Asher v. Harrington, 70-C-309.
Decision Date | 12 October 1970 |
Docket Number | No. 70-C-309.,70-C-309. |
Citation | 318 F. Supp. 82 |
Parties | James P. ASHER, Michael O. Bohren, Mary Claire Davies, Thomas R. Higdon, Roger Hlavek, George F. Kopecky, Jr., Thomas La Porte, Ronald Ranieri and Kristin S. Smith, on behalf of themselves and all others similarly situated, Plaintiffs, v. Fred Harvey HARRINGTON, J. Martin Klotsche, H. Edwin Young, and the Regents of the University of Wisconsin, Defendants. |
Court | U.S. District Court — Eastern District of Wisconsin |
Davis, Kuelthau, Vergeront & Stover, John P. Savage, Milwaukee, Wis., for plaintiffs.
Stafford, Rosenbaum, Rieser & Hansen, Ralph W. Bushnell, Madison, Wis., for defendants.
DECISION and ORDER
The defendants have moved to dismiss the complaint, urging that the court has no jurisdiction and that the complaint fails to state a cause of action. In their brief, the plaintiffs summarize their own complaint as charging the defendants with "failure to reasonably maintain the University in operation for the benefit of the majority of students".
The plaintiffs are students at the university; the defendants include the president of the university, the chancellors of the Madison and the Milwaukee campuses, and also the regents of the university.
In paragraph 11 of the first cause of action, the plaintiffs make the following allegations:
The second cause of action refers to certain regulations of the university ("Exhibit A") and then adds the following in paragraph 14 of the complaint:
"By causing, permitting to be caused and acquiescing in the continuation of the actions resulting as described in paragraph 11, above, one or more of the defendants and their agents acted in a manner directly contrary to the laws set forth in Exhibit A and so acted under color of law thereby denying plaintiffs the exercise of their rights and privileges and denying them equal protection of the laws without due process in violation of Amendment 14 of the Constitution of the United States."
The third cause of action sounds in contract. It alleges (paragraph 16) that the university "expressly or impliedly offered the following to plaintiffs in return for their payment of tuition and fees"; a list of academic services are then enumerated. It is also averred that "the defendants and their agents breached their agreement * * *" in certain respects which are described in paragraph 18; all of these items relate to the defendants' alleged failure to provide the plaintiffs with an opportunity to pursue their continued education.
It is my opinion that the first two causes of action fail adequately to state a civil rights claim and that there is no jurisdiction for the court to entertain the third cause of action.
On this motion to dismiss, the court must determine whether the first two causes of action qualify as civil rights complaints. I am persuaded that the first and second causes of action do not sufficiently allege facts to show that rights and privileges secured to the plaintiffs by the first and fourteenth amendments and enforced by § 1983 have been denied to the plaintiffs by the defendants.
Paragraphs 9 and 11 of the complaint contain the assertion that the defendants' actions "discriminatorily deprived plaintiffs of their rights of free speech, free inquiry, free thought and free assembly", but such charge is a mere conclusion. There is no logical nexus between the conclusion and the statement of facts set forth in the first cause of action. Similarly, in the second cause of action, the plaintiffs conclude in paragraph 14 that they were denied equal...
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...lie where no nexus exists between the facts alleged and the deprivation of constitutionally protected rights claimed. Asher v. Harrington, 318 F.Supp. 82, 84 (E.D.Wis.1970), aff'd, 461 F.2d 890 (7th Cir. 1972). Plaintiff does not attack any state statute or regulation, either on its face or......
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...a non-diversity case by mere conclusory allegations that one's constitutional or civil rights had been violated.'" In Asher v. Harrington, 318 F. Supp. 82 (E.D.Wis.1970), the court also noted the requirement that a civil rights complaint be specific in its factual assertions. The court of a......
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Asher v. Harrington
...a deprivation of the plaintiffs' civil rights, and was rejected by the district court which dismissed the complaint. Asher v. Harrington, 318 F. Supp. 82 (E.D.Wis.1970). Plaintiffs filed a motion for leave to amend the complaint under Rule 60(b), Fed.R.Civ. P. Before the district court rule......
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...U.S. 861, 90 S.Ct. 133, 24 L.Ed.2d 114 (1969), rehearing denied, 396 U.S. 950, 90 S.Ct. 377, 24 L. Ed.2d 256 (1969); Asher v. Harrington, 318 F.Supp. 82 (E.D.Wis.1970). For this reason, the complaint must be dismissed as to these two defendants. Much of the same reasoning may be applied, as......