in conjunction with the Thirteenth Amendment to the United
States Constitution.

6. The Plaintiffs request that the Court invoke pendent juris
diction over any and all claims arising under the laws and Constitution
of the State of New York.

•t
-2-

\ 8

7. This is an action seeking redress, int he form of damages,
over and against the Defendants, individually and collectively, for
the violation of the Plaintiffs constitutional and civil rights and
for the violation of rights otherwise guaranteed to the Plaintiffs
under the laws and Constitution of the State of New York.

7a. The value of the rights is in excess of the sum of ten
thousand dollars exclusive of interest and costs.

7b. To the extent that declaratory and injunctive relief may prove
to be necessary and appropriate, the Plaintiffs also invoke jurisdiction
in conjunction with the Declaratory Judgment Act, 28 U.S.C. Sections
2201 and 2202.

III. PARTIES

8. The Plaintiff ERNESTINE SPENCER is the mother of Samuel
Spencer, III, deceased; and, in addition, she is the administratrix
of the estate of Samuel Benjamin Spencer, III. Samuel Benjamin Spencer,
III was, prior to his death, twenty years of age and a Black American
citizen of the State of New York/County of Westchester/City of Yonkers.

9. SAMUEL B. SPENCER, JR. is the father of Samuel Benjmain
Spencer, III, deceased.

10. Both Ernestine Spencer and Samuel B. Spencer, Jr. are Black
American citizens and residents of the State of New York/County of
Westchester/City of Yonkers.

11. Defendants FRANK CASAVILLA, FRANK D'ANTONIO, COSMO MURIALE,
DOUGLAS MACKEY, and JOHN DOES are all white individuals who at the
time of the incident herein resided in the City of New York/County of
Kings/State of New York.

-3-

•i t 9

IV. ALLEGATIONS '

12. The Plaintiff's decedent, Samuel Benjamin Spencer, III,
was, prior to his death and remain in memory today, a Black
American citizen. At the time of his death he was twenty years
of age having just turned twenty years of age on May 4, 1986. The
Plaintiff's decedent was born on May 4, 1966.

13. The Plaintiff was, on or about the date of his death,
visiting with his sister who then lived in the Coney Island area of
the City of New York/County of Kings (Brooklyn)/State of New York.

14. The Plaintiff otherwise lived with his parents, Ernestine
and Samuel B. Spencer, Jr., in Yonkers, New York/Westchester County
at 30 Prospect Street.

15. Without any provocation or justification therefor, the Plaintiff
decedent, on May 28, 1986, was attacked, brutally and savagely
beaten and battered and otherwise assaulted in the vicinity of
Surf and Mermaid Avenues and 20th Street by the Defendant parties,
individually and collectively, who acted together and in concert
in the attack, assault, battery and beating.

16. It is believed that the Plaintiff's decedent was kicked,
punched, and, ultimately beaten with a.baseball bat and otherwise
stabbed with a knife.

17. It is believed that the Plaintiff's decedent was savagely
and brutally beatened, as described, by the Defendant parties, in
dividually and collectively, because he was Black and the Defendant
parties, as individuals, were hostile toward him because of his race
as a Black individual.

-4-
10

18. Ultimately, the Plaintiff's decedent died on
May 28, 1986 after being taken to Coney Island Hospital from
the scene of the brutal and savage assault, battery and beating
by the Defendant parties, individually and collectively.

19. The Plaintiff's decedent died at approximately 4:40
A.M. in the morning on May 28, 1986. He died while at Coney
Island Hospital.

20. The death nf the Plaintiff's decedent was directly and
proximately related to the savage beating and assault and battery
and attack, including the punching, kicking, and battering
with the baseball bat and the stabbing of the Plaintiff's decedent
by the Defendant parties, individually and collectively.

21. The Plaintiff's decedent was listed by the Medical
Examiner, it is believed, to be the victim of a homocide.

22. The Plaintiff's decedent was murdered by the conduct,
actions and acts of the Defendant parties, individually and
collectively.

23. It is believed that the Plaintiff's decedent was killed
by the Defendant parties, individually and collectively, because
the Plaintiff's decedent was a Black person and the white
Defendant parties, individually and collectively, had a disregard
for him as a h uman being, because of his race as a Black individual;
and, therefore, undertook, without any provocation or justification,
to assault and batter the Plaintiff's decedent and otherwise cause
his death some time shortly after the initial ssault and battery,
including the beating with a baseball bat and the stabbing of the
Plaintiff's decedent with a knife.

_ s 11

24. Prior to his death but subsequent to the savage
and brutal attack upon the Plaintiff's decedent by the
Defendant parties, individually and collectively, the Plaintiff's
decedent suffered much pain, physical, and mental, as a consequence
of the beating inflicted upon him including the stabbing and
the battering with the baseball bat by the Defendant parties.

25. There was no justification or provocation whatsoever
for the brutal acts and conduct of the Defendant parties, individual
ly and collectively; and it is believed that, but for the fact
that the Plaintiff's decedent was a Black person, the Defendants,
individually and collectively, would not have acted in the savage
and brutal manner and fashion, including the stabbing of the
Plaintiff's decedent and the battering of him with a baseball bat;
and they would not have killed the Plaintiff's decedent as they did.

26. The Plaintiffs, individually and collectively, suffered
much anguish, as mother and father of the decedent, as a consequence
of the brutal beating and, ultimately, the death of the decedent:
including the mmaner and fashion of his savage and brutal beating
and death and the reason for such as they believe the same, to wit:
the fact that Samuel Benjamin Spencer, III was a Black individual.

-6-

27. It is believed that the Defendants acted in concert
with each other when the savagely beat and otherwise brutalized
and killed the Plaintiff's decedent; and it is believed that
their conduct was conspiratorial in substance and nature with the
view and design that the act of each individual, taken alone,
would, when inter-faced with the acts of other individuals taken
alone, further a transaction which transaction was designed to
assault, batter and beat the Plaintiff's decedent and to otherwise
cause his death; and to do those things because the Plaintiff's
decedent was a Black individual.

28. The Plaintiffs have no other adequate remedy at law but
the within litigation in order to secure full justice for the
wrongful acts and conduct of the Defendant parties, individually and
collectively.

FIRST CAUSE OF ACTION

29. The Plaintiffs reiterate and otherwise incorporate by
reference allegations heretofore made and asserted and numbered
one through twenty eight inclusive.

30. The conduct of the Defendant parties, individually and
collectively, deprived the Plaintiff's decedent of rights otherwise
guaranteed to him by the Civil Rights Act of 1866, 42 U.S.C.
Section 1981.

31. The conduct inflicted upon the Plaintiff's decedent
marks of the condition of the institution of slavery in violation
°f rights guaranteed to him under the Thirteenth Amendment to the

-7-

_.. Jilsl 1. ’io-JELJi vA.

United States Constitution.

32. The Plaintiff's decedent suffered much injury and
damage, physical and mental, prior to his death, as a result
of the violation of his rights as described.

SECOND CAUSE OF ACTION

33. The Plaintiffs reiterate and otherwise incorporate by
reference allegations heretofore made and asserted and numbered
one through thirty two inclusive.

34. The conduct of the Defendant parties, individually and
collectively, in causing the death of the Plaintiff's decedent
deprived the Plaintiff's decedent of rights guaranteed to him under
the Civil Rights Act of 1866, 42 U.S.C. Section 1981, and the
Thirteenth Amendment to the United States Constitution, in as much
as those acts causing his death were inflicted upon the Plaintiff’s
decedent because of his race as a Black individual and the
Defendants' individualy and collective hostility toward the Plaintiff's
decedent because of his race.

-8-

35. The PlainCiff's decedent suffered injury and damage
as a consequence of the actions by the Defendant parties , indi
vidually and collectively, which caused his death.

THIRD CAUSE OF ACTION

36. The Plaintiffs reiterate and otherwise incorporate by
reference allegations heretofore made and asserted and numbered
one through thirty five inclusive.

37. The conduct of the Defendant parties, individually and
collectively, in assaulting, beating and battering the Plaintiff's
decedent deprived the Plaintiff's decedent of rights guaranteed
to him under the Civil Rights Act of 1866, 42 U.S.C. Section 1981, and
the Thirteenth Amendment to the United States Constitution, in as
much as those acts causing his death were inflicted upon the Plain-
Plaintiff's decedent because of his race as a Black individual
and the Defendants', individually and collectively, hostility toward
the Plaintiff's decedent because of his race.

38. The Plaintiff's decedent suffered injury and damage as
a consequence of the actions taken by the Derendant parties, individual
ly and collectively, which battered, assaulted and beat him
including the stabbing of the Plaitiff's decedent, the battering
him witha baseball back, and the punching and kicking of the
Plaintiff's decedent.

-9-

FOURTH CAUSE OF ACTION

39. The Plaintiffs reiterate and otherwise incorporate by
reference allegations heretofore made and asserted and numbered
one through thirty eight.

40. The Defendant parties acted in concert with each other
and in further of a conspiracy to violate the rights of the Plaintiff s
decedent as rights are guaranteed and protected under the Civil
Rights Acts of 1866, 42 U.S.C. Sections 1981, 1985,1986 and the Thirteent
Amendment to the United States Constitution.

41. It is believed and alleged that the concert and conspiratorial
conduct of the Defendant parties was taken because the Plaintiff's
decedent was a Black man and because of the Defendants individual and
collective hostility toward and against the Plaintiff s decedent
because of his race as a Black individual.

42. The Plaintiff's decedent suffered injuries and damages
as a consequence of the conduct described in this regard.

FIFTH CAUSE OF ACTION

43. The Plaintifs reiterate and otherwise incorporate by
reference allegations heretofore made and asserted and numbered
one through forty two.

44. The conduct of the Defendant parties, individually and
collectively, in assaulting, battering, and otherwise beating the
Plaintiff's decedent violated the rights oi the Plaintiff s
decedent under the laws and C o n s t i t u t i o n o f the State o f New York.

- 1 0 -

45. The Plaintiff's decedent suffered pain and injury
and damage, prior to his death, as a consequence of the wrongful
and illegal and brutal and savage beating, assault and battery as
described.

SIXTH CAUSE OF ACTION

46. The Plaintiffs reiterate and otherwise incorporate by
reference allegations heretofore made and asserted and numbered
one through forty four.

47. The Defendant parties acted wrongfully, illegally and
brutally and savagely when they beat the Plaintiff-'s decedent,
battered him and otherwise stabed him with a knife causing his
death on May 28, 1986.

48. The death of the Plaintiff's decedent was wrongful
and the Plaintiff's decedent is entitled to recovery of damages for
said wrongful and illegal death over and against the Defendant
parties individually and collectively.

SEVENTH CAUSE OF ACTION
49. The Plaintiffs reiterate and otherwise incorporate by

reference allegations heretofore made and asserted and numbered
as one through forty eight.

50. Plaintiffs Ernestine Spencer and Samuel B. Spencer, Jr.,
as mother and father of the Plaintiff's decedent, suffered the loss
of association with the Plaintiff's decedent; and, otherwise, lost
the exchange of love as between parents and their still young son.

- 1 1 -

51. The Plaintiffs Ernestine and Samuel Spencer suffered
much mental anguish both because of the beating and death of
their son and the loss of the association and inter-relationship
which they had with their son prior to,his death and because of the
brutal and savage manner and fashion of the assault, battering
and knifing and death of their son; and, in addition and not
insignificantly, because of the race based nature of the actions
taken by the Defendant parties, individually and collectively
and in concert with each other. The conduct of the Defendant parties
and the consequences attendant thereto violated the Plaintiffs
rights under the Civil Rights Act of 1866, 42 U.S.C. Sections
1981 ,1985,1986 and the Thirteenth Amendment to the United States
Constitution as well as under the laws and Constitution of the State

of New York.

