606 F.Supp. 239 (S.D.Ohio 1985), C-2-84-1534, Tyus v. Ohio Dept. of Youth Services

Docket Nº:C-2-84-1534.
Citation:606 F.Supp. 239
Party Name:Paul A. TYUS, Plaintiff, v. OHIO DEPARTMENT OF YOUTH SERVICES, James E. Rogers, William Demidovich, Richard Celeste, Larry McCartney and Brenda Shoemaker, Defendants.
Case Date:March 04, 1985
Court:United States District Courts, 6th Circuit, Southern District of Ohio

Page 239

606 F.Supp. 239 (S.D.Ohio 1985)

Paul A. TYUS, Plaintiff,

v.

OHIO DEPARTMENT OF YOUTH SERVICES, James E. Rogers, William Demidovich, Richard Celeste, Larry McCartney and Brenda Shoemaker, Defendants.

No. C-2-84-1534.

United States District Court, S.D. Ohio, Eastern Division.

March 4, 1985

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[Copyrighted Material Omitted]

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Jeffrey M. Silverstein, Dayton, Ohio, for plaintiff.

Jeffrey J. Jurca, Deborah Piperni, Asst. Attys. Gen., Columbus, Ohio, for defendants.

MEMORANDUM AND ORDER

DUNCAN, District Judge.

This is an action for damages and injunctive relief brought by plaintiff Paul Tyus, a former employee of the Ohio Department of Youth Services ("ODYS"). Defendants in this case, Governor Richard Celeste, his assistants Larry McCartney and Brenda Shoemaker, ODYS, ODYS Director James Rogers, and ODYS Personnel Administrator William Demidovich, are being sued in both their individual and official capacities. Plaintiff alleges that because he suffers from epilepsy, he was terminated from his employment at ODYS in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"), his Fourteenth Amendment rights of due process and equal protection as guaranteed by the United States Constitution, and his federal civil rights. The complaint further charges that defendants' discriminatory discharge of plaintiff renders them liable under state law for the tort of intentional infliction of emotional distress. Jurisdiction of this Court is invoked under 28 U.S.C. § 1331, 29 U.S.C. § 794, 42 U.S.C. §§ 1983, 1985, 1986 and 1988, and pendant jurisdiction. Plaintiff requests an order finding that defendants have discriminated against him on the basis of his handicap, and awarding him reinstatement and back pay, compensatory and punitive damages, and attorney's fees.

Currently before the Court is a motion by defendants Celeste, McCartney and Shoemaker to dismiss the complaint for failure to state a claim upon which relief can be granted, and a motion by defendants ODYS Rogers and Demidovich to dismiss for failure to state a claim and for lack of subject matter jurisdiction. Plaintiff has filed a memorandum contra both motions to dismiss.

I. Immunity

It is well established that, in the absence of consent, a suit brought in federal court in which a state or one of its departments or agencies is named as the defendant is proscribed by the Eleventh Amendment to the United States Constitution, and that this jurisdictional bar applies regardless of the nature of the relief sought. Pennhurst State School v. Halderman, 465 U.S. 89, ----, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984). As an instrumentality of the State of Ohio, therefore, defendant ODYS is immune from suit in this Court, absent consent, and its motion to dismiss is hereby GRANTED.

The Eleventh Amendment also bars suits in federal court against state officials when the state is the real, substantial party in interest. Id.; Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945).

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The general rule is that relief sought nominally against an officer is in fact against the sovereign if the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration, or if the effect of the judgment would be to restrain the state from acting, or compel it to act. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). It is clear that plaintiff's requests for back pay and reinstatement are requests for relief against the state itself; only plaintiff's request for damages from the individual defendants in their individual capacities would fall outside the scope of the general rule barring suits when the state is the real party in interest.

