Barger v. State of Kan.

• Decision Date: 04 November 1985
• Docket Number: Civ. A. No. 85-4006.
• Citation: 620 F. Supp. 1432
• Parties: Janice Diane BARGER, Plaintiff, v. STATE OF KANSAS; Emporia State University; Dr. John E. Visser; Stephen F. Davis; Richard F. Ishler; and Kala M. Stroup, Defendants.
• Court: U.S. District Court — District of Kansas

620 F. Supp. 1432

Janice Diane BARGER, Plaintiff, v. STATE OF KANSAS; Emporia State University; Dr. John E. Visser; Stephen F. Davis; Richard F. Ishler; and Kala M. Stroup, Defendants.

Civ. A. No. 85-4006.

United States District Court, D. Kansas.

November 4, 1985.

Kenneth F. Crockett, Tilton, Dillon, Beck & Crockett, Topeka, Kan., for plaintiff.

Karen A. Nichols, Asst. Atty. Gen., Topeka, Kan., Robert D. Benham, McAnay, Van Cleave & Phillips, Kansas City, Kan., for defendants.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This case is before the court on defendants' motions to dismiss plaintiff's conspiracy claims arising under 42 U.S.C. § 1985; to dismiss plaintiff's claims against the State of Kansas and Emporia State University arising under 42 U.S.C. §§ 1983, 1985 and 1988; for summary judgment on all of plaintiff's claims against the individual defendants in their official and individual capacities; and for oral argument on said motions.

This is a sex discrimination action arising under 42 U.S.C. §§ 1983, 1985 and 1988 and Title VII of the Civil Rights Act of 1965, 42 U.S.C. § 2000e, et seq. Plaintiff seeks actual and punitive damages and attorney's fees against the State of Kansas and Emporia State University hereinafter ESU and the individual defendants, Dr. John Visser, Dr. Stephen Davis, Dr. Richard Ishler, and Dr. Kala Stroup, in both their official and individual capacities.

The uncontroverted material facts in this case are as follows. Plaintiff was employed at ESU as a temporary lecturer from August 1978 to May 1983. Plaintiff's temporary lecturer position was abolished on May 17, 1983. At all times pertinent to this action, defendant Dr. John Visser was President of Emporia State University, defendant Dr. Kala Stroup was Vice President for Academic Affairs and Dr. Richard Ishler was Dean of the School of Education. Defendant Dr. Stephen Davis became Chairperson of the Psychology Department at ESU on June 18, 1979, and continued in that position at all times relevant to this action.

I. Oral Argument.

Defendants have moved for oral argument on their motions for summary judgment and dismissal. Because the court does not believe that argument would be helpful in this case, defendants' motion shall be denied. See Rule 15(d), Rules of Practice of the United States District Court for the District of Kansas.

II. Dismissal.

The court may not dismiss plaintiff's complaint for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss, the factual allegations of the complaint must be accepted as true and all reasonable inferences must be made in favor of the plaintiff. Mitchell v. King, 537 F.2d 385, 386 (10th Cir.1976). Motions to dismiss are generally viewed with disfavor and are rarely granted. 5 Wright & Miller, Federal Practice and Procedure § 1357 at 598.

A. Claims Against the State of Kansas and Emporia State University Arising Under Sections 1983, 1985 and 1988.

Defendants State of Kansas and Emporia State University move for dismissal of plaintiff's claims arising under 42 U.S.C. §§ 1983, 1985 and 1988 on the ground that they are immune under the Eleventh Amendment. For the following reasons, defendants' motion will be granted.

It is well settled that the Eleventh Amendment, in the absence of consent, bars suit against the state or one of its agencies or departments in federal court. See, e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam). This bar applies regardless of the nature of the relief sought. Pennhurst, 465 U.S. at 100, 104 S.Ct. at 908; Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 21, 78 L.Ed. 145 (1933).

It is also well settled that universities established by the State of Kansas and governed by the Kansas Board of Regents share the state's Eleventh Amendment immunity. Brennan v. University of Kansas, 451 F.2d 1287, 1290-91 (10th Cir.1971); Billings v. Wichita State University, 557 F.Supp. 1348, 1350 (D.Kan.1983). Defendant Emporia State University is such a university,¹ and is therefore immune.

Plaintiff argues that the Kansas Legislature's enactment of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq., is evidence that the state has waived its immunity. This argument is totally without merit. K.S.A. 75-6118 expressly provides that the Kansas Tort Claims Act shall not be construed as a waiver of Eleventh Amendment immunity. This is also the past holding of this court. See Billings, 557 F.Supp. at 1351.