52. The Plaintiffs Ernestine Spencer and Samuel B. Spencer, Jr.,
as parents of the deceased, suffered damages and injury for which
relief is both appropriate and necessary to secure the ends of jus
tice.

EIGHTH CAUSE OF ACTION

53. The Plaintiffs reiterate and otherwise incorporate by •
reference allegations heretofore made and asserted and numbered
as one through fifty two.

54. The Defendant parties acted collectively in a conspiratorial
manner and fashion to violate the civil rights of the Plaintiff's
decedent and to otherwise stamp the decedent and his parents with

- 1 2 -

V -

marks of the institution of slavery, un willing to die, because
the Defendants, as white individuals, possessed a hostility
toward the decedent because of the decedent's race as a Black in
dividual.

55. The actions of the Defendant parties, taken in concert
with and by each other for the furtherance of the common aim, violated
the rights guaranteed to the Plaintiffs under the Civil Rights Act
of 1866, 42 U.S.C. Sections 1981, 1985, 1986 and the Thirteenth Amendment
to the United States Constitution.

56. The Plaintiffs were injured and damaged as a consequence
of the conspiratorial actions and conduct of the Defendant parties;
and, therefore, they are entitled to recover damages over and
against the Defendant parties, individually and collectively, as redress
for the violation of their rights and the damage deriving therefrom.

WHEREFORE and in light of the foregoing, it is respectully re
quested that this Court assume jurisdiction and thereafter:

a. Invoke pendent jurisdiction over the inter-related
state claims which have a common nucleus of coopera
tive facts and arise from the same transactions and
enterprise giving rise to the federally based causes
of actions.

b. Convene a jury.
c. Award the Plaintiff's decedent the sum of three million

dollars ($3,000,000.00) compensatory damages and the
sum of three million dollars punitive damages, over
and against the Defendant parties, individually and
collectively.

-13-

d. Award the Plaintiffs Ernestine Spencer
and Samuel B. Spencer, Jr., each, the
sum of two million dollars ($2,000,000.00)
compensatory damages and each the sum of
two million dollars ($2,000,000.00) punitive
damages.

e. Award such other and further relief as the
Court deems appropriate and just.

f. Award reasonable attorneys fees and costs.

DATED: New York, New York
May 18, 1987

JONATHAN C. MOORE
JAMES I. MEYERSON
396 Broadway-Suite # 601
New York, New York 10013
(212) 226-3310/6646

ATTORNEYS FOR PLAINTIFFS

BY:

-14-

S U S S M A N , G O T T L IE B &. N E E D L E M A N
A T T O R N E Y S A T L A W

ROBERT C GOTTLIEB
RONALD R. SUSSMAN
MARK S. NEEDLEMAN

353 VETERANS MEMORIAL HIGHWAY
COMMACK, NEW YORK 11725

28 JONES STREET

E A S T SETAUKET, N E W YO R K 11733

B Y A PPO IN TM E N T O N LY

TELEPHONE
5 1 6 - 5 4 3 - 8 3 0 0

July 8, 1987

James I. Meyerson, Esquire
396 Broadway
Suite 601
New York, New York 10013

Re: Spencer, et al v. Mackey, et al
Dear Mr. Meyerson:

I acknowledge receipt of your June 29, 1987 letter with
the accompanying order for an initial conference. Please
understand that this law firm represents Mr. Mackey only in the
criminal matter and will not be representing him in the civil
rights litigation in Federal Court.

Therefore, we will not appear on July 24, 1987 for the
pre-trial conference. Thank you for your cooperation.

Very truly yours,
SUSSMAN, GOTTLIEB & NEEDLEMAN

RCG:vj

■

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------- - - - - - - X

MRS. ERNESTINE SPENCER, individually :
as the mother of Samuel Benjamin
Spencer, III, deceased, and as Admin- :
istratrix of the estate of Samuel
Benjamin Spencer, III, MR. SAMUEL B. :
SPENCER, JR., father of Samuel
Benjamin Spencer, III, deceased, :

Plaintiffs, :
- against -

FRANK CASAVILLA, FRANK D'ANTONIO,
COSMO MURIALE, DOUGLAS MACKEY, JOHN
DOES,

87 CIV. 3424
(Judge Haight)

ANSWER

Defendants.
X

Defendant FRANK D'ANTONIO, by his attorney, ROBERT
L. ELLIS, for his answers to the complaint, sets forth as
follows:

1. Admits the allegations of Paragraphs "1" and
"2" which allege in substance that plaintiff's action is based
on the Federal Civil Rights Laws.

2. Denies the allegations of Paragraphs "3", "4" and
" 7 " .

3. Admits the allegations of Paragraphs "5" and "6".

4. Denies that he has knowledge or information
sufficient to for'm a belief as to the allegations of Paragraphs

8" , 9" and "10".

5. Admits the allegations of Paragraph. "11".

6. Denies that he has knowledge or information suf
ficient to form a belief as to the allegations of Paragraphs
"12", "13" and "14" thereof.

7. Denies the allegations of Paragraphs "15", "16",
"17" and "18" thereof.

8. Denies that he has knowledge or information suf
ficient to form a belief with respect to the allegations of
Paragraph "19" and "20" thereof.

9. Denies the allegations of Paragraphs "21", "22",
"23", "24", "25", "26", "27" and "28" thereof.

ANSWERING THE FIRST CAUST OF ACTION

10. Answering Paragraph "29", defendant incorporates
by reference each admission and denial heretofore set forth wit!
respect to Paragraphs "1" through "28" of the complaint.

11. Denies each and every allegation set forth in
Paragraphs "30", "31" and "32" thereof.

ANSWERING THE SECOND CAUSE OF ACTION

12. Answering Paragraph "33", defendant incorporates
by reference each admission and denial heretofore set forth with

2 23

respect to Paragraphs "1" through "32" of the complaint.

13. Denies each and every allegation set forth in
Paragraphs "34" and "35" thereof.

ANSWERING THE THIRD CAUSE OF ACTION

14. Answering Paragraph "36", defendant incorporates
by reference each admission and denial heretofore set forth
with respect to Paragraphs "1" through "35" of the complaint.

15. Denies each and every allegation set forth in
Paragraphs "37" and "38" thereof.

ANSWERING THE FOURTH CAUSE OF ACTION

16. Answering Paragraph "39", defendant incorporates
by reference each admission and denial heretofore set forth
with respect to Paragraphs "1" through "38" of the complaint.

17. Denies each and every allegation set forth in
Paragraphs "40", "41" and "42" thereof.

ANSWERING THE FIFTH CAUSE OF ACTION

18. Answering Paragraph "43", defendant incorporates
by reference each admission and denial heretofore set forth
with respect to Paragraph "44" thereof.

19. Denies each and every allegation in Paragraph

45" thereof.

20. Answering Paragraph "46", defendant incorporates
by reference each admission and denial heretofore set forth
with respect to Paragraphs "1" through "44" of the complaint.

21. Denies each and every allegation of Paragraphs
"47" and "48" thereof.

ANSWERING THE SEVENTH CAUSE OF ACTION

22. Answering Paragraph "49", defendant incorporates
by reference each admission and denial heretofore set forth
with respect to Paragraphs "1" through "48" of the complaint.

23. Denies each and every allegation set forth in
Paragraphs "50", "51" and "52" thereof.

ANSWERING THE EIGHTH CAUSE OF ACTION

24. Answering Paragraph "53", defendant incorporates
by reference each admission and denial heretofore set forth with
respect to Paragraphs "1" through "52" of the complaint.

25. Denies each and every allegation set forth in
Paragraphs "54", "55" and "56" thereof.

FIRST AFFIRMATIVE DEFENSE

26. Venue is improperly placed in the Southern

4
25

District of New York.

SECOND AFFIRMATIVE DEFENSE

27. The complaint fails to state a claim for which
damages can be awarded.

WHEREFORE, defendant FRANK D'ANTONIO demands that the
complaint be dismissed and that he be awarded the costs and
disbursements of this action and such other relief as the
Court deems appropriate.

July 13, 1987

Robert L. Ellis
Attorney for Defendant,

FRANK D'ANTONIO
900 Third Avenue - 20th Floor
New York, New York 10022-4775
(212) 593-3440

TO: JAMES I. MEYERSON,
Attorney for Plaintiff
396 Broadway - Suite 601
New York, New York 10013

5
26

S U S S M A N . G O T T L IE B & N E E D L E M A N

A T T O R N E Y S A T L A W

ROBERT C GOTTLIEB
RONALD R. SUSSMAN
MARK S. NEEDLEMAN

353 VETERANS M EMORIAL HIGHWAY
COMMACK, NEW YORK 11725

28 JO NES STREET

E A S T SETAUKET, N E W Y O R K 11733

B Y A PPO IN TM E N T O N LY

TELEPH O NE

5 1 6 - 5 4 3 - 8 3 0 0

August 26, 1987

James I. Meyerson, Esquire
396 Broadway
Suite 601
New York, New York 10013

Re: Spencer v. D1 Antonio/Casavilla/Mackey/Miraele
Dear Mr. Meyerson:

I am in receipt of your latest letter dated August 17,
1987. Again, please be advised that I do not represent Mr.
Mackey in any action or proceeding other then the Criminal Court
Indictment pending in Kings County. I have discussed this
matter with Mr. Mackey and it would be inappropriate for me to
advise you of the contents of any of those conversations. It
should suffice to indicate simply that I do not represent him.

Very truly yours,
SUSSMAN, GOTTLIEB & NEEDLEMAN

y'O 1 /
% / l_Robert C. Gottlieb

RCG:vj

FRANK A. LOPEZ
MARVIN E. SCHECHTER
MAURICE H. SERCARZ

SERCARZ, SCHECHTER S LOPEZ
A T T O R N E Y S A T L A W

189 MONTAGUE STREET, SUITE 500

BROOKLYN HEIGHTS, N .Y 11201

(718) 624-2112 JAMES A. COHEN
COUNSEL

September 8, 1987

James I. Meyerson
396 Broadway, Suite 601
New York, NY 10013

Re: Spencer v. Muriale, et al.

Dear Mr. Meyerson:
I am in receipt of your recent inquiry as to whether I represent

Cosmo Muriale in the above referenced matter.
I spoke to Mr. Muriale on August 31, 1987. At that time, he

advised me that he lacked funds to retain counsel to represent him
in this matter. However, he was seeking help from relatives to aid
him in hiring an attorney to defend the instant law suit.

Thus, I do not represent Mr. Muriale in the instant litigation
at this time.

Very truly yours,

MS/ lm

MAURICE SERCARZ

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MRS. ERNESTINE SPENCER, et al,
Plaintiff,

-against-
FRANK CASAVILLA, et al,

Defendant.

