537 F.2d 248 (7th Cir. 1976), 75-1010, Hill v. Trustees of Indiana University

Docket Nº:75-1010.
Citation:537 F.2d 248
Party Name:Joseph E. HILL, Plaintiff-Appellant, v. TRUSTEES OF INDIANA UNIVERSITY et al., Defendants-Appellees.
Case Date:April 05, 1976
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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537 F.2d 248 (7th Cir. 1976)

Joseph E. HILL, Plaintiff-Appellant,

v.

TRUSTEES OF INDIANA UNIVERSITY et al., Defendants-Appellees.

No. 75-1010.

United States Court of Appeals, Seventh Circuit

April 5, 1976

Argued Sept. 24, 1975.

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[Copyrighted Material Omitted]

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Lawrence O. Sells, Indianapolis, Ind., for plaintiff-appellant.

John T. Hume, III, Stephen W. Terry, Jr., Indianapolis, Ind., for defendants-appellees.

Before STEVENS, Circuit Justice, [*] SWYGERT, Circuit Judge, and KUNZIG, Judge. [**]

SWYGERT, Circuit Judge.

This appeal arises from the district court's dismissal of a civil rights complaint seeking declaratory, injunctive, and compensatory relief in excess of $10,000 for the alleged deprivation of plaintiff's Fourteenth Amendment due process rights. Named as defendants in the complaint are the Trustees of Indiana University, in their official and individual capacities, and Dr. Maurice A. Garnier, a professor at Indiana University. Plaintiff based his claim of deprivation of a constitutional right on 42 U.S.C. § 1983 and the Fourteenth Amendment, alleging jurisdiction under 28 U.S.C. §§ 1343(3)(4) and 1331.

Plaintiff is a former graduate student of Indiana University who claims that his due process rights were violated when he received failing grades in two courses taught by defendant Garnier. In a letter dated May 14, 1970 Professor Garnier informed plaintiff that the basis for his failing grades was a determination that plaintiff had committed plagiarism. Professor Garnier's letter also notified plaintiff that pursuant to his instructions and in accordance with the Faculty Handbook, copies of the letter were being transmitted to the Dean of the Graduate School and a faculty member in the Department of Political Science.

Approximately two months after the May 14, 1970 plagiarism charge plaintiff was advised by the Associate Dean of the University's Graduate School that although an ad hoc review committee had been appointed to investigate the plagiarism charge, as was the Graduate School's usual procedure for handling contested claims of student misconduct, the Associate Dean had just discovered that the Student Code of Conduct, adopted by the Indiana University Board of Trustees and made effective September 9, 1969, prescribed a different procedure for issues of plagiarism and that a dean's review committee was no longer appropriate. 1 In light of this discovery, the Associate Dean informed plaintiff that any further consequence of Professor Garnier's plagiarism charge and/or plaintiff's failing grades would be held in abeyance until Professor Garnier returned to the university in the fall and provided plaintiff with an opportunity to exercise the procedures set forth in the Student Code of Conduct.

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For reasons not apparent from the record, plaintiff did not avail himself of the university's administrative procedure in order to challenge the plagiarism charge. 2 Nor did plaintiff continue at Indiana University in the fall of 1970. Rather, plaintiff sought judicial relief in the federal district court claiming that receipt of these failing grades and his withdrawal from courses at Indiana University caused him to suffer a penalty without prior notice and an opportunity to be heard in violation of the Fourteenth Amendment and section 3.2(3) of the Student Code of Conduct.

In response to plaintiff's complaint, defendants filed a motion to dismiss accompanied by a supporting brief and affidavit. Defendants argued that the district court lacked jurisdiction over the Board of Trustees since the board was not a "person" within the meaning of 42 U.S.C. § 1983; that the complaint failed to allege any facts to support a claim upon which relief could be granted against the trustees as individuals; that Indiana's two-year statute of limitations for character injury barred any action against all defendants except the board who had waived the defense; and various other grounds supporting defendants' claim that plaintiff's complaint should be dismissed pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

Having afforded the parties an opportunity to brief the issues raised in defendants' motion to dismiss, the district court entered an order dismissing plaintiff's complaint on October 2, 1974. The complaint was not dismissed with prejudice, however, until fifteen days after issuance of the order. This appeal followed.

In his brief on appeal plaintiff argues that the district court erred not only in dismissing the complaint as to each of the defendants but also in considering an affidavit in support of defendants' motion to dismiss. Addressing this latter argument, we note that the trial judge freely admitted that he based parts of his ruling on facts contained in the affidavit submitted by defense attorney Alvin R. York. If defendants' motion was solely a motion to dismiss, plaintiff's contention would have merit. Courts are restricted to an analysis of the complaint when evaluating a motion to dismiss. Grand Opera Co. v. Twentieth Century-Fox Film Corp., 235 F.2d 303 (7th Cir. 1956). However, the rules of civil procedure deal with the situation where a motion to dismiss for failure to state a claim for relief is accompanied by affidavits. A court may treat such a motion as one for summary judgment and consider all affidavits submitted. Fed.R.Civ.P. 12(b).

Moreover, plaintiff was well aware of the nature of defendants' motion. In his September 4, 1974 "brief in opposition" plaintiff stated: "defendants' motion to dismiss appears to be both a motion to dismiss and a motion for summary judgment although not entitled as such." The trial judge's use of the affidavit was proper under the rules of civil procedure. Plaintiff was aware of the thrust of defendants' motion and not prejudiced by any use of the affidavit. The lack of prejudice is especially clear in light of the district court's effort to provide plaintiff with an opportunity to file additional papers (counter-affidavits) prior to dismissing the action with prejudice. Therefore, we find no error in the district court's consideration of the contents of the affidavit in ruling on the motion to dismiss.

Turning to the remaining arguments raised by plaintiff in his brief and those raised for the first time at oral argument, we recognize that these arguments concern significant legal issues in the area of civil rights litigation. However, because we find that plaintiff's complaint fails to state a substantive claim against any one of the defendants upon which relief can be granted

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under either 42 U.S.C. § 1983 or the Fourteenth Amendment, we need not consider these questions.

Plaintiff claims that the receipt of failing grades as a penalty for plagiarism without any prior hearing or opportunity to present his defense constitutes a denial of due process. Assuming that the imposition of failing grades as a penalty for plagiarism gives rise to a "property" or "liberty" interest protected by the Fourteenth Amendment, we must decide whether plaintiff has alleged facts which, if proven, would demonstrate that he was deprived of this interest without due process of law.

The fact that Professor Garnier did not comply with section 3.2(3) of the Student Code of Conduct when he gave plaintiff failing grades does not, in itself, constitute a violation of the Fourteenth Amendment. Nor does the single fact that Indiana University adopted a grievance procedure which provides for a hearing before a plagiarism penalty may be imposed require a court to find that the procedure afforded plaintiff in the present case violated his right to due process. As the Supreme Court stated in Mitchell v. W. T. Grant Co., 416 U.S. 600, 610, 94 S.Ct. 1895, 1901, 40 L.Ed.2d 406, 415 (1974), "(d)ue process of law guarantees 'no particular form of procedure...

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