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AMANTO v. WITLIN

July 29, 1982

ROBERT A. AMANTO
v.
ANTHONY WITLIN, ESQUIRE, et al.



The opinion of the court was delivered by: GILES

 GILES, J.

 Robert Amanto seeks injunctive relief as well as compensatory and punitive damages for alleged violation of his civil rights under 42 U.S.C. § 1983. *fn1" He asserts that the defendants conspired to deprive him of due process during hearings held to determine his eligibility for disability benefits. Defendants are the Board of Pensions and Retirement of the City of Philadelphia, (the "Board"), the Board's executive director, Anthony Witlin, and members of the medical panel employed by the Board. Jurisdiction is alleged to exist by virtue of 28 U.S.C. § 1331 as a civil action arising under the Constitution of the United States, as well as 28 U.S.C. § 1343(3) and (4).

 Defendants have moved to dismiss plaintiff's complaint for failure to state a cause of action pursuant to Fed. R. Civ. Pro. 12(b) (6). For the reasons which follow, defendant's motion to dismiss shall be granted.

 In evaluating a motion to dismiss, the allegations of the complaint and all reasonable inferences that can be drawn from it must be accepted as true and viewed in the light most favorable to the non-moving party. Miree v. DeKalb County, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977); Kugler v. Helfant, 421 U.S. 117, 125 n.5, 44 L. Ed. 2d 15, 95 S. Ct. 1524 (1975); Empire Abrasive Equipment Corp. v. H.H. Watson, Inc., 567 F.2d 554, 557 (3d Cir. 1977).

 Amanto was employed as a Philadelphia policeman from December 1965 to December 1971 during which time he paid $3,108.00 into the pension fund managed by the Board. In August of 1970 plaintiff suffered a neck injury when his patrol car was involved in an accident. In December 1971, Amanto was dismissed from his job because of problems pertaining to his neck injury. *fn2"

 On April 15, 1981, Amanto applied for permanent disability benefits under the Philadelphia Retirement System Ordinance, (the "Ordinance"). *fn3" According to the applicable regulations, plaintiff filed his application with the Board, a medical panel appointed by the Board evaluated his claimed physical disability and submitted its findings and recommendations to the Board for decision. *fn4" Based upon the panel's recommendations, the Board denied Amanto's application for benefits.

 After the Board's unfavorable decision, Amanto requested an evidentiary hearing before the Board to present additional testimony and to cross-examine one of the Board's physicians in connection with his challenges to the first proceeding. The hearing was granted on the condition that he first undergo a psychiatric examination by a member of the medical panel. Amanto took exception to the requirement, maintaining that it was just further evidence of the conspiracy to deprive him of his benefits and refused to be examined. The Board deferred the hearing subject to his compliance. Amanto then brought his suit.

 To state a cause of action under 42 U.S.C. § 1983, a plaintiff must allege that the defendants acted under color of state law and that their conduct deprived him of some right or privilege protected by the Constitution of the United States. See Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 99 S. Ct. 2689 (1979); Phillips v. Trello, 502 F.2d 1000, 1004 (3d Cir. 1974). Here, Amanto contends that he has a protected property interest in the disability benefits.

 Plaintiff may indeed have a protected right to an impartial determination of his eligibility for benefits under the governing ordinance. *fn5" However, his due process property deprivation claims are premature because his application is still under review. Amanto has been granted the second or additional hearing he demanded. After that hearing, the medical panel will make a recommendation to the Board pursuant to section 112.2 of the Ordinance. Plaintiff's claims during the first proceeding may well be resolved or mooted as a result of the proposed hearing.

 Plaintiff asserts that he is not required to exhaust all state remedies before filing suit under section 1983. However, the issue of exhaustion does not have to be addressed because the question here is one of ripeness, not exhaustion. Amanto has been granted a hearing to review the Board's decision and his challenges to that decision. There must at least be some definitive administrative determination resulting in a denial or deprivation of due process before he can raise such a claim. Until there is a final decision which has practical impact on a litigant, it is not ripe for adjudication. Abbott Laboratories v. Gardner, 387 U.S. 136, 148-54, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967); United States ex rel. Ricketts v. Lightcap, 567 F.2d 1226, 1232 (3d Cir. 1977) (dictum) (usual ripeness standard applies in section 1983 cases). The basic rationale underlying the ripeness standard as articulated by the Supreme Court is to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott, 387 U.S. at 148-49.

 Plaintiff does not assert that the regulations themselves are violative of due process, nor does he assert that the Board is acting beyond its authority under the regulations by requiring a psychiatric examination. But for Amanto's refusal to comply with a valid request by ...


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