87 Civ. 3424 (CSH)
ORDER

Counsel for the parties having appeared at a status
conference in the captioned action on September 18, 1987; and it
appearing that the defendants in the action are involved in a
criminal prosecution arising out of events central to the civil
matter; and believing that pursuit of the civil action while the
criminal matter is pending would potentially prejudice the rights
of the defendants and complicate the judicial administration of
the civil matter; it is hereby

ORDERED, that the Clerk place the above captioned
action on the Suspense Calendar of this Court; and it is further

ORDERED, that either party may apply for restoration of
the action to the active calendar by letter if judicial
intervention becomes necessary.

v N % - . - y .'^ rA C

Jamesl. M eyerson 'll^^v-'^>p
Attorney At Law :
396 Broadway - Suite 601
New York, New York 10013
[212] 226-3310

, V ' \ . y ; ,W

February 16, 1988

The Honorable Michael R. Juviler
Justice/Supreme Court
County of Kings/State of New York
360 Adams Street
Brooklyn, New York 11201

RE: People vs Cosmo Muriale and Frank Casavilla
Indictment # 4372/86

Dear Justice Juviler:

Please be advised that I am in receipt of a copy of the
February 1, 1988 letter to you from Stanley Meyer in
forming you that he is being retained by Frank Casavilla
to represent him and that, as his first step, he will
seek to set aside the plea of guilty entered by his
client on January 25, 1988 and accepted by the Court.
I understand that Mr. Casavilla, based on his plea, will
be sentenced on February 24, 1988. I understand that he
has surrendered to the Court, after his continued release
upon the entry of his plea, and that he is now incarcerated.
As you know, I represent the Spencer family and I have ap
peared with Mrs. Spencer, in Court, on several occasions.
I expect to be present on the 24th along with Mrs. Spencer.

- * -4 y * w• ■; - rk-

J Honorable Michael R.
Jge two (2) cont.
,tebruary 16, 1988

Juviler

To the extent that the Spencer family has a deeply vested
interest in the nature, substance and outcome of all of
the proceedings herein and as inter-related hereto, we feel
it most appropriate to enter our position, in writing, re
garding the proposed and anticipated effort by Frank Casavilla
to withdraw his previously entered and accepted plea of
murder in the second degree arising out of the death of Samuel
Benjamin Spencer, III.

It is our position that there is absolutely no basis whatsoever
for the action to withdraw the plea. I must say that the
Court went to extraordinary extents to make sure that Defendant
Casavilla understood fully and completely everything which was
transpiring in connection with the plea. It is my knowledge
and understanding that Mr. Casavilla's attorney was fully involved
in the entire proceeding to make sure that his client was fully
aware of his rights and fully aware that, by knowingly entering
the plea, he was giving up certain rights to which he was entitled
under the Constitutions of both the United States and the State
of New York. Yet, Mr. Casavilla, with full knowledge of the
circumstances and with full knowledge of what he was doing and why
he was doing such, entered a plea and waived whatever rights he
otherwise possessed with respect to his status as an accused
criminal defendant.

We feel that the Court exercised diligence beyond that even required
by law in order to make sure that the rights of the Defendant
Casavilla were fully understood by Defendant Casavilla and to make
sure that he fully understood what he was doing when he elected
to enter his plea. As a matter of fact, I do not believe that
anyone can accuse the Court of short-changing any of the Defendants
in terms of hearing their positions and making sure that.,every
right, to which they are entitled by law and under the Constitution,
are absolutely applied and guaranteed.

/ Honorable Michael R. Juviler
•ige three (3) cont.

/ebruary 16, 1988

In light of the foregoing, we respectfully request that the
Court reject any motion made on behalf of Frank Casavilla
to set aside his previously entered plea of guilty to murder in the second degree.

the rights of the Defendant deserve to be accorded every
ounce of constitutional guarantee without exception, it would
be an absolutely unjust act by the Court to allow the withdrawal
of the plea at this point. It would telegraph.to all that
the entire process of criminal justice is realiy a game and that,
however much the rights of a Defendant are aboslutely guaranteed
by a Court, the entry of a plea means nothing. In this particular
circumstance, with the publicity which has attached to the entry
of the plea and, in that context, to the underlying incident,
for the Court to permit the withdrawal of the plea on no substantiated
basis relative to an alleged violation of Defendant Casavilla's
rights, would telegraph to the. public at large and to all of the
victims of such heinous acts that the perpetrators can act, in and out
or Lourt, without fear of consequences and responsibility for their knowing conduct and acts.

We appreciate the opportunity which you have provided to us in this regard to express our views.
Thank you.

JIM
copy:
Mr. and Mrs. Samuel Spencer
Stanley Meyer, Esq.
Daniel Saunders, Esq.

8 V- ' f!

El iz a b e t h Ho lt z m a n
District Attorney

D is t r ic t a t t o r n e y o f K in g s C o u n t y
M u n i c i p a l B u i l d i n g

B r o o k l y n . N.Y. 11201
(718 ) 802-2000

February 22, 1988

Honorable Michael R. Juviler,
Acting Justice of the Supreme Court
120 Schermerhorn Street
Brooklyn, New York 11201

Re: People v. Frank Casavilla
Indictment No. 4372/86

Dear Justice Juviler:
On January 25, 1986, the above-named defendant entered

a plea of guilty to one count of murder in the second degree
in full satisfaction of the indictment. The facts upon
which this indictment was based are as follows:

In the early morning hours of May 28 , 1986, Samuel
Spencer, a 20 year old black male, was riding his bicycle on
Surf Avenue. When Spencer rode near four parked automobiles
owned by the defendant and his friends, he was verbally
challenged by one of them. As Mr. Spencer tried to ride
away from the verbal confrontation toward his nearby home,
the defendant Casavilla, and his five friends entered their
four vehicles and began to pursue Mr. Spencer. The chase
culminated several blocks away on West 20th Street between Surf and Mermaid Avenues.

When one of the cars drove up onto the sidewalk, it cut
Mr. Spencer "off, and caused him to fall from his bicycle.
Four of the six youths, including the defendant Casavilla,
set upon Mr. Spencer and brutally and relentlessly beat him
while he was down. The defendant Casavilla also stabbed him
three times with a knife, yelling, "You’re going to die now,
nigger." He died shortly thereafter at Coney Island
Hospital. An autopsy revealed massive head trauma,
including multiple skull fractures and corresponding
injuries to the brain, as well as three stab wounds to the
back.

Honorable Michael R. Juviler
February 22, 1988
Page Two

This was a senseless and barbaric attack upon an unarmed
man who was merely attempting to ride his bicycle home. The
evidence clearly indicates the defendant Casavilla played a
major role in causing Mr. Spencer's death. The defendant
Casavilla was the driver of one of the four vehicles that
chased Mr. Spencer. When Spencer was knocked off his bike,
the defendant got out of his car and actively participated
in a ferocious attack on the defenseless Mr. Spencer.
Casavilla then stabbed Mr. Spencer 3 times in the back.

The defendant Casavilla's cruel epithet as he mortally
wounded Mr. Spencer leaves no doubt about the defendant's
racial motive for killing the deceased and makes the murder
of a defenseless and outnumbered victim even more reprehen
sible .

This was not an isolated incident in an otherwise
exemplary life: the defendant Casavilla was on probation
at the time he perpetrated this brutal act.

The tragic impact of this wanton crime on the Spencer
family has been enormous. Mr. Spencer's parents have suf
fered greatly as a result of the loss of their only son.
According to Mrs. Ernestine Spencer, the mother of the vic
tim, she has been unable to continue her employment because
of the tremendous grief and emotional distress caused by his
murder. Her husband's pre-existing health problems have
been greatly' exacerbated because of the crime. Furthermore,
two of the deceased's sisters have moved from the New York
area to get away from a place that has so many '• painful
memories associated with it.

It is the opinion of the District Attorney's Office that
the plea of guilty entered by the defendant Casavilla on
January 25th (after a jury agreeable to all parties was
selected and sworn) was fair, based in fact and promoted the
interests of justice.

Honorable Michael Juviler
February 22, 1988
Page Three

This was a brutal, racially motivated killing, a crime
that tears apart the basic fabric of our community. We have
a multi-ethnic, multi-racial, and multi-religious society.
The rights of all of us to use the streets regardless of our
race, creed or color have been threatened by this killing.
Although nothing can restore Mr. Spencer to life, this
defendant's conviction will begin to help heal and repair
the damage. We cannot tolerate a lynch mob mentality on the
streets of Brooklyn.

Sincerely,

DANIEL A. SAUNDERS
Assistant District Attorney
Homicide Bureau

DAS:j s

cc: John J. Monteleone, Esq.
32 Court Street - Suite 1702
Brooklyn, New York 11201

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

MRS. ERNESTINE SPENCER, etc.,
et al.,

PLAINTIFFS 87 Civ 3424/Judge Haight
NOTICE OF MOTION FOR THE
REINSTATEMENT OF THIS MATT
TO THE ACTIVE CALENDAR

FRANK CASAVILLA, et al.,
DEFENDANTS * I.

Now come the Plaintiffs, by and through their counsel James
I. Meyerson, George E. Hairston, and Jonathan C. Moore, 396 Broad-
way~Suii_e #601, New York, New York 10013 (112) 226-3310/6646, and
hereby notice a Motion, to be considered before the Honorable Charles
Haight, United States District Judge/Southern District of New York,
United States Courthouse/Foley Square, New York, New York at a
proceeding to be held on the 22nd day of July, 1988 at 10:00 A.M.
or on a date and at a time otherwise directed by the Court, to
have this matter reinstated to the active calendar.

YOU ARE INVITED TO ATTEND AND/OR SUBMIT.
DATED: New York, New York

July 5, 1988

GEORGE E. HAIRSTON
JONATHAN C. MOORE
JAMES I. MEYERSON
396 Broadway-Suite #601
New York, New York 10013
(212) 226-3310
ATTORNEYS FOR PLAINTIFFS
BY: 3

TO:
ROBERT GOTTLIEB
Sussman, Gottlieb & Needleman
353 Veterans Memorial Highway
Commack, Long Island, New York
(516) 543-8300
STANLEY M. MEYER
DePetris and Meyer
150 Broadway
Suite # 1212
New York, New York 10038
(212) 233-0011
MS. LUCY CASAVILLA
70-12 15th Avenue
Brooklyn, New York 11228

MAURICE SERCARZ
189 Montague Street
Suite # 500
Brooklyn, New York 11201
c/o Sercarz Schechter & Lopez
(718) 624-2112

JACK WLODAWER
Molod Berkowitz and Godosky
12 East 41st Street
8th Floor
New York, New York 10017
(212) 213-8500

BY:

- 2-

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

MRS. ERNESTINE SPENCER, etc.,
et al.,

PLAINTIFFS
vs

AFFIDAVIT OF
JAMES I. MEYERSON

FRANK CASAVILLA, et al.,
DEFENDANTS * 1

STATE OF NEW YORK
SS. :

COUNTY OF NEW YORK

James I. Meyerson, being first duly sworn, deposes and
says :

1. I am one of the attorneys for the Plaintiffs herein
along with George E. Hairston and Jonathan C. Moore.

2. This is an action arising out of the death of Samuel
Spencer, III on May 28, 1986 when it is alleged that the
Defendant parties, acting individually and collectively and
in concert, set upon the Plaintiff's decedent, beat him and,
by such,viciously caused his death.

3. The Plaintiffs contend and allege that the acts
taken by the Defendant parties, individually and collectively,
were intentional and grounded in hostility toward the Plaintiff's
decedent because of his race, Samuel Spencer , III being a
Black American citizen. The Defendants are white individuals.

4. After an initial conference in this matter, the
Court placed the same on the inactive calendar pending the resolutiot
of criminal proceedings being undertaken by the Kings County,
New York District Attorney.

