Adamian v. University of Nevada

• Citation: 359 F. Supp. 825
• Decision Date: 16 April 1973
• Docket Number: Civ. No. R-2530.
• Parties: Paul S. ADAMIAN, Plaintiff, v. The UNIVERSITY OF NEVADA et al., Defendants.
• Court: U.S. District Court — District of Nevada

359 F. Supp. 825

Paul S. ADAMIAN, Plaintiff, v. The UNIVERSITY OF NEVADA et al., Defendants.

Civ. No. R-2530.

United States District Court, D. Nevada.

April 16, 1973.

COPYRIGHT MATERIAL OMITTED

Charles E. Springer, Ltd., Reno, Nev., for plaintiff.

Thomas G. Bell, Deputy Atty. Gen., Las Vegas, Nev., for defendants.

MEMORANDUM OPINION

ROGER D. FOLEY, Chief Judge.

The plaintiff, a tenured professor of English of the University of Nevada, was discharged by action of the University's Board of Regents for attempting to stop a motorcade and for attempting to disrupt ceremonies of the Governor's review of ROTC activities, which ceremonies were conducted on the Reno campus of the University.

Plaintiff, alleging that jurisdiction exists under the Civil Rights Act, Title 28, U.S.C., § 1343, and Title 42, U.S.C., § 1983, brought this action against the University of Nevada, the Board of Regents of the University of Nevada, Dr. Louis E. Lombardi, Fred M. Anderson, Procter E. Hug, William W. Morris, Helen R. Thompson, James H. Bilbray, Archie C. Grant, Paul McDermott, Harold J. Jacobsen, Mel Steninger, Molly Knudtsen, and John Does I through VIII.

A. Parties Defendant

On December 23, 1971, Judge Philip C. Wilkins dismissed the action as to the University of Nevada and the defendant Board of Regents because these state agencies are not a "person" within the meaning of the Civil Rights Act, 42 U. S.C. § 1983. Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969). Judge Wilkins also dismissed the John Doe defendants. The Regents are being sued, both individually and in their representative capacities. Plaintiff seeks from this Court an order directing that plaintiff be reinstated with back pay and an award of damages for the violation of his civil rights. The Court is being asked to:

1. Order the members of the Board of Regents now in office, in their representative capacities, to reinstate the plaintiff and compensate him for loss of earnings.

2. Award the plaintiff damages for the violation of his civil rights against those Regents, in their individual capacities, then in office, responsible for his discharge.

Although the Board of Regents as a state agency is not a "person" within the Civil Rights Act, the Regents themselves are "persons" and can be sued both as individuals and in their representative capacities. The rule is explained in Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. den. 400 U.S. 991, 91 S.Ct. 451, 27 L.Ed.2d 439, where the Court said:

"Turning then to the officials, the trustees and the superintendent, it seems well settled that § 1983 authorizes a suit against them. Federal judicial power has long been invoked to compel state officials to discharge their constitutional duties. * * *

"In numerous cases since Monroe v. Pape, the Supreme Court has permitted relief under § 1983 against state officials sued as such, without mention of that case. * * *

"We find no prohibition in Monroe v. Pape against the exercise of federal judicial power through § 1983 to redress constitutional wrongs through requiring appropriate official acts by officials sued in their representative capacities. We therefore conclude that § 1983 includes school district trustees and school superintendents, acting in their representative as well as their individual capacities, within the meaning of `person' as the term is used in § 1983 for the purposes of the equitable relief sought here."

The Ninth Circuit lays down the same rule. In Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969), at page 30 the Court said:

"Individuals, sued in their capacity as trustees of a state agency, are not protected by the Eleventh Amendment any more than the agency itself is protected by that Amendment. Moreover, the allegations and prayer of plaintiff's complaint make it clear that this is not intended to be exclusively a suit against the State of Washington. Plaintiff seeks monetary damages and unspecified equitable relief against the personal defendants as individuals as well as in their capacities as president and trustees of the College or Attorney General of the state."

