Fong v. Purdue University

• Decision Date: 10 August 1988
• Docket Number: Civ. No. L 88-30.
• Citation: 692 F. Supp. 930
• Parties: Francis K. FONG, Plaintiff, v. PURDUE UNIVERSITY, an Indiana State University Kenneth Kliewer, Hean of the School of Science; and Varro E. Tyler, Executive Vice President for Academic Affairs.
• Court: U.S. District Court — Northern District of Indiana

692 F. Supp. 930

Francis K. FONG, Plaintiff, v. PURDUE UNIVERSITY, an Indiana State University Kenneth Kliewer, Hean of the School of Science; and Varro E. Tyler, Executive Vice President for Academic Affairs.

Civ. No. L 88-30.

United States District Court, N.D. Indiana, Hammond at Lafayette Division.

August 10, 1988.

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Peter V. Baugher, Adams, Fox, Adelstein & Rosen, Chicago, Ill., for plaintiff.

John F. Bodle and William E. Emerick, Stuart & Branigin, Lafayette, Ind., for defendant.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

INTRODUCTION

The plaintiff, Francis K. Fong, filed this action on April 7, 1988, to enjoin officials of Purdue University from allegedly attempting to silence him and drive him from his tenured position on the Purdue faculty. Dr. Fong asserts that the defendants' conduct violates his First and Fourteenth Amendment rights. His complaint purports to allege claims under 42 U.S.C. § 1983. The complaint invokes this court's federal question jurisdiction under 28 U.S. C. §§ 1331 and 1343(a)(3) and (4). As was highlighted at the outset by the court, this suit is for injunctive relief as opposed to damage relief, and it could not be otherwise under the Eleventh Amendment immunity principles set forth in Kashani v. Purdue University et al., 813 F.2d 843 (7th Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987). See also, Shannon v. Bepko, 684 F.Supp. 1465 (S.D. Ind.1988).

This court has cautioned that these proceedings will not be used as a public forum for personal revenge against a long list of officials who, for legitimate reasons, chose not to take up a cause for which they had no legal responsibility. Neither the law, nor the university's policies can be read to impose an affirmative duty on the part of Purdue, to tilt all the windmills of all its employed geniuses, however correct their theories and research might ultimately turn out to be. An array of intense interpersonal conflicts has developed between this plaintiff and many others at Purdue and elsewhere. The list of alleged villains in this case includes, among others, certain individuals from the United States Attorney's office, the Justice Department, the Federal Bureau of Investigation, the Tippecanoe County Prosecutor's office, the National Science Foundation (NSF), the Purdue faculty and administration, the Indiana State Police, and the Governor of Indiana. The plaintiff alleges that the defendants conspired with the above individuals in an attempt to silence him from "blowing the whistle" or from prosecuting his claims.¹

There can be no question about the fact that Dr. Fong wanted the officials at Purdue University to join his frontal assault on the National Science Foundation. There can also be no doubt that Dr. Fong wanted the persons in his own scientific discipline at Purdue University and elsewhere to join him in his two decades-long battle to discredit the opposing scientific viewpoint of Professor Melvin Calvin of University of California at Berkeley. To the extent that one of the realistic purposes of this lawsuit is to achieve either or both of these results, such is well beyond even an expansive activist view of the proper functions of this court.

As a final preliminary comment, this court has emphasized its unwillingness to be placed in the position of judging Dr. Fong's science. That judgment is here neither necessary nor appropriate. The president of Purdue University and others have said kind things in this court and elsewhere about the scientific accomplishments of Dr. Fong. There is evidence in the record indicating that all the persons expert in his scientific discipline are not of one mind on the relevant subject of photosynthesis. However, this is not a bridge to be crossed here by this court. In a most generalized way, the dimensions and characteristics of photosynthesis probe very deeply into the nature of the universe and the nature of life itself in that universe. To determine the ultimate question of scientific truth in this deeply disputed context is well beyond either the requirements of this court in this case, or the capacity of this court in a generalized sense. Here, this court is required to decide a much narrower dispute within clearly established parameters under the First and Fourteenth Amendments of the Constitution of the United States.