5. As a consequence of the proceedings before Acting
Supreme Court Justice Michael Juviler, Supreme Court/Kings County,
the District Attorney of Kings County successfully secured the
following convictions, either by plea or after trial or both:
Frank Casavilla pled guilty to murder and was sentenced to a term
of 15 years to life. Mr. Casavilla is presently incarcerated
and is appealing his plea conviction. Cosmo Muriale, after
an initial mis-trial, pled guilty to manslaughter in the first degre
and was sentenced to a term of 8 and 1/3 to 25 years. He is pre
sently incarcerated. It is not known whether or not he is
appealing his plea conviction. Just last week, Frank D'Antonio
was convicted of assault in the third degree. He was convicted
after a jury trial. He is presently incarcerated. He is scheduled
to be sentenced in August. Douglas Mackey, who cooperated in
the efforts ,is scheduled to be sentenced shortly. It is believed
that he will plea to attempted manslaughter in the first degree;

- 2 -

and it is expected that he will receive a term of 1 and 1/2 to
4 and 1/2 years.

6. To date, only Defendant Frank D' Antonio has answered
herein. His then criminaal defense counsel, Robert Ellis, Esq.,
answered on his behalf. Since that time, Mr. D Antonio has
secured other counsel who represented him in his recent criminal
trial: Jack Wlodawer.

7. At the initial conference herein, it is believed that
Lucy Casavilla, wife of Frank Casavilla, attended said proceedings;
and, in addition, it is believed that either Mr. D' Antonio or
Mr. Murialewas present as well. No answers have been received
from Mr. Mackey, Mr. D' Antonio or Mr. Muriale.

8. In his Answer, Mr. Ellis raised a venue issue on behalf
of Mr. D' Antonio.

9. Between the initial conference and the instant Motion, the
Plaintiffs sought to have this matter restored to the calendar for
the purposes of inquiring into the assets status of the Defendant

parties, individually and collectively; and this Court denied the
Motion in that context.

-3-

10. It is believed that it is appropriate for this
matter to be placed on the active calendar at this point in
time and that a conference be held to determine how the
matter should proceed, particularly in light of the non appearance,
to date,by the certain of the Defendant parties herein and, also,
the change in counsel by Defendant D' Antonio who initially
appeared by Answer herein.

WHEREFORE and in light of the foregoing, it is respectfully
requested that the Plaintiffs Motion be granted and that this matter
be reactivated and set for conference at the Court's direction and
convenience.

DATED: New York, New York
July 5, 1988

Respectfully submitted

JAMES I. MEYERSON
396 Broadway-Suite // 601
New York, New York 10013
(212) 226-3310
ATTORNEY FOR PLAINTIFFS/MOVANTS
BY:

Sworn to and subscribed before me
this 5th day of July, 1988.

My Commission Expires:
NOTARY PUBLIC

-4- 41
Uuaimea in ^

Commission Expires Marehr'36, iSov
ixu. — -■

Qualified in Kings County

-------------------------------------------------------------------------------------------------------------- X

MRS. ERNESTINE SPENCER, et al., :
Plaintiff, : 87 Civ. 3424 (CSH)

-against-
FRANK CASAVILLA, et al.,

Defendant. :
----------------- X

HAIGHT. District Judge:

By my order of September 21, 1987 I placed the above action on
the suspense docket of this Court pending the outcome of criminal
proceedings against the defendants that arose out of the events
described in the civil complaint. I specifically provided in that
order that any party could apply by letter to reactivate the case if
judicial intervention became necessary. Plaintiffs have now made such
an application by way of formal motion papers.

Plaintiffs' papers report that all four of the defendants have
now either pled guilty or have been convicted at trial in state court.
It is not known for sure which defendants plan, or are already engaged
in, appeals of their sentences. Only one defendant, Frank D'Antonio,
has answered in this action, although plaintiffs aver that all
defendants were properly served with the summons and complaint.

The Court has not received any opposition to plaintiffs' motion
to reactivate the case. However, in a letter to the Court, dated
October 17, 1988, counsel for plaintiffs, James I. Meyerson, Esq.,

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MEMORANDUM OPINION
AND ORDER

admits that he does not know where any of the defendants are
incarcerated and that plaintiffs' motion papers were merely sent to
defendants' criminal defense counsel with a request to forward them
to the defendants. Mr. Meyerson candidly acknowledges that the papers
probably were not forwarded, and that therefore the current motion
papers may not have been served upon any of the defendants. I do not
consider that fact fatal to plaintiffs' application, however, since
I consider it well within my discretion to reactivate the case sua
soonte.

It is now time to make progress in this civil action. The case
is one and one-half years old, and all defendants have been adjudged
guilty by a state trial court. The appeals process, if it runs it
full course, could take many months. Some defendants may choose not
to appeal at all. Plaintiffs should not be required to suffer further
delay absent a clear showing why such delay is necessary as to any
particular defendant.

I therefore direct the Clerk to restore this action to the active
calendar of this Court. Plaintiffs are directed to serve this order,
along with a copy of the complaint, upon all defendants within forty-
five (45) days of the date of this order. Proof of that service
should be made by plaintiffs in the manner provided for by Fed. R.
Civ. P. 4(g).1 All defendants who have not already done so are

I do not consider the fact that defendants are incarcerated
to be an insurmountable barrier to their proper service.
Presumably the location of an incarcerated inmate is public
information that can easily be obtained with a little legwork on
the part of plaintiffs.

2
43

directed to answer or move in response to the complaint within forty-
five (45) days of service with a copy of this order and the complaint.

If any of the defendants do not answer or move within the time
provided, then plaintiffs may seek the appropriate default judgment.
If any of the defendants think themselves entitled to a further stay
of this action, they should make that application within the time
provided above for a responsive answer or motion.

Counsel for plaintiffs is directed to send the Court, on or about
February 20, 1988, a letter describing the current status of the
action.

The foregoing is SO ORDERED.
DATED: New York, New York

November'J. , 19 88

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

CIVIL NO. 87 Civ 3A2A/Judge Haight

MRS. ERNESTINE SPENCER,
PLAINTIFF
vs

FRANK CASAVILLA, FRANK D'ANTONIO,
COSMO MURIALE, DOUGLAS MACKEY,
JOHN DOES,

NOTICE OF ENTRY OF
OPINION AND ORDER
[JUDGE HAIGHT/NOVEMBER
A, 1988]

DEFENDANTS

PLEASE TAKE NOTICE that the attached Memorandum and Order
was issued by Judge Haight in the above captioned and numbered
matter on November A, 1988.

DATED: New York, New York
November 7, 1988

Respectfully submitted

JAMES I. MEYERSON
396 Broadway-Suite // 601
New York, New York 10013
(212) 226-3310
ATTORNEY FOR PLAINTIFFS
BY:

TO:
Mr. Frank Casavilla
//88A-2357
Great Meadow Correctional Facility
Post Office Box // 51
Comstock, New York 12821

Mr. Douglas Mackey
// 88A-8210
Downstate Correctional Facility
Post Office Box // 445
Fishkill, New York 12524
Mr. Cosmo Muriale
#88A 4788
Attica Correctional Facility
Exchange Street/Post Office Box // 149
Attica, New York 14011
Mr. Frank D Antonio
Rikers Island Identification // 120 88 0611
Riverview Correctional Faiclity
Post Office Box // 158
Ogdensburg, New York 13669

Ms. Lucy Casavilla
70-12 15th Avenue
Brooklyn, New York 11228

- 2 -

------------------------------------------------------------------------------------------------------- X

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MRS. ERNESTINE SPENCER, et al.,
Plaintiff,

-against-
FRANK CASAVILLA, et al.,

Defendant.

87 Civ. 3424 (CSH)
MEMORANDUM OPINION

AND ORDER

HAIGHT. District Judge:

The Court has not received any opposition to plaintiffs' motion
to reactivate the case. However, in a letter to the Court dated
October 17, 1988, counsel for plaintiffs, James I. Meyerson, Esq.,

It is now time to make progress in this civil action. The case
is one and one-half years old, and all defendants have been adjudged
guilty by a state trial court. The appeals process, if it runs it
full course, could take many months. Some defendants may choose not
to appeal at all. Plaintiffs should not be required to suffer further
delay absent -a clear showing why such delay is necessary as to any
particular defendant.

directed to answer or move in response to the complaint within forty
five (45) days of service with a copy of this order and the complaint.

Counsel for plaintiffs is directed to send the Court, on or about
February 20, 1988, a letter describing the current status of the
action.

The foregoing is SO ORDERED.
DATED: New York, New York

November'. , 1988

CERTIFICATE OF SERVICE

James I. Meyerson, attorney for the Plaintiffs, certi
fies that on the 8th day of November, 1988, I did serve a copy
of the foregoing Notice of Entry and the attached November 4,
1988 Opinion and Order of the Honorable Charles Haight, Judge,
United States District Court/Southern District of New York, on
each of the Defendant parties herein by mailing such to them
at their respective addresses [as known to Plaintiff's counsel],
which are set forth herein as page two (2).Said mailing was
made postage prepaid, first class.

DATED: New York, New York
November 7, 1988

396 Broadway-Suite // 601
New York, New York 10013
(212) 226-3310
ATTORNEY FOR PLAINTIFF

BY:

-3

DM .Mackey
88 a 3210 1 f 9
Box F
Downstate Correctional
Facility

Nov. 9,1933

Dear Judge Haightj
T "am writing this communication to inquire for-'r-n extention

in this matter. I wish to secure counsel on my behalf and i am currently
doing so. I am currently engauged in collecting information of this

case.

Thank You for your Attention and Consideration herein.
Respectfully Yours

November 18, 1988

Honorable Charles S. Haight, Jr.
United States District Court
southern District of New York
Foley Square
New York, New York 10007
Re: Mrs. Ernestine Spencer, et al., against

Frank Casaville, et al.
Dear Sir;
I have received papers here at Attica State Prison where I am in
carcerated and do not undestand them or know what I should do
with them.
I am presently sentenced to serve 8-1/3 to 15 years and do not
have an attorney any more nor do I have any money to hire one.
I am writing to you for advice about what to do next. Can the
Court appoint a lawyer for me. I do not have any money at all
and since I am in jail, I will not earn any for a long time.
Any help you can give me would be very much appreciated.
Yours sincerely,

Cosmo Muriale

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK x
MRS. ERNESTINE SPENCER, et al.,

Plaintiff,
-against-

FRANK CASAVILLA, et al.,
Defendant.

: 87 Civ. 3424 (CSH)
: ORDER

HAIGHT. District Judge:

I have received from defendant Douglas Mackey a letter dated
November 9, 1988 in which he says "I am writing this communica
tion to inquire for an extention in this matter." Defendant
informs the Court that he needs the extension to secure counsel
and to collect information on the case.

I construe Mackey's letter as a request to extend the time
for filing a responsive pleading that I set in my November 4,
1988 Memorandum Opinion and Order. That order requires all
defendants in the action to answer or move within forty-five (45)
days of the date they are served by plaintiff with a copy of the
complaint and the November 4 order. Defendant Mackey has ap
parently been so served, since he encloses with his November 9
letter a copy of a document acknowledging such service.

1
53

Defendant's request is reasonable and is
Defendant Mackey is directed to answer or move
complaint on or before January 18, 1988.

therefore granted,
in response to the

It is SO ORDERED.

