660 F.2d 1345 (9th Cir. 1981), 80-5005, Rutledge v. Arizona Bd. of Regents

Docket Nº:80-5005, 80-5130.
Citation:660 F.2d 1345
Party Name:Kevin RUTLEDGE, Plaintiff-Appellant, v. ARIZONA BOARD OF REGENTS, Arizona State University, Frank Kush, William Maskill, Fred L. Miller, Defendants-Appellees. Kevin RUTLEDGE, Plaintiff-Appellant, v. ARIZONA BOARD OF REGENTS, Arizona State University, Frank Kush, William Maskill, Fred L. Miller, and Gary Horton, Defendants-Appellees.
Case Date:November 12, 1981
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1345

660 F.2d 1345 (9th Cir. 1981)

Kevin RUTLEDGE, Plaintiff-Appellant,


ARIZONA BOARD OF REGENTS, Arizona State University, Frank

Kush, William Maskill, Fred L. Miller,


Kevin RUTLEDGE, Plaintiff-Appellant,


ARIZONA BOARD OF REGENTS, Arizona State University, Frank

Kush, William Maskill, Fred L. Miller, and Gary

Horton, Defendants-Appellees.

Nos. 80-5005, 80-5130.

United States Court of Appeals, Ninth Circuit

November 12, 1981

Argued and Submitted June 11, 1981.

Page 1346

Robert Ong Hing, Stockton & Hing, Phoenix, Ariz., for plaintiff-appellant.

J. Ruth Sproull, Phoenix, Ariz., argued for defendants-appellees; Michael L. Gallagher, Phoenix, Ariz., on brief.

Appeal from the United States District Court for the District of Arizona.

Page 1347

Before GOODWIN and SNEED, Circuit Judges, and HALBERT [*], District judge.

SNEED, Circuit Judge:

Appellant's first amended complaint and action were dismissed by the district court on the grounds, first, that the action was barred by the Eleventh Amendment and, second, that the complaint did not allege a violation of appellant's civil rights. Also, costs were taxed against appellant by the district court. Appellant appealed both the dismissal and the order with respect to costs. The appeals were consolidated.

We affirm the dismissal of the complaint and action as alleged in Count Four and a portion of Counts Three and Five. We reverse and remand with respect to Counts One and Two, a portion of Count Three and that portion of Count Five that alleges a claim under the first part (that portion preceding the semicolon) of 42 U.S.C. § 1985(2). We also reverse and remand the order taxing costs against the appellant.

Our jurisdiction rests on 28 U.S.C. § 1291.



Appellant in his first amended complaint describes his success as a football player in high school and his recruitment by several colleges and universities, including Arizona State University (A.S.U.), acting through its football coach, the defendant, Frank Kush. Appellant chose to attend Arizona State University in the fall of 1977 on condition that he receive a football scholarship commencing the second semester of his first year. Appellant alleges that he performed successfully as a football player during the 1977 football season and that he obtained his athletic scholarship in the second semester of the 1977-78 academic year.

According to appellant's complaint, his troubles commenced shortly after the end of the 1977 football season when he received injuries to his face and chest as the result of an automobile accident. A chest infection resulted which impaired his ability to perform during the spring football practice and the fall training camp. Appellant was demoted from first string defensive back to the last string by the time the training camp closed, although he remained the starting punter.

Appellant signed a scholarship contract in the fall of 1978 and thereafter requested that he be permitted to sit out the 1978 season but to continue to practice with the team, a status known as "red-shirting." Appellant alleges appellee Kush consented to "red-shirt" him during the 1978 season. Appellant watched the opening game of the season from the stands, but during the following week's practice he was told by appellee Maskill that he had not been "red-shirted" and Kush called him a liar for saying that he had been. Thereafter appellant was considered by Kush as a full member of the squad. Appellant alleges that he continued to be underweight and weak as a result of the chest infection and that neither Kush nor Maskill attempted to determine the cause of his condition.

On October 28, 1978, during the University of Washington game and after what Kush thought was a poor punt, appellant alleges that Kush took appellant's helmeted head between his two hands, shook his head from side to side, yelled obscenities at him, and then struck him with a fist in the mouth. Thereafter, Kush held appellant up to public ridicule and did not permit appellant to punt in a game for the rest of the season. Kush, appellant also alleges, recruited and offered a full scholarship to a new punter.