The rule is also followed in Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971), and Hayes v. Cape Henlopen School District, 341 F.Supp. 823 (D.C. Del.1972). It is not necessary for the plaintiff to amend the complaint to include the present members of the Board of Regents who are being sued in their representative capacities. The present Regents are already properly before this Court because the plaintiff has sued all of the Regents in their representative capacities. This is accomplished by F. R.Civ.P. 25(d)(1) which states in pertinent part:

"When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded."

The applicability of Rule 25(d)(1) to the instant case is explained in the Advisory Committee's Note of 1961 to Subdivision (d) found in 3B Moore's Federal Practice, Section 25.01(13):

"Thus the amended rule will apply to actions against officers to compel performance of official duties or to obtain judicial review of their orders. It will also apply to actions to prevent officers from . . . . enforcing unconstitutional enactments. . . . Excluded from the operation of the amended rule will be the relatively infrequent actions which are directed to securing money judgments against the named officers enforceable against their personal assets . . ."

Therefore, the Regents being sued in their representative capacities are those Regents who presently are members of the Board of Regents. Those Regents who are being sued in their individual capacities are those Regents who were members of the Board of Regents at the time of plaintiff's dismissal.

B. Overbreadth and Vagueness

The plaintiff has moved for partial summary judgment on the claim against the Regents in their representative capacities seeking reinstatement and back pay. The plaintiff argues that the University regulation upon which the Regents relied to terminate the plaintiff is unconstitutionally vague in violation of due process under the Fourteenth Amendment. Plaintiff further claims that because the regulation is unconstitutionally overbroad, as well as vague, it infringes upon his rights of free speech and assembly protected by the First Amendment, which by the Fourteenth Amendment is made applicable to the states.

The section of the University Code upon which the defendants based their determination to terminate the employment of the plaintiff was Chapter IV, Section 2.3, which reads as follows:

"The faculty member is a citizen, a member of a learned profession, and a representative of this University. When he speaks or writes as a citizen, he will be free from University censorship or discipline, but his special position in the community imposes special obligations. As a man of learning and as an educator, he knows that the public may judge his profession and this University by his utterances. At all times he strives to be accurate, to exercise appropriate restraint, to show respect for the opinions of others, and to make every effort to indicate that he is not a spokesman for this University."

The defendants admit that the University Code is given the effect of law in the State of Nevada. In State v. Board of Regents, 70 Nev. 144, 261 P.2d 515 (1953), the Nevada Supreme Court held:

"In our opinion this rule (university tenure regulations), having been duly established, has the force and effect of statute."

Therefore, in deciding the constitutionality of Section 2.3, the Court will not be concerned with the question whether disciplinary rules must meet the same vagueness and overbreadth criteria as statutes and ordinances. The instant case is distinguishable from cases like Sword v. Fox, 446 F.2d 1091 (4th Cir. 1971), which holds that the same specificity of language is not required for college disciplinary rules as is required for statutes. In the instant case, the section of the University Code under scrutiny has the effect of a statute.

For this challenge to the substantive constitutionality of the University Code section, whether or not the plaintiff received procedural due process and whether or not the plaintiff's conduct could conceivably be said to be proscribed by Section 2.3, is irrelevant. Although this Court does not reach the question, if it be assumed that the plaintiff's conduct was not constitutionally protected and such conduct could be prohibited by a properly drawn regulation, the plaintiff can nonetheless challenge the substantive constitutionality of the section under which he was terminated. As the Court stated in Soglin v. Kauffman, 418 F.2d 163 (7th Cir. 1969):

"Likewise, the nature of the conduct attributed to plaintiffs has no effect on their standing to challenge the application of the misconduct doctrine as the basis for the proceedings taken against them. They are entitled to contend that the disciplinary proceedings were invalid deprivations of due process because based upon nonexistent or unconstitutionally vague standards. It is well settled that a statute threatening the exercise of First Amendment freedoms because of overbreadth is subject to attack

`* * * with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093; NAACP v. Button, 371 U.S. 415, at 432-433, 83 S.Ct. 328 at 337-338, 9 L.Ed.2d 405; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517, 84 S.Ct. 1659, 1668-1669, 12 L.Ed.2d 992; United States v.

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