Dated: New York, New York
November -o 7 , 1988

2
54

----------------------------------------- X
MRS - ERNESTINE SPENCER, et al. , :

Plaintiff, : 87 Civ. 3424 (CSH)
-against-

FRANK CASAVILLA, et al.,
Defendant. :

----------------------------------------- X

HAIGHT. District Judge:

The Court has not received any opposition to plaintiffs' motion
to reactivate the case. However, in a letter to the Court- dated
October 17, 1988, counsel for plaintiffs, James I. Meyerson, Esq.,

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MEMORANDUM OPINION
AND ORDER

admits that he does not Know where any of the detendants are
incarcerated and that plaintiffs, motion papers were merely sent to
defendants' criminal defense counsel with a request to forward the,

a ■ ar'icnowledqes that the papers to the defendants. Hr. Meyerson candidly acknowladq
probably were not forwarded, and that therefore the current notion
papers nay not have been served upon any of the defendants. I do not
consider that fact fatal to plaintiffs, application, however, since
! consider it well within ny discretion to reactivate the case M l

sponte. _ in this civil action. The case It is now time to make progress in this civil
ls one and one-half years old, and all defendants have been f u d g e d
guilty by a state trial court. The appeals process, if it runs it
full course, could take many months, some defendants may choose no
to appeal at all. Plaintiffs should not be retired to suffer further
delay absent a clear showing why such delay is necessary

particular defendant.
! therefore direct the clerk to restore this action to the active

calendar of this Court. Plaintiffs are directed to serv
along with a copy of the complaint, upon all defendants within for y-
f ive <«, days of the date of this order. Proof of that service
should be made by plaintiffs in the manner provided for by Fed. .

. _______ i r H n n o ^ O

Civ, 4 (a 1 A11 defendants who have not already done so are

1 I do not consider the
4-n be an insurmountable
Presumably the location of
information that can easily
the part of plaintiffs.

that defendants are incarcerated
to their proper service.

an* incarcerated inmate is Publican L . , - little legwork onbe obtained with a liuuxe ^

fact
barrier

2
56

directed to answer or move in response to the complaint within forty-
five (45) days of service with a copy of this order and the complaint.

Counsel for plaintiffs is directed to send the Court, on or about
February 20, 1988, a letter describing the current status of the
action.

The foregoing is SO ORDERED.
DATED: New York, New York

November{| , 1988

i ^
CHARLES S. HAIGHT, JR.

U.S.D.J.

January 13,1989

District Judge Charles S. Haight, Jr.
U.S. District Court|Southern District of N.Y.
4 Foley Square
Chambers 2103
New York, New York 10007
Dear Judge Haight:
I have been instructed by my nephew, Douglas Mackey, to reply
on his behalf to summons #87CIV3424, Spencer vs. Mackey, et al.
On November 9, 1988, Douglas requested and was granted an extension
to reply to said summons on or before January 18, 1989, in order
to secure council and to collect information on the case (copy of
granted extension enclosed)
During this extension, Douglas requested and was denied council
from The Prisoners' Rights Project (copy of letter enclosed);
Civil Legal Asst.Info.; Prisoner's Legal Services of N.Y.; Special
Defender Services; Criminal Defense Division; Legal Defender
Services and the Southern District of N.Y. pro-se Panel, among
other divisions of the Legal Aid Society.
Private legal assistance was also sought but the fees for such
services was way beyond Douglas 1 financial means.
Therefore, at this time, Douglas would like to make a reply of
General Denial and requests that judgement be suspended until
he has completed his term of incarceration of one and one-half
to four and one-half years, after which time he can properly
defend himself.

1345-66 Street
Brooklyn, N.Y. 11219
(718) 256-6931
on behalf of:(new address)
Douglas Mackey
(88A8210 1C38)
Cayuga Correctional

Facility
Route 38A
Box 1182
Moravia, N.Y. 13118 V

V cc: James I. Meyerson
Hairston, Moore & Meyerson
396 Broadway - Suite 601
New York, N.Y. 10013 5 8

MRS. ERNESTINE SPENCER, et al.,
Plaintiff,

-against-
FRANK CASAVILLA, et al.,

Defendant.

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK x

87 Civ. 3424 (CSH)
ORDER

HAIGHT. District Judge:

I construe Mackey's letter as a request to extend the time
for filing a responsive pleading *" that I set in my November 4,
1988 Memorandum Opinion and Order. That order requires all
defendants in the action to answer or move within forty-five (45)
days of the date they are served by plaintiff with a copy of the
complaint and the November 4 order. Defendant Mackey has ap
parently been so served, since he encloses with his November 9
letter a copy of a document acknowledging such service.

1
59

Defendant's request is reasonable and is therefore granted.
Defendant Mackey is directed to answer or move in response to the
complaint on or before January 18, 198^.

It is SO ORDERED.

Dated: New York, New York
November , 1988

CHARLES S. HAIGHT, JR.
U. S. D. J.

THE LEGAL AID SOCIETY
CRIMINAL APPEALS BUREAU • PRISONERS' RIGH TS P R O JE C T

15 Park Row - 7th Floor, New York, N.Y. 10038 (212) 577-3530

Executive Director and
A tto rn e v-in -C h ie f
A r c h i b a l d R . M u r r a y

A ttorn e y-in -Charg e of the
C rim in al Appeals Bureau
P h i l i p L . W e i n s t e i n

Project D irector
T h e o d o r e H . K a t z

December 1, 1988

D.M. Mackey
88-A-8210
Downstate Correctional Facility
P.O. Box 445
Fishkill, New York 12524
Dear Mr. Mackey:

This is in response to your recent inquiry dated November
16, 1988. The Prisoners' Rights Project represents inmates in
class action lawsuits designed to protect constitutional rights
and to improve prison conditions for large groups of inmates. We
do not, however, represent individual inmates in their liti
gation.

Have you applied to the Southern District of New York pro se
panel for an attorney. If not, I would suggest you do so. I am
enclosing information on how to request assignment counsel.

I am sorry we cannot be of further assistance.
Best of luck.

MDB/na
Enel.

Very truly yours,

Legal Assistant

FEBRUARY 22,1989

JAMES I. MEYERSON, ESQ..
396 BROADWAY
ROOM 601
NEW YORK N.Y. 10013

MR. MEYERSON,
IN REFERENCE TO THE LETTER I RECIEVED FROM YOU,I DENY THAT THERE
WAS ANY RACIAL MOTIVATION INVOLVED WHATSOEVER IN THE EVENTS PER -
TAINING TO SAMUEL SPENCER AND SECONDLY I AM PRESENTLY APPEALING
MY SENTANCE. IF YOU NEED ANY FURTHER- INFORMATION FROM ME YOU CAN
REACH ME AT ATTICA CORRECTIONAL FACILITY.

COSMO MURIALE

CC:HONRABLE CHARLES S. HAIGHT JR.

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK x
MRS. ERNESTINE SPENCER,
individually as the mother of
Samuel Benjamin Spencer, III,_
deceased, and as Administratrix
of the Estate of Samuel Benjamin
Spencer, III, MR. SAMUEL B.
SPENCER, JR., father of Samuel
Benjamin Spencer, III, deceased,

Plaintiffs,
-against-

FRANK CASAVILLA, FRANK D'ANTONIO,
COSMO MURIALE, DOUGLAS MACKEY,
JOHN DOES,

Defendants.
- - - - - - - - - - - - - - - - - - y

Counsel for plaintiff is directed to file and serve a
Memorandum of Law in support of the contention that this Court is
seized of federal subject matter jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343(3) and 1343(4), in conjunction with the Civil Rights
Act of 1866, 42 U.S.C. §§ 1981, 1985 (3) and 1986. Any of the
jurisdictional bases pled in the complaint but not briefed in
plaintiff's Memorandum of Law shall be deemed withdrawn.

Plaintiff's Memorandum of Law shall be filed and served on or
before May 1, 1989 provided that if counsel's trial schedule makes
such deadline impracticable, the time for filing may be enlarged
upon timely application of counsel.

87 Civ. 3424 (CSH)
ORDER

If so advised,
on or before May 22

SO ORDERED.

Dated: New York,
April i

defendants may file and serve opposing papers
1989.

New York
, .1989

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK x

' -i tU Jt *1.-1

MRS. ERNESTINE SPENCER,
individually as the mother of
Samuel Benjamin Spencer, III,
deceased, and as Administratrix
of the Estate of Samuel.Benjamin
Spencer, III, MR. SAMUEL B.
SPENCER, JR., father of Samuel
Benjamin Spencer, III, deceased,

Plaintiffs,

87 Civ. 3424 (CSH)
ORDER

-against-
FRANK CASAVILLA, FRANK D 'ANTONIO,
COSMO MURIALE, DOUGLAS MACKEY,
JOHN DOES,

Defendants.
-x

A conference was held in the captioned case on April 5, 1989.
Robert L. Ellis, counsel of record for defendant Frank D'Antonio
failed to attend that conference. Counsel for plaintiff stated
that based on his conversations with Mr. Ellis, it was his belief
that Mr. Ellis no longer regarded himself as in the case. The
Court does not share this view, at least at the present.

Mr. Ellis has formally appeared in this case on behalf of
defendant D'Antonio by way of his answer which was filed in this
Court on July 15, 1987. General Rule 3(c) of the Local Rules of
the Southern District of New York provides that no attorney of
record may be relieved of his responsibilities in an action without
an order of the court. No such order has been granted and indeed
counsel has made no application to be relieved. Absent such a 1

•' JC

court order Mr. Ellis remains the attorney of record for defendant
D'Antonio and must therefore take whatever steps appropriate in the
defense of this action, or make a motion to be relieved, following
the procedures set forth in the rule.

SO ORDERED.

Dated: New York, New York
April ^ , 1989

CHARLES S
U. S

HAIGHT, JR.
D. J.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

CIVIL NO.

MRS. ERNESTINE SPENCER,individually
and as the motjer of Samuel Spencer,
III, deceased, and as Administratrix
of the Estate of Samuel Benjamin
Spencer, III, MR. SAMUEL SPENCER, JR.,
father of Samuel Spencer, III, de
ceased,

PLAINTIFFS
vs

FRANK CASAVILLA, FRANK D'ANTONIO,
COSMO MURIALE, DOUGLAS MACKEY, JOHN
DOES,

87 Civ 3424/CSH
m w & oi 0¥ u upport 0F
FOR AN ORDER TO BE
RELEAVED OF REPRESENTATION
OF THE PLAINTIFFS, INDI
VIDUALLY AND COLLECTIVELY,
IN THE ABOVE MATTER

DEFENDANTS * 1

James I. Meyerson, being duly admitted to practice law
in and before the Courts of the State of New York among others
and being duly aware of the penalties for perjury, affirms
under penalty of law as follows:

1. I have been representing the Plaintiffs in the
above captioned litigation; and I was responsible for preparing
the same and filing such against the Defendant parties, indi
vidually and collectively.

2. The Spencer family was referred to me by Norman
Siegel, Esq., Executive Director of the New York Civil Liberties
Union .after he had been advising and counseling the Spencer
family in the context of the criminal proceedings that were
then on-going in the Criminal Court/City of New York/County of
Kings.

----- ---

3. In light of the circumstances under which the Spencer
family was laboring at the time and in light of the request
made by the family to me upon the referral by Mr. Siegel of my
name to the Spencer family and in light of my background and
views and commitments, I agreed to assist the Spencer family;
and, in said context, worked with the family in its relationship
with the District Attorney of Kings County and her staff relative
to the prosecution of the Defendant parties herein in the then
pending criminal case.

4. In addition and once the State criminal proceeding was
completed, I undertook many efforts to try and obtain federal criminal
intervention on behalf of the Spencer family against the Defendants
although I had informed the Spencer family that it was my con
sidered judgment that said efforts would not be successful. While
I agreed with the basic position, I was of the professional judg
ment that the efforts would not be successful and that there would
be no grounds for challenging the exercise of discretion in any
refusal by the United States Attorney and the Justice Department
to get involved after the conclusion of the State criminal proceed
ings .

5. Even after the State criminal proceedings concluded, I
was aware of the dis-satisfaction of the Spencer family with the
outcome of those proceedings; and, in said context, there were
communications, of which I was aware, between the District Attorney s
Office and the Spencer family regarding the same. Furthermore,
I was in communication, with the knowledge of the Spencer family,
with Harcourt Dodds, a ranking official in the Kings County Dis- f

M l

trict Attorney's Office, about the situation.

