Biby v. Board of Regents of University of Neb.

Decision Date20 October 2004
Docket NumberNo. 4:03CV3206.,4:03CV3206.
Citation340 F.Supp.2d 1031
PartiesGerald BIBY, Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA AT LINCOLN, Darrell W. Nelson, Donald Helmuth, Richard Wood, Ken Cauble, and John Does 1-8 in Their Individual Capacities, Defendants.
CourtU.S. District Court — District of Nebraska

Mary C. Gaines, Ballew, Schneider Law Firm, Lincoln, NE, for Plaintiff.

Terry C. Dougherty, Woods, Aitken Law Firm, John C. Wiltse, University of Nebraska, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

BATAILLON, District Judge.

INTRODUCTION

Before the court is defendants' second motion for summary judgment, Filing No. 81.1 The motion is supported by briefs, Filing Nos. 83 and 89, and indices of evidence, Filing Nos. 84 and 90. Plaintiff's second amended complaint alleges nine claims2 against the University of Nebraska at Lincoln (the "University") and Darrell Nelson, Donald Helmuth, Richard Wood, Ken Cauble and Does 1-8 in their individual and official capacities, Filing No. 49.

On December 12, 2003, upon plaintiff's motion, the court dismissed claims one through five against the University and the individual defendants in their official capacities, Filing No. 30. Defendants Nelson and Helmuth filed a motion for summary judgment, Filing No. 17, seeking dismissal of claims one through five against them in their individual capacities on the basis of qualified immunity. In my Memorandum and Order dated September 29, 2004, I granted defendants' motion as to claims one, three, four, and five, but denied the motion as to claim two, Filing No. 110. Therefore, as of September 29, 2004, the remaining claims were claim two against defendants in their individual capacities and claims six through nine against both the University and the defendants in both their individual and official capacities.

In their second motion for summary judgment filed June 25, 2004, Filing No. 81, defendants now seek (1) dismissal of claims one through five against defendant Wood in his individual capacity on the basis of qualified immunity,3 and (2) dismissal of claims six through nine, which are purely state law claims, against both the University and the individual defendants on various substantive and procedural grounds. Specifically, the University contends that claims six through nine are barred by state sovereign immunity, the Eleventh Amendment, applicable statutes of limitation, and for plaintiff's failure to exhaust administrative remedies as to claims six and seven. The individual defendants allege that claims six through nine should be dismissed because the claims are barred by applicable statutes of limitation and because plaintiff has failed to state claims upon which relief can be granted.4 Having reviewed the record, the parties' briefs, and the applicable law, the court concludes that defendants' second motion for summary judgment should be granted.

FACTUAL BACKGROUND

The factual background is set forth in the court's Memorandum and Order dated September 29, 2004, Filing No. 110, and will not be reiterated this order, except to the extent such facts are relevant to the issues discussed herein. The University hired plaintiff in 1993 as a technical assistance coordinator. In July 1997, the University and Corn Card International entered into a licensing agreement which permitted Corn Card to use the technology that had been created by the plaintiff. A dispute arose between Corn Card and the University. The plaintiff believed that the University had breached its agreement with Corn Card and publicly stated so on several occasions. Ultimately, the University discharged the plaintiff. Plaintiff filed suit alleging a number of state and federal violations. Currently the lawsuit before me contains a First Amendment claim wherein plaintiff contends the University fired him because he expressed his beliefs and opinions to the state ombudsman and to a state senator, and various state law claims.

DISCUSSION
A. Claim Two: 42 U.S.C. § 1983

Before turning to the motion at issue, however, the court finds it necessary to revisit claim two concerning plaintiff's 42 U.S.C. § 1983 claim for an alleged violation of his First Amendment right to free speech. In my Memorandum and Order dated September 29, 2004, I denied defendants' motion for summary judgment as to claim two finding that there was a genuine issue of fact as to whether plaintiff had stated a claim for a violation of his First Amendment right to free speech under 42 U.S.C. § 1983. It has come to the court's attention, however, for reasons explained below, that plaintiff cannot state a claim for relief under § 1983 against the defendants in their individual capacities.

Pursuant to 42 U.S.C. § 1983, the law imposes civil liability on any person who "under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." An essential element in any § 1983 claim is that the conduct complained of must have been committed by a person acting under color of state law. See DuBose v. Kelly, 187 F.3d 999, 1002 (8th Cir.1999), cert. denied, 535 U.S. 1064, 122 S.Ct. 1932, 152 L.Ed.2d 838 (2002); see also Kuha v. City of Minnetonka, 365 F.3d 590, 606 (8th Cir.2003) ("essential elements of a 1983 claim are: (1) violation of a constitutional right, (2) committed by a state actor, (3) who acted with the requisite culpability and causation to violate the constitutional right") (emphasis added). Thus, § 1983 authorizes suits against state officers for damages arising from official acts. Haver v. Melo, 502 U.S. 21, 24, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). Moreover, state officers may be held personally liable for damages under § 1983 based on actions taken in their official capacities. Id.

