526 F.Supp. 129 (D.Ariz. 1981), Civ. 80-715, Meyerson v. State of Arizona

Docket Nº:Civ. 80-715
Citation:526 F.Supp. 129
Party Name:Meyerson v. State of Arizona
Case Date:October 28, 1981
Court:United States District Courts, 9th Circuit, District of Arizona

Page 129

526 F.Supp. 129 (D.Ariz. 1981)

Lee MEYERSON, Plaintiff,

v.

The STATE OF ARIZONA; Arizona Board of Regents; Ralph M. Bilby; Rudy E. Campbell; Esther N. Capin; Earl H. Carroll; Thomas Chandler; William G. Payne; William P. Reilly; Tio A. Tachias; Renee Marler; John Schwada; Paige E. Mulhollan; Karl H. Dannenfeldt; Joyce Foster; Guido Weigend; Austin Jones; Leonard D. Goodstein; Peter Killeen; John Does I through V; and Jane Does I through V, Defendants.

Civ. No. 80-715 Phx. WPC.

United States District Court, D. Arizona.

Oct. 28, 1981

Page 130

Charles D. Roush of Treon, Warnicke, Dann & Roush, Phoenix, Ariz., for plaintiff.

Stephen K. Smith, Phoenix, Ariz., for defendants.

MEMORANDUM AND ORDER

COPPLE, District Judge.

Plaintiff was hired as a psychology professor by Arizona State University in 1962. He is essentially totally deaf and suffers from a hip ailment resulting from a childhood disease. He filed a complaint on September 4, 1980, alleging that defendants had discriminated against him because of his handicap, in a variety of ways.

There are two claims at issue here. First, plaintiff claims that defendants, under color of state authority, deprived him of rights secured by federal law, in violation of 42 U.S.C. s 1983 (1976). Second, he claims that due to his handicap he was subjected to discrimination under a federal program or activity, in violation of s 504 of the Rehabilitation Act, 29 U.S.C. s 794 (Supp.1976-1980).

This Court previously held that to state a claim under s 1983, plaintiff must show that he has been deprived of a federally protected right, independent of s 1983. Meyerson v. State of Arizona, 507 F.Supp. 859, 864 (D.Ariz.1981). Plaintiff requests that this Court reconsider that decision. In addition, the parties have filed cross motions for summary judgment, regarding plaintiff's claim under s 504 of the Rehabilitation Act.

Initially, this Court reaffirms it's previous decision concerning the s 1983 claim. It is clear that s 1983 is purely a remedial statute; it provides no substantive rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1915-16, 60 L.Ed.2d 508 (1979). In order to have an action under s 1983 there must be a violation of a separate federal statute, and this statute must confer a federal right. See, Maine v. Thiboutot, 448 U.S. 1, 5, 8 n.6, 100 S.Ct. 2502, 2504...

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