454 F.2d 271 - Carr v. Sharp — 454 F.2d 271

¶1James J. Carr, pro se.

¶2John Van Dalen, Deputy Atty. Gen., Division of Law, Trenton, N. J. (George F. Kugler, Jr., Atty. Gen. of New Jersey, Trenton, N. J., Stephen Skillman, Asst. Atty. Gen., of counsel; David S. Litwin, Deputy Atty. Gen., on the brief), for ap-pellee Thelma Parkinson Sharp.

¶3Before VAN DUSEN and JAMES ROSEN, Circuit Judges, and BECKER, District Judge.

¶4OPINION OF THE COURT

¶5PER CURIAM:

¶6Petitioner Carr was a senior inhalation therapist at Roosevelt Hospital, Fords, New Jersey. On August 5, 1966, he was dismissed for insubordination to the Superintendent-Medical Director of the *272hospital.1 His dismissal was subsequently sustained by the Civil Service Commission of the State of New Jersey and the Appellate Division of the New Jersey Superior Court. Petitioner then filed a complaint in the United States District Court, alleging that his dismissal violated his constitutional rights. Judge Cool-ahan of the District Court dismissed his complaint, by an order dated Setpember 28, 1970, for failure to state a claim for which relief could be granted under 42 U.S.C. § 1983 and § 1985. This appeal followed.

¶7Petitioner now alleges a wide variety of injustices,2 but the thrust of his complaint is that the discharge violated the Due Process Clause of the Fourteenth Amendment and the Civil Rights Act, 42 U.S.C. § 1983 and § 1985.

¶8Because he is proceeding pro se, we construe his complaint in the way most favorable to him.3 Nonetheless, after resolving all ambiguities in favor of Mr. Carr, we find that his claims lack factual support. His due process claim fails because shortcomings, if any, of his hearing before the Hospital Board were remedied by the hearing de novo before the New Jersey Civil Service Commission 4 and review by that State’s Appellate Division.5 The petitioner was represented by retained counsel on both occasions.

¶9 *273The civil right allegations are unsupported by any substantial facts.6 The conclusory complaint was properly dismissed by the District Court for failure to state a claim for which relief can be granted. Oliver v. Governor of State of Pennsylvania, 442 F.2d 1347 (3d Cir. 1971); Gaito v. Ellenbogen, 425 F.2d 845 (3d Cir. 1970); Goslee v. Crawford, 411 F.2d 1200 (3d Cir. 1969); Negrich v. Hohn, 379 F.2d 213 (3d Cir. 1967); United States ex rel. Hoge v. Bolsinger, 311 F.2d 215 (3d Cir. 1962), F.R.Civ.P. 8(a).

¶10The judgment will be affirmed.

¶14. After hearing the testimony of Mr. Carr, his three witnesses, and the four witnesses produced by the defendants, the Commission found (1) that Mr. Carr had been “insubordinate” to the Superintendent-Medical Director “when he refused to comply with clear and appropriate instructions” to him and (2) that his refusal “endangered the health and welfare of an acutely ill patient.” From these facts, the Commission concluded:

“Mr. Carr’s conduct amply justified his dismissal. No hospital, charged with the health and welfare of its patients, can tolerate the insubordinate acts of a technician who challenges the judgment of one of the hospital’s leading physicians. The technician and nurse have a very significant role in the hospital’s operation. But the expertise of the medical doctor cannot be defied without endangering the life of the patient.

“It is the further conclusion of this Hearer from observation of Mr. Carr that he remains convinced to this date that his conduct was proper. And if given the opportunity, he would repeat his defiant conduct.”

¶15The Commission affirmed the Hospital’s dismissal of Mr. Carr.

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