Buxton v. Lovell

• Decision Date: 01 February 1983
• Docket Number: No. EV 79-184-C.,EV 79-184-C.
• Citation: 559 F. Supp. 979
• Parties: John A. BUXTON, Plaintiff, v. George D. LOVELL, Richard J. Lawlor, Robert E. Hill, Jr., Paul S. Campbell, Lenore DeFonso, Individually and as the Duly constituted Members of the Indiana State Board of Examiners in Psychology, Defendants.
• Court: U.S. District Court — Southern District of Indiana

559 F. Supp. 979

John A. BUXTON, Plaintiff, v. George D. LOVELL, Richard J. Lawlor, Robert E. Hill, Jr., Paul S. Campbell, Lenore DeFonso, Individually and as the Duly constituted Members of the Indiana State Board of Examiners in Psychology, Defendants.

No. EV 79-184-C.

United States District Court, S.D. Indiana, Evansville Division.

February 1, 1983.

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Steve Barber, Lockyear, Barber & Kornblum, Evansville, Ind., for plaintiff.

Barbara J. Marvel, Deputy Atty. Gen., Indianapolis, Ind., for defendant.

MEMORANDUM OF DECISION

BROOKS, District Judge.

This matter came on for trial before the Honorable Gene E. Brooks, Judge, United States District Court for the Southern District of Indiana, Evansville Division, on the 27th day of July, 1981. The Court having heard the testimony of the parties, having examined their exhibits admitted into evidence, having heard the arguments of counsel, and being duly advised and briefed in the premises, hereby finds the following.

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court enters its Findings of Fact and Conclusions of Law in memorandum form.

The plaintiff, John A. Buxton, filed this action pursuant to Title 42, U.S.C. § 1983, when the defendants, members of the Indiana State Board of Examiners in Psychology, refused to allow him to use the designation "Ph.D." following his name in the yellow pages of the Evansville and Metropolitan Area Telephone Directory. Plaintiff claims that the defendants' actions were arbitrary, capricious, and an unconstitutional infringement upon plaintiff's rights under the First Amendment, and constituted a discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Plaintiff's amended complaint also alleges that the administrative process for rectifying his problem is so defective and inadequate that it deprives him of equal protection of the laws and due process of law.

The failure to renew plaintiff's Private Practice Certificate or to permit use of the "Ph.D." designation, by the Indiana State Board of Examiners in Psychology (hereinafter referred to as the "Board"), caused the plaintiff to file his complaint on November 2, 1979. An Agreed Judgment Entry was entered into by the parties and approved by this Court on November 8, 1979. Said entry, among other things, provided that plaintiff would be reissued his Private Practice Certificate. The parties stipulated to the Court that they had "... arrived at a full and complete compromise and settlement upon all issues except one." The remaining issue as stated in the Agreed Entry is as follows:

That if the defendants question the plaintiff's continued use of the "Ph.D." designation, such question must be presented to this Court on or before January 1, 1980, and if not so presented, said question is waived, and this Order becomes a final judgment against the defendants on said date.

Subsequently, the Board sought a ruling on the "Ph.D." designation. The request by the Board to review this matter was made through a "Motion to Determine Issue," receipted by the Clerk on January 3, 1980. This Court, in its Order dated March 31, 1980, held that it would rule on the propriety of using the "Ph.D." designation in the plaintiff's advertising since the certificate of service disclosed that said motion was mailed on December 31, 1979. When filing is attempted by mail, the filing is completed when the document is placed in the Clerk's post office box. Ward v. Atlantic Coast Line Railroad Co., 265 F.2d 75 (5th Cir. 1959); Hetman v. Fruit Growers Express Co., 200 F.Supp. 234 (D.N.J.1961); Johansson v. Towson, 177 F.Supp. 729 (M.D.Ga. 1959). Thus the issue now before the Court is whether the plaintiff, John Buxton, is entitled to use the title "Ph.D." in connection with his practice of psychology.