Appellant rid himself of his infection during early 1979 and immediately his weight and strength improved. Upon reporting to spring training, however, he was told by Maskill that he should quit the team and transfer to another school. Also, he was not permitted to scrimmage or play in exhibition games. Kush and Maskill employed

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scorn and ridicule in an attempt to get appellant to quit the team and transfer to another school, thereby forsaking his scholarship. The appellees "refused to consent to plaintiff's (appellant's) transfer, making plaintiff ineligible for financial aid (by the transferee school) for one year under NCAA rules." First Amended Complaint, P 28. These rules also provide that "institutional aid may not be gradated or canceled (sic) during the period of its award on the basis of (i) a student-athlete's ability or his contribution to a team's success, (ii) because of an injury which prevents the recipient from participating in athletics or (iii) for any other athletic reason." First Amended Complaint P 27. In addition, under the Constitution and By-Laws of the National Collegiate Athletic Association (NCAA) "plaintiff, once having been granted an athletic scholarship at ASU could have that scholarship revoked only for good cause, and only after a proper hearing, if so requested."

Appellant alleges he was "forced to leave A.S.U." and "transfer to the University of Nevada at Las Vegas, without a scholarship." Id. at P 28. This required appellant to be red-shirted without a scholarship his first year at Nevada and to extend his stay in school by a semester in order to complete his football eligibility.

The complaint, after reciting the above allegations, contains five counts. Count One charges Kush with all the allegations applicable to him and asserts that Kush conspired with his assistant coaches, including Maskill, to deprive appellant of his scholarship and his rights to a hearing under NCAA rules by means of "a pattern of harassment, embarrassment, defamation, and intentional infliction of mental distress" in order to obtain the opportunity to give appellant's scholarship to another. This deprived appellant of an advantageous business and educational relationship with A.S.U. Appellant alleged actual damages in the amount of $100,000, and also requested an award of punitive damages.

Count Two was directed at Maskill. It charged him with conspiring with Kush to induce appellant to give up his scholarship and transfer to another school.

Count Three incorporates all the preceding allegations and is directed at the Board of Regents of Arizona State University and athletic director Fred L. Miller, who, it is alleged, are vicariously liable for the acts of Kush and Maskill and also are liable because of their failure to supervise Kush and Maskill adequately. A prayer for compensatory damages is included in the count.

Count Four, after incorporating all the foregoing, alleges that Kush and Maskill acted under color of state law and deprived appellant of rights, privileges, and immunities under the Constitution and thereby are in violation of 42 U.S.C. § 1983. The count contains prayers for compensatory and punitive damages, attorney's fees, costs, and interest on the judgment until paid.

Count Five, again incorporating all preceding allegations, charges Kush, Miller, and one Horton, another A.S.U. assistant football coach, of conspiring to obstruct justice by intimidating material witnesses and encouraging others to deter appellant from enforcing his legal rights. In this manner, appellant, it is alleged, was deprived of equal protection of the laws and of his privileges and immunities in violation of 42 U.S.C. § 1983 and § 1985(2).

Jurisdiction in the district court was alleged to be based on diversity of citizenship, 28 U.S.C. § 1332, the deprivation of civil rights, 28 U.S.C. § 1343, and the existence of a federal question, 28 U.S.C. § 1331. The required jurisdictional amount was properly alleged.

We shall consider initially the scope of the bar of the Eleventh Amendment as it relates to each of the counts of the complaint. Thereafter, we shall consider briefly the manner in which the appellant's claim based on Arizona law, jurisdiction with respect to which is based on diversity of citizenship, may be affected by the principles of res judicata and collateral estoppel. Finally, we shall consider the appellant's civil rights allegations.

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The district court held that the appellant had established diversity jurisdiction in that at the time the action was commenced appellant was a citizen of Nevada while the appellees were citizens of Arizona. We affirm that holding.

The appellees contend, however, that the Eleventh Amendment deprived the district court of jurisdiction with respect to each count of the appellant's first amended complaint. The district court agreed with this contention. We hold that the immunity of the Eleventh Amendment extends only to the Arizona Board of Regents and Arizona State University. We also hold that appellee Miller is entitled to partial immunity. Appellees Kush, Maskill, and Horton, on the other hand, are not entitled to assert to any extent the immunity of the Eleventh Amendment to deprive the district court of jurisdiction.

Our analysis commences with Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)...

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