On December 12, 2003, on plaintiff's own motion, Filing No. 25, the court dismissed claims one through five against the University and against the individual defendants in their official capacities. Filing No. 30. Accordingly, plaintiff's remaining claims assert deprivations of plaintiff's constitutional right to free speech by defendants in their individual capacities. Plaintiff cannot maintain an action for deprivation of his right to free speech against an individual. The First Amendment applies only to governmental restrictions on speech. The First Amendment's Free Speech Clause states that "Congress shall make no law... abridging the freedom of speech...." U.S. Const. amend. I. The First Amendment right to free speech is among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by the states. Lovell v. City of Griffin, 303 U.S. 444, 449, 58 S.Ct. 666, 82 L.Ed. 949 (1938). The First Amendment is also applicable to the political subdivisions of the states. See id. at 450, 58 S.Ct. 666. However, "the First Amendment, the terms of which apply to governmental action, ordinarily does not itself throw into constitutional doubt the decisions of private citizens to permit, or to restrict, speech." Denver Area Educ. Telecom. Consortium, Inc. v. F.C.C., 518 U.S. 727, 737, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (interpreting provision permitting a cable operator to prohibit patently offensive programming). Because plaintiff abandoned his action against defendants in their official capacities, he cannot maintain an action against these individuals for actions taken outside their official capacities.

Accordingly, the court now modifies its September 29, 2004, order to grant defendants' motion for summary judgment as to claim two.

B. Claim Six: The Nebraska State Government Effectiveness Act

Plaintiff contends that the actions of the University and the individual defendants, in both their individual and official capacities, constituted a violation of the Nebraska State Government Effectiveness Act (the "Whistleblower Act"), Neb.Rev.Stat. § 81-2701 et seq. Specifically, plaintiff contends that defendants "recommended, approved, directed and otherwise took personnel action against plaintiff because he disclosed the defendants' wrongdoing to the University Ombudsman, the State Ombudsman, and a Nebraska Senator." Second Amended Complaint at 7. The defendant University and the individual defendants in both their individual and official capacities raise several arguments in response. However, I believe the failure to exhaust by plaintiff is dispositive of this issue.

Failure to Exhaust Administrative Remedies

Defendants argue that this claim should be dismissed against the University and the defendants in both their official and individual capacities because plaintiff failed to exhaust his administrative remedies under the Whistleblower Act.

The Whistleblower Act prohibits any person who has authority to recommend, approve, direct, or otherwise take personnel action to take any personnel action against an employee (1) because of the disclosure of information by the employee to the public counsel or an official which the employee reasonably believes evidences wrongdoing; (2) as a reprisal for the submission of an allegation of wrongdoing or a violation of this section to the public counsel or official by such employee; or (3) as a reprisal for providing information or testimony, pursuant to an investigation or hearing held under the State Government Effectiveness Act, to the public counsel, an official, the state personnel board, a corresponding personnel appeals board, or the director or chief operating officer of an agency. Neb.Rev.Stat. § 81-2705. If an employee notifies the public counsel of an alleged violation of § 81-2705, the public counsel conducts an investigation to determine whether there are grounds to believe that a violation has occurred or is about to occur. Neb.Rev.Stat. § 81-2706. If the public counsel believes by a preponderance of the evidence that...

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3 cases
  • Anderson v. Nebrasks
    • United States
    • U.S. District Court — District of Nebraska
    • August 15, 2018
    ...Potter v. Bd. of Regents of the Univ. of Nebraska, 844 N.W.2d 741, 750 (Neb. 2014); see Biby v. Bd. of Regents of Univ. of Nebraska at Lincoln, 340 F. Supp. 2d 1031, 1036 (D. Neb. 2004), aff'd, 419 F.3d 845 (8th Cir. 2005). While Wang Anderson has stated a claim under § 1983 against Haney, ......
  • Anderson v. Nebrasks
    • United States
    • U.S. District Court — District of Nebraska
    • August 15, 2018
    ...Bd. of Regents of the Univ. of Nebraska, 844 N.W.2d 741, 750 (Neb. 2014); see Biby v. Bd. of Regents of Univ. of Nebraska at Lincoln, 340 F. Supp. 2d 1031, 1036 (D. Neb. 2004), aff'd, 419 F.3d 845 (8th Cir. 2005). While Wang Anderson has stated a claim under § 1983 against Haney, she cannot......
  • Wilson v. Burns
    • United States
    • U.S. District Court — District of Nebraska
    • June 2, 2021
    ...(Neb. 2010); see also Stamm v. Cnty. of Cheyenne, Neb., 326 F. Supp. 3d 832, 844 (D. Neb. 2018); Biby v. Bd. of Regents of Univ. of Neb. at Lincoln, 340 F. Supp. 2d 1031, 1036 (D. Neb. 2004), aff'd, 419 F.3d 845 (8th Cir. 2005). There's also a passing reference to violation of Neb. Rev. Sta......

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