There is, however, a narrow but important exception to a state's Eleventh Amendment sovereign immunity. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court held that the Eleventh Amendment did not bar a suit alleging that state officials had acted contrary to the United States Constitution. The Young exception to sovereign immunity has been narrowly construed. It is limited to allegations that state officials violated federal rather than state law. Pennhurst, 104 S.Ct. at 900; Lee v. Western Reserve, 747 F.2d 1062, 1066 (6th Cir.1984). It is also limited to the award of prospective injunctive relief. Retroactive relief and damages are barred under the Eleventh Amendment. Pennhurst, 104 S.Ct. at 907-911; Edelman v. Jordan, 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974). The Supreme Court, however, has upheld prospective injunctive relief even where it had a great impact on state treasuries. Edelman, 415 U.S. at 668, 94 S.Ct. at 1358; Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Lee, 747 F.2d at 1066. Therefore, in the case at bar, the Court believes that the Eleventh Amendment, under the Young doctrine, does not bar plaintiff from bringing suit in federal court in order to obtain prospective injunctive relief, such as reinstatement, from alleged federal constitutional and statutory violations by state officials. In summary, defendants' defense of Eleventh Amendment immunity is not applicable to plaintiff's constitutional, federal statutory and state claims against defendants, in their individual capacities, for damages; nor is it applicable to plaintiff's constitutional and federal statutory claims against defendants in their official capacities for prospective injunctive relief. The remaining defendants' motion to dismiss plaintiff's claim for back pay is hereby GRANTED.

Defendants claim that they are shielded from suit in this case by the doctrine of "qualified immunity." The Supreme Court has stated that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).

Based on the present record, the Court cannot conclude that, as a matter of law, defendants' conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

II. Exhaustion of Remedies

Citing Smith v. U.S. Postal Service, 742 F.2d 257 (6th Cir.1984), defendants contend that plaintiff must exhaust his administrative remedies prior to bringing suit in federal court for allegations of employment discrimination under the Rehabilitation Act, and that plaintiff has not done so. Plaintiff rebuts that he has, in fact, exhausted his administrative remedies and requests the Court's leave to amend his complaint to so state. Plaintiff's request to amend his complaint is GRANTED. The amended complaint shall be filed within twenty (20) days of the date of this order. Defendants' motion to dismiss for plaintiff's failure to exhaust his administrative remedies is DENIED without prejudice to resurrection of

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the motion after plaintiff has amended his complaint.

III. 42 U.S.C. § 1983

In Count II of his complaint plaintiff claims, presumably pursuant to 42 U.S.C. § 1983, that defendants have violated his rights of due process and equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution.

Defendants contend that plaintiff's allegations of employment discrimination due to handicap do not state a claim for relief under 42 U.S.C. § 1983 because Congress created a private right of action for handicap discrimination cases under § 504 of the Rehabilitation Act. 29 U.S.C. § 794.

29 U.S.C. § 794 provides in pertinent part:

No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service ...

29 U.S.C. § 794a(a)(1) and (2) establish an express private right of action for the intended beneficiaries of § 794. Smith, 742 F.2d 257 (6th Cir.1984).

Directing the Court's attention to Middlesex County Sewage Authority v. National Sea Clammers Assoc., 453 U.S. 1, 19-21, 101 S.Ct. 2615, 2625-6, 69 L.Ed.2d 435 (1981) and Miener v. Special School Dist. of St. Louis County, 580 F.Supp. 562, 568 (E.D.Mo.1984), defendants state that the existence of an adequate federal statutory remedy for handicap discrimination demonstrates an intent by Congress to preclude such a remedy under 42 U.S.C. § 1983.

Title 42 U.S.C. § 1983 states in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that the term "laws," as used in § 1983, includes federal statutes. Therefore, Thiboutot sanctioned the use of § 1983 to bring an action in federal court for violations of federal statutes under color of state law. The Court, however, has recognized two exceptions to the application of § 1983 to statutory violations: (1) when Congress forecloses a § 1983 remedy in the underlying act, and (2) when the statute at issue does not create "rights, privileges, or immunities" within the...

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