In addition to sorting through the factual morass that has developed over the course of more than a decade, the court must address, A) the proper office of preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure in this circuit, and B) the historical and current requirements under 42 U.S.C. § 1983. The court will then examine the nature of the plaintiff's claims here, in the pleadings and in the course of these proceedings, with respect to the major issues of procedural and substantive due process. Procedural due process will be addressed and dealt with at length, although during the hearings certain related questions then appeared unripe. In addressing substantive free speech rights of this professor as a public employee at a state university, the court will discuss the standards governing the university's alleged retaliation, and in so doing must examine the alleged nexus between any arguably protected speech exercised by the plaintiff, and the university's decision to initiate censure and dismissal proceedings.

A. PRELIMINARY INJUNCTION

In ruling on an injunction the court considers four factors, as recently reviewed by this court in Naked City, Inc. v. Aregood, 667 F.Supp. 1246, 1256 (N.D.Ind. 1987), and cases cited therein. To obtain a preliminary injunction, a plaintiff must demonstrate: (1) a threat of irreparable harm without an adequate remedy at law; (2) some likelihood of success on the merits of the claim; (3) a balance of relative harm weighing in favor of granting the injunction; and (4) compatibility of the injunction and the public interest. Id., citing Chicago Board of Realtors, Inc. v. City of Chicago, 819 F.2d 732, 735 (7th Cir.1987).

These criteria have been similarly, but otherwise stated as being that the plaintiff bears the burden of demonstrating (1) inadequacy of a remedy at law; (2) irreparable harm absent issuance of the injunction; (3) greater irreparable harm than the defendant would suffer if an injunction were granted; (4) a reasonable likelihood of prevailing on the merits; and (5) a lack of harm to the public interest, should the injunction be granted. Kowalski v. Chicago Tribune Company, 854 F.2d 168, (7th Cir. 1988); Curtis v. Thompson, 840 F.2d 1291 (7th Cir.1988); see also, Brunswick Corporation v. Jones, 784 F.2d 271, 273-74 (7th Cir.1986); Roland Machinery Corp. v. Dresser Industries, Inc., 749 F.2d 380, 382-88 (7th Cir.1984).

For the reasons set forth fully in this opinion, the plaintiff's motion for preliminary injunction must be denied under either analysis. Dr. Fong fails to show a reasonable likelihood of success on the merits of either his First or Fourteenth Amendment claims. His cause also fails in terms of the balancing test. Finally, in the opinion of this court, to grant an injunction here would not be compatible with the public interest.

B.

UNITED STATES CODE

TITLE 42, SECTION 1983

Pursuant to § 1983:

every person who, under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory or the District of Columbia, subjects or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983.

To bring a successful § 1983 claim, the plaintiff must prove that the defendant deprived him of a right secured by federal law or the Constitution while acting under color of state law. Bergren v. City of Milwaukee, 811 F.2d 1139 (7th Cir.1987); Moore v. Marketplace Restaurant, Inc., 754 F.2d 1336, 1339 n. 1 (7th Cir.1985). Otherwise stated, § 1983 requires proof that

(1) defendants acted under color of state law, (2) defendants' actions deprived plaintiff of ... rights, privileges or immunities guaranteed by the Constitution, and (3) defendants' conduct proximately caused plaintiff's deprivation.

Volk v. Coler, 845 F.2d 1422 (7th Cir.1988), quoting Webb v. City of Chester, Illinois, 813 F.2d 824, 827 (7th Cir.1987).

In the interest of crystallizing the legal issues here, this court pointed out at the outset of the proceedings, that allegations of defamation, damage to reputation, and inability to enlist research assistance, will not, without deprivation of a recognized liberty or property interest, support a § 1983 claim. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Elliott v. Hinds, 786 F.2d 298 (7th Cir.1986); Bone v. City of Lafayette, 763 F.2d 295 (7th Cir.1985); Lawson v. Sheriff of Tippecanoe County, 725 F.2d 1136 (7th Cir. 1984). Thus, one of the threshold issues to be addressed is the nature of the plaintiff's liberty and property interests in Purdue University employment.

Historically, in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) the Supreme Court pointed to three main purposes for § 1983: (1) to override state laws which impinge on constitutional rights and privileges; (2) to provide a federal remedy where the remedy provided by state law was inadequate; and, (3) to provide a federal remedy where the state remedy, though adequate in theory, was not available in practice. Monroe concluded that the adequacy of a state law remedy was irrelevant and that it need not be sought and refused before involving the federal remedy. This conclusion, along with an expanded definition of "under color of law," led to an increase in federal court civil rights cases...