Burk v. Beene

• Decision Date: 07 November 1991
• Docket Number: No. 91-1443,91-1443
• Citation: 948 F.2d 489
• Parties: 71 Ed. Law Rep. 42 John BURK, Appellant, v. Linda L. BEENE, Doctor, in her individual and official capacity as Director of the Arkansas State Board of Private Career Education, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 489

948 F.2d 489

71 Ed. Law Rep. 42

John BURK, Appellant, v. Linda L. BEENE, Doctor, in her individual and official capacity as Director of the Arkansas State Board of Private Career Education, Appellee.

No. 91-1443.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 10, 1991.

Decided Nov. 7, 1991.

John Wesley Hall, Little Rock, Ark., argued, for appellant.

Rick D. Hogan, Little Rock, Ark., argued, for appellee.

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, LOKEN, Circuit Judge.

BOWMAN, Circuit Judge.

John Burk appeals the District Court's decision granting summary judgment in favor of Dr. Linda Beene, director of the Arkansas State Board of Private Career Education, on Burk's charge that Beene violated his constitutional rights. We affirm in part, reverse in part, and remand for further proceedings.

The basic facts are not in dispute. Burk was retained by Aviation Education Systems, Inc. ("AESI"), as an instructor for a seminar to be presented in Little Rock, Arkansas, to prepare prospective flight controllers to take the Federal Aviation Administration's qualifying exam. AESI was not licensed by the Arkansas State Board of Private Career Education ("Board"), as Arkansas state law requires for "[a]ny person ... who opens and conducts a private career school ... or an out-of-state school which offers to sell a course in Arkansas." Ark.Code Ann. § 6-51-612 (Michie Supp.1991). Although officials at AESI, by way of a warning from the Board, were aware of the license requirement and AESI's failure to obtain one, Burk was not.

Burk arrived in Little Rock on January 20, 1990, to conduct the one-day seminar there on January 21. Before his departure, AESI advised him that the seminar might not be offered as scheduled, and that he should return home if that were to happen.

As the seminar was getting underway on Sunday, January 21, 1990, officers of the Little Rock police department, accompanied by Beene, appeared at the seminar location with a warrant for the arrest of Ron Schalt, ¹ who evidently was the AESI representative who had preregistered some students for the seminar. Burk advised the officers that Schalt was not present and that he, Burk, did not know Schalt. Burk was told that he should not conduct the seminar, and he complied with that directive. The seminar was cancelled, and Burk left the seminar location, checked out of his hotel room, and departed for the airport to catch a flight home. At the airport, Little Rock police officers arrested him pursuant to a warrant obtained after the cancellation of the seminar. He was held without bond until a judge could convene a bond hearing, and approximately five hours after his arrest he was released on his own recognizance.

Burk brought suit against Beene in her official and individual capacities seeking damages under 42 U.S.C. § 1983 (1988). Burk alleged that Beene caused a warrant to be issued for his arrest without probable cause, and thus in violation of his constitutional rights, because she provided false information via an affidavit to the judge who authorized the warrant. As a pendent state law claim, Burk alleged the tort of malicious prosecution. The District Court granted Beene's motion for summary judgment, holding that Beene was entitled to immunity in her official capacity because she is not a "person" within the meaning of section 1983 when acting in that capacity. The court further held that Beene enjoyed qualified immunity for her acts in her individual capacity. The court also held that Beene acted without malice in orchestrating Burk's arrest so that Burk's state law tort claim could not be sustained. Burk appeals.

Because this case was decided on a motion for summary judgment, our review is governed by the same standards for the granting of summary judgment that governed the District Court. McCuen v. Polk County, 893 F.2d 172, 173 (8th Cir.1990). Thus we review the decision de novo and are permitted to affirm the District Court only if the record demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Moore v. Webster, 932 F.2d 1229, 1231-32 (8th Cir.1991).

The Supreme Court's "trilogy" of recent opinions examining the application of Rule 56(c) informs this Court's review of the District Court's decision. We must view " 'the inferences to be drawn from the underlying facts' " in the light favorable to Burk, the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). If we conclude that no "reasonable jury could return a verdict" for Burk, based on the record before us, then the District Court must be affirmed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). While Beene must direct the Court's attention to the absence of evidence supporting Burk's case, it then becomes Burk's responsibility "to go beyond the pleadings" to show there is a genuine issue for trial if he is not to lose the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

The District Court held that Beene was entitled to constitutional immunity from suit in her official capacity as a state official. Eleventh Amendment jurisprudence is well-settled: "a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). Further, such a suit for damages is forbidden " 'even though individual officials are nominal defendants,' " if any judgment against the official would be paid out of state funds. Id. (quoting Ford Motor Co. v. Department of Treasury, 323 U.S 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945)). "[A] suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself." Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 2311, 105 L.Ed.2d 45 (1989) (citation omitted). Finally, the Supreme Court has recently and definitively announced that "an entity with Eleventh Amendment immunity is not a 'person' within the meaning of § 1983." ² Howlett ex rel. Howlett v. Rose, --- U.S. ----, ----, 110 S.Ct. 2430, 2437, 110 L.Ed.2d 332 (1990) (citing Will, 491 U.S. 58, 109 S.Ct. 2304). These cases lead us to the conclusion that Beene in her official capacity is not subject to a suit for damages under section 1983, unless for some reason she is not entitled to Eleventh Amendment immunity.

"There are ... certain well-established exceptions to the reach of the Eleventh Amendment." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985). A state may waive its sovereign immunity and consent to suit in federal court, and Congress may, by legislation, abrogate immunity without the state's consent in order to effectuate the provisions of the Fourteenth Amendment. Id.; see also U.S. Const. amend. XIV, § 5.

As for the latter possibility, clearly Congress did not abrogate constitutional sovereign immunity when enacting the law that was to become section 1983. Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979). Burk argues, however, that Beene is not entitled to Eleventh Amendment immunity because Arkansas has expressly waived its sovereign immunity by virtue of a state law that provides for indemnification by the state for actual damages assessed against a state employee or official by a state or federal court. ³ Burk's theory is that it would be unnecessary for the legislature to provide for indemnification for liability if in fact the state had not waived its immunity to suits for damages in federal court.

"The test for determining whether a State has waived its immunity from federal-court jurisdiction is a stringent one." Atascadero State Hosp., 473 U.S. at 241, 105 S.Ct. at 3146. The interests of federalism require that such a waiver be clear and unequivocal. See Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, ----, 110 S.Ct. 1868, 1873, 109 L.Ed.2d 264 (1990). We cannot read the indemnification statute as being a clear and unequivocal waiver of the state's Eleventh Amendment immunity. Moreover, the Arkansas Code provides, quite explicitly, that state officials are entitled to immunity in ordinary circumstances: "Officers and employees of the State of Arkansas are immune from liability and suit for damages for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment." Ark.Code Ann. § 19-10-305(a) (Michie Supp.1991); ⁴ see also Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880, 881 (1986). As we are unable to conclude that the state of Arkansas has waived its constitutional immunity from federal-court jurisdiction, we hold, as a matter of law, that Beene is entitled to Eleventh Amendment immunity from suit in her official capacity.

The District Court also concluded that Beene was entitled to immunity from Burk's suit in her individual capacity. State officials performing discretionary functions are protected from personal liability for unlawful acts under certain circumstances by a qualified or "good faith" immunity. Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). Such officials are entitled to this immunity to the extent "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, ...