6. At the same time, I referred the Spencer family to
Doctor Craig Polite, a psychologist, for counseling because of
what I believed to be the severe trauma under which the Spencer
family was laboring and continues to labor to this date. I
understand the anger/anguish and pain and suffering that was
inflicted upon the Spencer family; and, because of my limitations,
I felt it best to have the Spencer family receive professional
counseling. Mrs. Spencer attended for one session but because
of the financial limitations, she could not afford further
counseling. Mrs. Spencer had lost her job because of what I
believe to be the trauma associated with situation herein and the
effect that such hai on her in her personal and professional life.
Mr. Spencer, because of his physical condition, has been unemployed
for a substantial period of time; and he too, as I saw it, was
afflicted with very significant emotional stress and shea in [all
justifiable! associated with his son's death and the circumstances
surrounding the same and the subsequent proceedings relative

thereto.
7. Before I got involved with the Spencer family, they

had been successful, on their own, in securing monies for the
funeral expenses from and under the Crime Victims Board power
and authority to award such. New York State Executive Law, Section
620 et seq■ -3-

M̂SSSSBSgSmH B K

8. I successfully re-opened the proceedings before
the New York State Crimes Victims Board [the proceedings
had been closed];and, with the supporting statement of Doctor
Polite, I was able to secure the award of monies for counseling
to the Spencer family. I had requested that Mrs. Spencer be
awarded monies for income lost as a consequence of her separation
from her employment and what I deemed to be the association
between such separation and the enormous emotional trauma attached
to the death of her son and the circumstances related thereto.
Such request, however, was denied.

9. As the Court is aware, this case was filed in 1987;
and I felt it appropriate to file suchnotwithstanding the problems
that would probably attach to collection of any judgment, because
I believed then and I continue to believe that: there is sound
basis, legally, for the litigation and because, such aside [but
not incidental],it was the corect thing to do on any number of
levels, for the Spencersand, in my judgment, for the public
good. All along, I counseled my clients of the limitations
related to this litigation.

10. I must confess that my counseling has not been
particuarly successful;and I must further confess that, with
all of my good intentions and positive philosophical and
spiritual groundings for such involvement, things simply have
not worked out. As a mater of fact, it is my considered judg
ment that things have deteriorated significantly and they
have been deteriorating from the beginning. I guess, it might

-4-
7C

be said, that, because of the situation at the outset,
the circumstances of representation and attorney client
were difficult at best if not negative. On the other hand,
I hoped against hope that something positive could come
from my involvement.

11. Certainly, it was not my judgment to get involved
for financial remuneration in as much as it was then and
continues to be my judgment that there is little likelihood
that, if a judgment is successful, there will be monies to
collect. Part of the problems that have evolved has been my
candid appraisal and assessment in this respect.

12. Once again, it is my judgment that there is a well
grounded federal case in this matter.

13. On the other hand, it may have been a mis-judgment,
all things considered, to have filed the federal litigation rather
than to have initiated a State Court action [with federal claims
therein]. There are pendent State claims in this action; and,
it is submitted, the action was timely commenced, in my judgment,
on the State claims [intentional tort and negligence claims].

14. I did not sue the parents of the minor Plaintiff because,
in my judgment, it would have been extremely problematic to
obtain judgment, under the circumstances, against the minor
Defendant's parent[s].

-5-

-̂5. The Plaintiffs herein are very deeply concerned
about my exercise of judgment; the delay in these proceedings;
and the overall manner and fashion in which I have handled
the case.

16. I might point out that the expenses that have been
incurred in this case have been assumed by me and solely by
me; and I accept such,understending, as I did,that the Spencer
family was in no shape, on several levels, to address the same.

17. Things have simply deteriorated; and I have confessed
that the case is beyond me --not the case, the situation of
which the case is only one aspect.

18. I was involved in two deeply disturbing conversations
wuth the Spencer family: on Friday, April 28, 1989 with Mr.
Spencer; and on Monday, May 1, 1989 with Mrs. Spencer.

19. I reluctantly conclude that I cannot be involved in thi
matter any further. My concern, beyond such, is much broader;
and such is, simply, what we can do to assist the Plaintiffs.
Such, at a basic level, is not the concern of the Court. On
the other hand, I believe that the situation herein is critical
and beyond my powers/abilities/capabilities to effectively
address, legally or otherwise.

It is requested, as well, that George E. Hairston and Jonathan C
Moore, both of whom are listed as counsel for the Plaintiffs
be releaved. In reality, I have been solely responsible for all
aspects of the litigation and related matters; and they appear
simply on paper. They should be releaved as their involvement has been non existant.

- 6 -

20. I am open to whatever suggestions and directions
that the Court may have in this regard and respect. However,
I must request an Order releaving me of any further obligations
or responsibilities. I might point out that I have indicated
to the Spencer family that they should go out an secure new
counsel; and I have been informed by the family that, apparently,
they have communicated with other counsel and that other
counsel seemingly are disinterested because of how I have handled
the case, as I understand the same. I have, as well, recommended
that, if the Spencer family feels that my representation in
this case and otherwise, is suspect, the family should feel free
to file a Complaint against me and seek an investigation. Such
is the family's right; and, while I do not cherish the possibility
of being investigated [all circumstances considered], nonethelss,
I feel such is the right of the family and a right which should
be exercised if the family deems me to have been inappropriate
in my behavior/attitudes/efforts/tactic/etc.

21. For just cause, therefore, I request that I be releaved
herein; and, in addition, that the Court convene a proceeding,
if it deem such appropriate, to address this matter and to give
the Spencer family the opportunity to be heard in all respects.
DATED: New York, New York

May 2, 1989
bmitted.

TAMES I. MEYERSON
396 Broadway-Suite #601
New York, New York 10013
[212] 226-3310
ATTORNEY AT LAW
BY

Ida

Mrs. Ernestine Spencer
30 Prospect S t .
Yonkers, N Y. 10701
(914) 965-0502

Hon. Judge Charles Haight
U.3. District Judge
Southern District of New York
United States Courthouse
Foley Square
New York, N.Y. 10007
Re: Spencer V.87 Civil 3424/CHS-/DNY

Dear Judge Haight,

This letter is in answer to the request you made as to
why1 I think attorney James Meyerson should or should not be taken
off the case. I would like him to remain because three years ago
he agreed to represent us. Now he wants out and we have spoken to
other lawyers who are unwilling to accept the case at this late
date. We are afraid that now, without his representation, the
case is doomed.

Mr. Myerson claims that he can no longer work for me or
my husband because of an incident that transpired via telephone
on Apr ii 28, 1989.

Myerson had a lengthy conversation with my husband, Sam
Spencer, Jr., which provoked my husband to anger with his
derogatory remarks. In the conversation, Myerson said, "I have
always been of the view that if we do prevail in the civil case
or when we do prevail, the amount of money available to the
defendants will be so limited that you will not ultimately
achieve a great deal of money. I am not being negative in said
respect, I am just trying to be candid. Most attorneys, I believe
probably would have shied away from the case precisely because of
the outcome in terms of actual monies and collection thereof is
problematic."

Further he said, "Even though we pursue this case, let's
face it, this would not bring your son back." Myerson claims my
husband spoke of murder and suicide as if he would do harm to
himself or others. This is not true and Myerson misunderstood my
husband's remarks. My husband was trying to convey his
frustration and disatisfaction with the outcome of the four
separate criminal trial that we lived through last year. Money is
not the issue, we want to see justice done for our son's killers
in the federal courts.

My husband and I were also very upset when we heard that
Mr. Myerson and Federal prosecutors in the Eastern District did
not believe iny son's case had merits as a violation of the Civil
Fights Act. Brooklyn District Attorney Elizabeth Holtzman herself
told me the crime was "a vicious and horrendous act of racial
hatred." The presiding judge, State Supreme Court Justice Michael
Juviler also described this as vicious racially-motivated murder.

We have spoken to other lawyers to no avail. Each time,
we have been asked why we want to change lawyers after such a
long time. When we give an answer, we are told, "Why did he take
the case in the first place if he had an attitude like that?"

We are also baffled by Mr. Myerson change of heart.

Whether or not Mr. Myerson continues to represent us, I
believe that our case is a legitimate one that should be looked
at seriously by the federal courts. Certainly we should be
represented by a lawyer who believes in us and the case. My son's
civil rights were indeed violated: he was innocently riding his
bike when he was attacked by this gang and brutally beaten to
death with a baseball bat as they screamed racial epithets. That
is when his freedom and his life were taken from him.

I hope you will see it in your wisdom to help us to find
some justice in the courts. We would like to believe that there
is justice for all especially for our son.

S incerely,

Ernestine Spencer

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK _ _ _ -x
MRS. ERNESTINE SPENCER, individually
as the mother of Samuel Benjamin
Spencer, III, deceased, and as Ad
ministratrix of the estate of Samuel
Benjamin Spencer, III, MR. SAMUEL
B. SPENCER, JR., father of Samuel
Benjamin Spencer, III, deceased,

Plaintiffs,
-against-

FRANK CASAVILLA, FRANK D'ANTONIO,
COSMO MURIALE, DOUGLAS MACKEY,
JOHN DOES,

Defendants.
- - - - - - - - - - - - - - - - - - -X
HAIGHT. District Judge:

James I. Meyerson, Esq. moves for an order under General Rule
3(c) of this Court relieving him of professional responsibility as
counsel for plaintiffs. The stated basis is that a deteriorating
relationship has made it "no longer tenable for him, personally or
professionally, to continue in his capacity for attorney for the
plaintiffs." Notice of Motion at 2.

The plaintiffs, Mr. and Mrs. Spencer, oppose the application
of counsel to withdraw. They say that Mr. Meyerson agreed to
represent them three years ago; that they have spoken to other
lawyers "who are unwilling to accept the case at this late date";
and that certain attitudes ascribed by Mr. Meyerson to Mr. Spencer
in the motion papers resulted from a misunderstanding.

87 Civ. 3424 (CSH)
MEMORANDUM OPINION

AND ORDER

' J . j ’ ,'±m -g.Sju i ■' 'Jto» r .lJ&3

In a separate Memorandum Opinion and Order filed concurrently
with this one, I address the question whether the complaint alleges
claims enforceable under federal law. At a status conference I
tested the basis for federal jurisdiction, as I am bound by law to
do. Mr. Meyerson submitted a thorough and able brief in support
of plaintiffs' federal claims. However, for the reasons stated in
that separate opinion, I have concluded that the complaint does not
allege viable federal claims. In consequence the Clerk has been
directed to dismiss the federal claims with prejudice, and the
pendent state law claims without prejudice.

In this procedural posture, I deny Mr. Meyerson's motion for
an order to withdraw as plaintiffs' counsel. The case is no longer
in the stage of trial preparation or trial, where disagreements
between client and attorney, personality conflicts, and the like
take on complex dimensions. The question, for the present at
least, is whether this Court reached the correct conclusion in
dismissing the complaint. That presents an issue of law for the
Court of Appeals. While I have done the best I can, and believe
my opinion to be correct, the case turns upon a point of law for
which I can find no Supreme Court or Second Circuit Court of
Appeals authority squarely in point. The Court of Appeals may well
take a different view from my own. It has done so, more than once,
in the past.