Plaintiff also argues that Congress intended to override the Eleventh Amendment grant of immunity by enacting the Civil Rights Act. This argument was expressly rejected by the Supreme Court in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Accordingly, it follows that plaintiff's sections 1983 and 1985 claims are barred by the Eleventh Amendment and must be dismissed.

It also follows that plaintiff's claims under section 1988 against the State and Emporia State University are barred. Section 1988 provides for the award of attorney's fees only to a "prevailing party" under sections 1981, 1983, 1985 or 1986. Because plaintiff is barred from suing the State and ESU because of immunity, plaintiff cannot be said to "prevail" for purposes of section 1988. Pitts v. Kansas Board of Dental Examiners, No. 84-4207 (D.Kan., unpublished, Jan. 17, 1985). Thus, plaintiff's claim against the State and ESU under section 1988 must also be dismissed.

B. Conspiracy Claims Arising Under 42 U.S.C. § 1985.

All defendants move for dismissal of plaintiff's section 1985 conspiracy claims for failure to state a claim upon which relief can be granted. Because we have concluded that the State of Kansas and Emporia State University are immune from suit, we will restrict our discussion of this issue to the conspiracy claims against the individual defendants.

Defendants first argue that no section 1985(3) conspiracy could have existed because the University and its officials constitute a single entity that cannot conspire with itself.² This argument is based on the general rule that agents of a corporation comprise one legal entity and therefore cannot conspire for purposes of section 1985(3). See, e.g., Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972). This court has applied this rule to government agents and employees acting in their official capacities. See Scott v. City of Overland Park, 595 F.Supp. 520, 527 (D.Kan. 1984). See also Davidson v. Yeshiva University, 555 F.Supp. 75, 79-80 (S.D.N.Y. 1982); Buntin v. Board of Trustees of Virginia Supplemental Retirement System, 548 F.Supp. 657, 660 (W.D.Va.1982); Zentgraf v. Texas A & M University, 492 F.Supp. 265, 272-73 (S.D.Tex.1980); Johnson v. Brelje, 482 F.Supp. 125, 130 (N.D.Ill. 1979). But see Jacobs v. Board of Regents, 473 F.Supp. 663, 670-71 (S.D.Fla. 1979); Jackson v. University of Pittsburgh, 405 F.Supp. 607, 612-13 (W.D.Pa. 1975).

We have refused to apply this rule, however, to government employees acting in their individual capacities. See Scott, 595 F.Supp. at 527; Rivas v. State Board for Community Colleges, 517 F.Supp. 467, 472 (D.Colo.1981); Edmonds v. Dillin, 485 F.Supp. 722, 729 (N.D.Ohio 1980). Thus, to the extent that plaintiff has alleged that defendants conspired in their official capacities, plaintiff has not stated a claim under section 1985(3).

With respect to plaintiff's conspiracy claims against the defendants in their individual capacities, defendants argue that plaintiff has failed to adequately plead any conspiracy. Defendants contend that plaintiff's complaint contains only conclusory allegations of conspiracy and pleads no facts showing the necessary agreement and concerted action. We concur.

In Griffin v. Breckenridge, 403 U.S. 88, 102-103, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971), the Supreme Court provided the following criteria for measuring whether a complaint states a cause of action under section 1985(3):

To come within the legislation a complaint must allege that the defendants did (1) "conspire or go in disguise on the highway or on the premises of another" (2) "for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." It must then assert that one or more of the conspirators (3) did, or caused to be done, "any act in furtherance of the object of the conspiracy," whereby another was (4a) "injured in his person or property" or (4b) "deprived of having and exercising any right or privilege of a citizen of the United States."

The Tenth Circuit has held that mere conclusory allegations of a conspiracy with no supporting factual averments are insufficient to state a claim under section 1985(3). See Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10th Cir.1983); Clulow v. State of Oklahoma, 700 F.2d 1291, 1303 (10th Cir.1983). To state a cause of action under section 1985(3), the pleadings "must specifically present facts tending to show agreement and concerted action." Sooner Products, 708 F.2d at 512 (citing Clulow, 700 F.2d at 1303). We find that plaintiff has alleged no facts tending to show any agreement or concerted action between the individual defendants in their individual capacities.

We note, however, that the Tenth Circuit has warned that "caution is advised in any pre-trial disposition of conspiracy allegations in civil rights actions." Clulow, 700 F.2d at 1303 (citing Fisher v. Shamburg, 624 F.2d 156, 162 (10th Cir.1980). We will therefore grant plaintiff leave to amend her complaint to plead specific facts, if any, showing an agreement or concerted action...