I JURISDICTION

A. ELEVENTH AMENDMENT AND THE DOCTRINE OF SOVEREIGN IMMUNITY

Various jurisdictional issues, including immunity due to the Eleventh Amendment, must be addressed in order to properly find that the Court has subject matter jurisdiction. It is axiomatic that "there is never a presumption in favor of federal jurisdiction, but rather the basis for such jurisdiction must be affirmatively evidenced by the party invoking it." Johnson v. Texas Department of Corrections, 373 F.Supp. 1108, 1109 (S.D.Tex.1974) (citing Grace v. American Central Insurance Company, 109 U.S. 278, 3 S.Ct. 207, 27 L.Ed. 932 (1883)).

The Eleventh Amendment of the United States Constitution limits the jurisdiction of the federal courts by providing that "the judicial power of the United States shall not be construed to extend to any suit, in law or in equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." It is well established that even though a State is not named a party to the action, the test of the Eleventh Amendment's applicability is whether the state is the "`real, substantial party in interest.'" Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974) (quoting Ford Motor Company v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945)). Thus, the Court must evaluate whether the suit is in reality a suit against the State, although nominally against an officer, and when it is in reality against the officer named as defendant. Generally decrees requiring an affirmative official action on the part of the defendants, the performance of an obligation which belongs to the state in its political capacity, are suits against the State. Those actions at law or suits in equity which are maintained against defendants who, while claiming to act as officers of the State, violate and invade the personal and property rights of the plaintiff under color of official rights which are unconstitutional and void, are not suits against the State. In this latter case the rationale is that unconstitutional actions by state officials are not the actions of the State itself — because a State "can do no wrong."

These general principles were reaffirmed in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), in which the Supreme Court held that the Eleventh Amendment did not necessarily bar a claim that named as defendants the Governor of Ohio, the Adjutant General of the Ohio National Guard, various other Guard officers and enlisted members, and the President of Kent State University. The Court held that damages against individual defendants were permissible despite their holding public office since the alleged activities were unconstitutional. As the Scheuer Court noted, the Supreme Court established in 1908 that:

When a state officer acts under a state law in a manner violative of the Federal Constitution, he "comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The State has no power to impart to him any immunity from responsibility to the supreme authority of the United States."

416 U.S. at 237, 94 S.Ct. at 1687 (quoting Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908). (Emphasis supplied by Scheuer Court). In the case at bar, the plaintiff claims the Board's action denying him the use of the "Ph.D." designation in the context of his psychology practice is an unconstitutional action under color of official right and therefore the defendants are stripped of their official character.¹

The defendants argue that this action is precluded by principles of sovereignty since the relief sought may have some tangential impact on the state treasury. For this proposition the Board members rely upon Ford Motor Company v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945) wherein recovery of money was sought in the form of refunded taxes alleged to have been illegally collected by the Department of Treasury for the State of Indiana and individuals constituting the "Board of the Department of Treasury." Obviously, refunded taxes would be paid from the State Treasury. In the case at bar, the defendants are named individually and as the duly constituted members of the Indiana State Board of Examiners in Psychology. In this latter context, the defendants are named in their "official capacity" and thus, the award of monetary damages is barred by the Eleventh Amendment. However, the Eleventh Amendment does not proscribe prospective relief against defendants in their "official" capacity. Owen v. Lash, 682 F.2d 648, 654 (7th Cir.1982); Rucker v. Higher Educational Aids Bd., 669 F.2d 1179 (7th Cir.1982).

The defendants would have the responsibility to satisfy a money judgment that might be rendered against them in their individual capacity. Thus, the fact that the relief sought may include a monetary judgment does not bar the action by the Eleventh Amendment or sovereign immunity. See Morrow v. Sudler, 502 F.Supp. 1200 (D.C.Colo.1980); Johnson v. Brelje, 482 F.Supp. 125 (N.D.Ill.1979).

B. ABSTENTION DOCTRINE

The Board also argues that this Court should abstain from reaching the merits of the plaintiff's constitutional claims. The genesis for this argument lies in a Supreme Court opinion by Mr. Justice Frankfurter ordering "abstention" in Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Therein, the Supreme Court held a state administrative order requiring conductors on all sleeping cars was attacked on grounds of racial discrimination under both federal and state law. Finding the state law unclear and the federal constitutional question substantial the court held that when a federal constitutional claim is premised on an unsettled question of state law, the federal court should abstain in order to provide the ...