Mr. Meyerson is an intelligent, forceful and articulate
advocate in this important and difficult area of the law. He is
as qualified as any attorney to brief the case to the Court of

Appeals and present oral argument to that tribunal. If Mr. and
Mrs. Spencer wish Mr. Meyerson to continue in the case, then giving
the present procedural circumstances it seems to me right to ask
him to do so.

To reiterate, the controlling question for now is one of law.
It is sometimes difficult for lay clients to understand that
federal courts are courts of limited jurisdiction. Unlike state
trial courts of unlimited jurisdiction, which with narrow excep
tions can hear every kind of case and grant every requested relief
so long as the defendant be found within the jurisdiction, federal
courts can act only if language in the United States Constitution
or a statute passed by the Congress authorizes them to do so. The
controlling issue in this case has become whether there is a
sufficient basis in federal law to invoke the limited jurisdiction
of this federal court. Because Mr. Meyerson is well qualified to
urge plaintiffs' case in the Court of Appeals, and the present
posture of the case may ameliorate some of tha personality
differences that may have arisen between counsel and plaintiffs,
I deny Mr. Meyerson's motion to withdraw as plaintiffs' counsel,
and rely upon him to file a timely notice of appeal from the order
of dismissal (if plaintiffs desire to appeal).

Of course, nothing in this opinion prevents plaintiffs from
retaining new counsel at this stage of the case if they wish to do

so. The client may discharge counsel at will, although it does not
work the other way.

Motion denied. It is SO ORDERED.

Dated: New York, New York
July 27, 1989

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ -X
MRS. ERNESTINE SPENCER, individually : 87 Civ. 3424 (CSH)
as the mother of Samuel Benjamin
Spencer, III, deceased, and as Ad- : MEMORANDUM OPINION
ministratrix of the estate of Samuel AND ORDER
Benjamin Spencer, III, MR. SAMUEL :
B. SPENCER, JR., father of Samuel
Benjamin Spencer, III, deceased, :

Plaintiffs, :
-against- :

FRANK CASAVILLA, FRANK D'ANTONIO, :
COSMO MURIALE, DOUGLAS MACKEY,
JOHN DOES, :

Defendants. :
---------------------------------- - - - X
APPEARANCES:

JAMES I. MEYERSON, ESQ.
396 Broadway - Suite #601
New York, N.Y. 10013
Attorneys for Plaintiff
DEFENDANTS PRO SE

HAIGHT. District Judge:

Plaintiffs Ernestine Spencer and Samuel B. Spencer, Jr. are
the parents of the late Samuel Benjamin Spencer, III (hereinafter
"plaintiffs' decedent"). The complaint alleges that on May 28,
1986 defendants assaulted and beat plaintiffs' decedent, the
incident occurring in the vicinity of Surf and Mermaid Avenues and
20th Street, Kings County. Plaintiffs' decedent died later that
day at Coney Island Hospital. Plaintiffs' decedent was black. The
defendants are white.

The District Attorney of Kings County prosecuted the defen
dants on criminal charges. Defendant Mackey testified for the
prosecution and was convicted on a plea of guilty to attempted
manslaughter in the first degree. Defendant Casavilla was
convicted of murder in the second degree and sentenced to 15 years
to life imprisonment. Defendant Muriale was convicted of man
slaughter in the first degree and sentenced to eight and a third
to 25 years imprisonment. Defendant D'Antonio was convicted of
assault in the third degree and sentenced to one year imprisonment.

Plaintiffs commenced this civil action against these four
defendants and "John Does" (defendants never further identified)
to recover compensatory and punitive damages arising out of this
dreadful and tragic incident. The defendants are currently
imprisoned or are otherwise indigent. None has retained counsel
to conduct the defense of this civil action.

Plaintiffs allege federal guestion subject matter jurisdic
tion. Their predicates for doing so are found in the civil rights
statutes, namely, 42 U.S.C. § §1961, 1985(3), and 1986. Plaintiffs
allege claims under those sections. In addition, state law claims
are alleged under pendent jurisdiction. At a status conference the
Court raised the question sua soonte whether viable federal claims
were pleaded. Counsel for plaintiffs has submitted a memorandum
in support of federal jurisdiction. Defendants, unrepresented by
counsel, have submitted no authorities. The Court has considered
the brief on behalf of plaintiffs and conducted independent
research.

I.
S 1981

§ 42 U.S.C. § 1981 provides:
All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and enforce
contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws
and proceedings for the security of persons
and property as is enjoyed by white citizens,
and shall be subject to like punishment,
pains, penalties, taxes, licenses, and exac
tions of every kind, and to no other.

This statute, derived in part from the Civil Rights Act of
1866, "has roots in the Thirteenth as well as the Fourteenth
Amendment" to the United States Constitution. General Building
Contractors Association. Inc, v. Pennsylvania, 458 U.S. 375, 390
(1982). To state a claim under the Fourteenth Amendment, unlike
the Thirteenth Amendment, a plaintiff must allege state involvement
of some kind. Dombrowski v. Dowling. 459 F.2d 190, 196 (7th Cir.
1973). Defendants at bar are private persons who did not act in
conjunction with public officers. Accordingly the question arises
whether § 1981, read in conjunction with the Thirteenth Amendment,
covers the private acts alleged in the complaint.

The first civil right enumerated in § 1981 is that "to make
and enforce contracts." Most acts brought against private persons
under § 1981 deal with contracting. The Supreme Court's most
recent decision in that area is Patterson v. McLean Credit Union,
109 S.Ct. 2363 (1989), a ruling this Term which narrowed the scope

of § 1981 contractual relief. The Court held that racial harass
ment on the job does not fall within § 1981: "Section 1981 cannot
be construed as a general proscription of racial discrimination in
all aspects of contract relations, for it expressly prohibits
discrimination only in the making and enforcement of contracts."
Id. at 2372.

The case at bar does not involve contractual rights. But §
1981 goes on to enumerate other rights. In Mahone v. Waddle, 564
F . 2d 1018, 1026-27 (3rd Cir. 1977), cert, denied 438 U.S. 904
(1978), the Third Circuit referred to them as the "equal benefit"
and "like punishment" clauses, as opposed to the right "to make and
enforce contracts." The plaintiffs in Mahone alleged that
municipal police officers, motivated by racial bias, verbally and
physically abused them, falsely arrested them, and gave false
testimony against them. Defendants argued that a broad reading of
§ 1981 to embrace such conduct would create a § 1981 action in
federal court "whenever a white man strikes a black in a barroom
brawl", 564 F.2d at 1029. The Third Circuit rejected that
argument, on the basis of a "fundamental distinction" between the
rights involved:

The right "to make and enforce contracts"
necessarily is concerned with relations bet
ween private individuals. It is usually with
another individual, not the state, that a
black person would seek to make a contract; it
is that other individual's racially motivated
refusal to make a contract which can cause
harm to the black person. The right "to make
and enforce contracts" can thus be infringed
by private individuals and it is appropriate
that private individuals be held liable for
that infringement.

The words "full and equal benefit of all laws
and proceedings for the security of persons
and property" (emphasis supplied), on the
other hand, suggest a concern with relations
between the individual and the state, not
between two individuals. The state, not the
individual, is the sole source of law, and it
is only the state acting through its agents,
not the private individual, which is capable
of denying to blacks the full and equal bene
fit of the law. Thus, while private dis
crimination may be implicated by the contract
clause of section 1981, the concept of state
action is implicit in the equal benefit cl
ause. The like punishment clause may be read
in the same way.
564 F .2d at 1029.

Two district courts have followed this reasoning by the Third
Circuit and held that state action is necessary to support a claim
under the equal benefits or like punishment clauses of § 1981.
Eggleston v. Prince Edward Volunteer Rescue Squad, 569 F.Supp 1344,
1353 (E.D.Va. 1983), aff'd. without opinion 742 F.2d 1448 (4th Cir.
1984); Williams v. Northfield Mt. Hermon School. 504 F.Supp. 1319
(D.Mass. 1981). But see Hawk v. Perillo, 642 F.Supp. 380, 390
(N.D.I11. 1985) (assault by white males upon black males; district
court regarded the Third Circuit's Mahone analysis as "entirely
unnecessary to the court's conclusion", declined to follow it, and
held that § 1981 prohibits "private as well as official acts of
discrimination" in non-contractual areas as well).

Neither the Supreme Court nor the Second Circuit appear to
have squarely addressed this particular issue. I find myself in
agreement with the Third Circuit's analysis in Mahone, and
accordingly conclude that the complaint at bar, involving private
conduct of a non-contractual nature, does not allege a viable claim

v *1 /

under § 1981. That conclusion is based in part upon considerations
which underlie plaintiff's alternative jurisdictional basis, §
1985(3), to which I now turn.

II.
6 1985 f 3)

42 U.S.C. § 1985(3) provides in pertinent part:
If two or more persons in any State or Ter
ritory conspire or go in disguise on the
highway or on the premises of another, 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; or
for the purpose of preventing or hindering the
constituted authorities of any State or Ter
ritory from giving or securing to all persons
within such State or Territory the equal pro
tection of the laws;... in any case of con
spiracy set forth in this section, if one or
more persons engaged therein do, or cause to
be done, any act in furtherance of the object
of such conspiracy, whereby another is injured
in his person or property, or deprived of
having and exercising any right or privilege
of a citizen of the United States, the party
so injured or deprived may have an action for
the recovery of damages occasioned by such
injury or deprivation, against any one or more
of the conspirators.

To state a cause of action under § 1985(3) a plaintiff must
allege (1) a conspiracy (2) for the purpose of depriving a person
or class of persons of the equal protection of the laws, or the
equal privileges and immunities under the laws; (3) an overt act
in furtherance of the conspiracy; and (4) an injury to the
plaintiff's person or property, or a deprivation of right or
privilege of a citizen of the United States. Traggis v. St.

6
86

Barbara's Greek Orthodox Church. 851 F.2d 584, 586-87 (2d Cir.
1988) , citing Griffin v. Breckenridae. 403 U.S. 88, 102-03 (1970).
§ 1985(3) provides no substantive rights itself; instead, it
"provides a remedy for violation of the rights it designates."
Great American Federal Savings & Loan Association v. Novotny, 442
U.S. 366, 372 (1979). However, as the Second Circuit observed in
Traggis at 587: "Determining which rights the statute 'desi
gnates '... is not always a simple matter." Clearly, § 1985(3)
provides a remedy for conspiracies to deprive persons of their
rights under the United States Constitution. "Less clear is the
extent to which the statute remedies injuries resulting from
private conspiracies to deprive persons or classes of persons of
the equal protection, or equal privileges or immunities under,
federal statutory law or state law." Ibid. In Traggis, the Second
Circuit left that broader question for another day. Id. at 591.

In Stevens v. Tillman. 855 F.2d 394 (7th Cir. 1988), the
Seventh Circuit said that § 1985(3):

...addresses private acts— going "in disguise
on the highway" is a reference to the M.O. of
the Ku Klux Klan— yet condemns only deeds that
"deprive" the victim of "the equal protection
of the laws, or of equal privileges and im
munities under the laws", something within the
domain of government exclusively. The admix
ture of private and public action has befud
dled courts ever since.
Id. at 403 (citing Griffin v. Breckenridge.
supra; Novotny. supra; and United Brotherhood
of Carpenters v. Scott. 463 U.S. 825 (1983).

7
87

"It is hard", the Seventh Circuit observed after reflecting on
these three Supreme Court cases:

to come up with an enduring interpretation of
such an opaque statute, when the Court tries
on the one hand to avoid turning all state
torts into federal offenses and on the other
to give some content to a statute that if read
naturally speaks only to state action and
therefore duplicates § 1983.
Id. at 404.

In Stevens v. Tillman the Seventh Circuit, having considered
the Supreme Court's three "contemporary cases", concluded that §
1985(3) reaches three kinds of racially-motivated private con
spiracies: (1) to deprive persons of rights secured to all by
federal law; (2) to deprive persons of rights secured to all by
state law, where the deprivation interferes with the exercise of
a federally-protected right; and (3) to deprive persons of rights
secured only against governmental action (such as the right of free
speech), provided the defendants are either "state actors" or
seeking to influence the state to act in a prohibited way. In each
of these categories, the Seventh Circuit observed:

The plaintiff must locate a right independent
ly secured by state or federal law and then
show (if only state law is at issue) that the
offense deprives him of a right secured by a
federal male designed for the protection of
all.
Ibid.

And in derogation of the § 1985(3) claim in Stevens v. Tillman the
court emphasized that:

...Stevens does not contend that Tillman
violated any of her rights under state law
(such as the right to be free from assault)

for the purpose or with the effect of inducing
her to surrender or refrain from exercising
rights secured by federal law.

Where individuals acting under color of state law are charged
with a civil rights conspiracy in violation of § 1983, the Second
Circuit has noted that "a conspiracy allegation does not obviate
the necessity of proving 'an actual deprivation of a constitutional
right.'" Dean Tarrv Coro, v. Friedlander. 826 F .2d 210, 213 (2d
Cir. 1987), citing and guoting Villaneuva v. Mclnnis, 723 F.2d 414,
418 (5th Cir. 1984).

In Griffin v. Breckenridge. supra the Supreme Court specifi
cally cautioned "that [§ 1985(3)] was meant to reach private action
does not, however, mean that it was intended to apply to all
tortious conspiratorial interference with the rights of others."
The Court looked particularly to the legislative history rejecting
the notion "that Congress had a right to punish an assault and
battery when committed by two or more persons within a State." 403
U.S. at 101-02. The complaint in Griffin v. Breckenridge alleged
a racially motivated assault which the Court held fell within §
1985(3); but the complaint specifically alleged that the
conspirators' objectives were to deprive plaintiffs of their rights
to free speech, assembly, association, and movement. In particular
the complaint alleged that plaintiffs were driving their automobile
through a county on the Mississippi-Alabama border, and that the
conspirators wished to prevent plaintiffs from exercising their
rights to travel on such roads, inspired by the erroneous belief
that one of the plaintiffs was a worker for Black civil rights.

9
89

To sustain a § 1985(3) claim, the Court considered it necessary to
"identify a source of congressional power to reach the private
conspiracy alleged by the complaint in this case", id. at 104, and
located that power in the constitutionally protected right to
interstate travel. Id. at 105. Addressing the sufficiency of the
complaint, the court said:

Under these allegations it is open to the
petitioners to prove at trial that they had
been engaging in interstate travel or intended
to do so, that their federal right to travel
interstate was one of the rights meant to be
discriminatorily impaired by the conspiracy,
that the conspirators intended to drive out-
of-state civil rights workers from the State,
or that they meant to deter the petitioners
from associating with such persons. This and
other evidence could make it clear that the
petitioners had suffered from conduct that
Congress may reach under its power to protect
the right of interstate travel.

The complaint at bar contains no allegations implicating a
federally created or protected right.

Comparable inquiries are made, and federally protected rights
identified, in cases upon which plaintiffs at bar rely. In Fisher
v. Shamburo. 624 F.2d 156 (10th Cir. 1980), a racially inspired
assault took place outside a restaurant. Looking to the common
law, the earlier civil rights statutes, and the more recent Title
II of the Civil Rights Acts of 1964, the Tenth Circuit concluded
that Congress had "defined the racially motivated denial of one's
enjoyment of a place of public accommodation as a badge of
slavery." Id. at 160. In Hawk v. Perillo, supra, the court
divined in the complaint an allegation of violation of the right
of interstate travel, 642 F.Supp. at 387 (although I am bound to

say that, judging by the description of the facts in the opinion,
the district judge was stretching the concept).

The complaint at bar alleges an outrageous and dreadful
assault, perpetrated upon an innocent young man for racial reasons.
But I cannot discern in the complaint allegations that defendants'
conduct, clearly violative of the state law of assault and murder,
also offended a federal constitutional or statutory rule designed
for the protection of all. Cf. Stevens v. Tillman, supra. at 404
("A cross-burning (trespass and assault) by the Klan is an example
[of conduct reached by § 1985 (3)] to the extent the threat of
violence induces the targets to refrain from exercising federally-
assured rights, such as the rights to travel, to associate or
speak, and to vote."). By negative inference, in the absence of
a conspiratorial objective to violate a federally—assured right,
the action does not lie under § 1985(3) . None is alleged here, nor
reasonably could be.
Conclusion ■

In the area of private conduct, the limitations placed upon
the scope of § 1985(3) conspiracies also militate in favor of the
Third Circuit's analysis in Mahone. supra. limiting the scope of
§ 1981.

I conclude that the alleged conduct of these private persons,
however heinous, does not give rise to viable federal claims.
Whether the proper procedural ruling is to dismiss the action for
want of federal subject matter jurisdiction or to find a sufficient
invocation of jurisdiction and then dismiss the federal claims

under Rule 12(b)(6), F.R.Civ.P., the result is that the complaint
must be dismissed.1

The Clerk of the Court is directed to dismiss the federal
claims (the first, second, third, fourth, seventh, and eighth
causes of action) with prejudice, and to dismiss the pendent state
law claims (fifth and sixth causes of action) without prejudice.
United Mineworkers v. Gibbs. 383 U.S. 715, 726-27 (1966). No
costs.

It is SO ORDERED.

Dated: New York, New York
July 27, 1989

The complaint also invokes 42 U.S.C. § 1986. That does
not affect the result. No cause of action can arise
under § 1986 unless there is also a cause of action under
§ 1985, since § 1986 "merely gives a remedy for mis
prision of a violation of 42 U.S.C. § 1985."Williams v.
St. Joseph Hospital. 629 F.2d 448, 452 (7th Cir. 1980).

-■> (' «UNITED STATES DISTRICT COURT
SOUTHERN'DISTRICT OF NEW YORK

MRS ERNESTINE SPENCER, individually
as the mother of Samuel Benjamin
Spencer, III, deceased, and as Ad
ministratrix of the estate of Samuel
Benjamin Spencer, III, MR. SAMUEL
B. SPENCER, JR., father of Samuel
Benjamin Spencer, III, deceased,

Plaintiffs,
-against- ,

FRANK CASAVILLA,FRANK D'ANTONIO,
COSMO MURIALE, DOUGLAS MACKEY,
JOHN DOES,

Defendants.

JUDGE HAIGHT^ pH.ro

8 7 CIV f i t ,34 2,4 (jfS )

JUDGMENT

-------------------------------------------------------------------------------- --

Whereas the above entitled action having been assigned to the
Honorable Charles S. Haight, U.S.D.J., and the Court thereafter on
July 28, 1989, having handed down its memorandum opinion and order
(#64678), directing the Clerk of the Court to dismiss the federal
claims (the first, second, third, fourth, seventh, and eight causes
of action) with prejudice, and to dismiss the pendent state law claims
(fifth and sixth causes of action) without prejudice, it is,

ORDERED, ADJUDGED AND DECREED: That the first, second, third,

fourth, seventh, and eight causes of action be and they are hereby

dismissed with prejudice, and it is further,

ORDERED, That the fifth and sixth causes of action be and they

are hereby dismissed without prejudice, and it is,

ORDERED, That the complaint be and it is hereby dismissed.

DATED: NEW YORK, NEW YORK
JULY 31, 1989

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

CIVIL NO. 87 Civ 3424/CSH

MRS ERNESTINE SPENCER, etc.,
et al.,

PLAINTIFFS

FRANK CASAVILLA, etc., et al.,
DEFENDANTS

Now come the Plaintiffs herein, through their counsel
James I. Meyerson. 396 Broadway-Suite //601, New York, New York
10013 [212]226-3310, and hereby and herin Notice an Appeal
from the Memoranda and Opinions and Orders, dated July 27,
1989, dismissing the within action and, otherwise, denying
counsel leave to withdraw as attorney for the Plaintiffs upon
his prior application to do so; and the Judgment, dismissing
the action, which judgment is dated July 31, 1989.

The Appeal is from every and all aspects of the two
Memoranda and Opinions and Orders, dated July 27, 1989, and the
Judgment dismissing the proceedings, dated July 31, 1989.

NOTICE OF APPEAL
vs

/itt'-iwiiilaEadti:-;-

" v .

This Notice of Appeal and the prosecution thereof is
done pursuant to and under the direction by the District Court
in said respect and in light of the Court's ruling denying
the Plaintiff's counsel leave to withdraw as attorney for
the Plaintiffs and otherwise directing the prosecution of an
appeal and the filing of the Notice thereof as a predicate
thereto.

DATED: New York, New York
August 13, 1989

396 Broadway-Suite //601
New York, New York 10013
[212] 226-3310
ATTORNEY FOR PLAINTIFFS

BY:

- 2-

TO:

Deanna Daddiego
1345-66 Street
Brooklyn, New York 11219
Douglas Mackey
//88A8210
lC38/Cayuga Correctional Facility
Route // 38A
Box # 1182
Moravia, New York 13118
Frank Casavilla
#88A-2637
Great Meadow Correctional Facility
Post Office Box // 51
Comstock, New York 12821

Mr. Cosmo Muriale
#88A 4788
Attica Correctional Facility
Exchange Street
Post Office Box // 49
Attica, New York 14011
Ms. Lucy Casavilla
c/o Antonini
7 017 15th Avenue/ Apt. // 4-A
Brooklyn, New York 11228
Ms. M. Muriale
1304 67th Street
Brooklyn, New York 11219
Robert Ellis, Esq.
150 East 58th Street
New York, New York 10002
Mr. Frank D Antonio
6910 13th Avenue
Brooklyn, New York
Mr. and Mrs. Samuel Spencer
30 Prospect Street
Post Office Box // 1131
Yonkers, New York 10702

-3- 96

# CERTIFICATE OF SERVICE

James I. Meyerson, attorney for the Plaintiffs, does
hereby and herein certify that on the 14th day of August,
1989, I did serve a copy of the foregoing Notice of Appeal
with attachments on'the following by mailing the same, postage
prepaid, first class as follows: Deanna Daddiego, 1345-66
Street, Brooklyn, New York 11219; Douglas Mackey, # 88A8210/
1C38 Cayuga Correctional Facility/Route # 38A/Box # 1182, Moravia,
New York 13118; Frank Casavilla, # 88A-2637/Great Meadow Correc
tional Facility, Post Office Box # 51, Comstock, New York 12821;
Mr. Cosmo Muriale/#88A 4788/Attica Correctional Facility/Exchange
Street, Post Office Box // 49, Attica, New York 14011; Ms. Lucy
Casavilla c/o Antonini 7017 15th Avenue, Apt. // 4-A, Brooklyn,
New York 11228; Ms. M. Muriale, 1304 67th Street, Brooklyn,
New York 11219; Robert Ellis, Esq., 150 East 58th Street, New
York, New York 10002; Mr. Frank D Antonio, 6910 13th Avenue,
Brooklyn, New York; and Mr. and Mrs. Samuel Spencer, 30 Prospect
Street, Post Office Box # 1131, Yonkers, New York 10702.

DATED: New York, New York
August 13, 1989

JAMES I. MEYERSON
396 Broadway-Suite #601
New York, New York 10013
[212] 226-3310
ATTORNEY FOR PLAINTIFF
BY:

- 9 -

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