Grosz v. State of Ind.

• Decision Date: 21 February 1990
• Docket Number: No. IP 85-968-C.,IP 85-968-C.
• Citation: 730 F. Supp. 1474
• Parties: Hanus J. GROSZ, M.D., Plaintiff, v. STATE OF INDIANA, et al., Defendant.
• Court: U.S. District Court — Southern District of Indiana

730 F. Supp. 1474

Hanus J. GROSZ, M.D., Plaintiff, v. STATE OF INDIANA, et al., Defendant.

No. IP 85-968-C.

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

February 21, 1990.

Howard Howe, Indianapolis, Ind., for plaintiff.

Mark A. Dabrowski, Deputy Atty. Gen., Office of the Attorney General, Indianapolis, Ind., for defendants.

ENTRY GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS

TINDER, District Judge.

This cause comes before the court on the defendants' Motion to Dismiss based on lack of subject matter jurisdiction as to some claims pursuant to Fed.R.Civ.P. 12(b)(1) and on failure to state a claim as to the remaining claims pursuant to Fed.R. Civ.P. 12(b)(6).

I. Background

According to the complaint, plaintiff Hanus J. Grosz, M.D., was a licensed and board certified psychiatrist who entered into two written contracts with the Indiana Department of Corrections (department) in July 1983 to provide psychiatric services to offenders who were committed to the department. According to the contracts, Grosz was to serve as a consulting psychiatrist from July 1, 1983, through June 30, 1984; however, the contracts also contained provisions that allowed for termination of the contracts upon thirty days notice by either party. The plaintiff states that he had been performing psychiatric services to the department for approximately twenty years.

Grosz alleges that in November 1983, an attorney for James A. Harris, a state criminal defendant who Grosz had previously examined, contacted Grosz to testify in Harris's state trial. Grosz began testifying in the Harris trial on November 30, 1983, and asserts that he testified truthfully. Grosz then alleges that on December 8, 1983, defendant Cloid L. Shuler, Deputy Commissioner for the department, informed Grosz that Shuler and defendant Gordon H. Faulkner, Commissioner of the department, were angry about Grosz's testimony in the Harris trial and were going to terminate the consulting contracts. Shuler confirmed the conversation by letter dated December 12, 1983, which terminated the contracts with Grosz effective January 15, 1984. Grosz completed his testimony in the Harris trial on January 18, 1984.

Grosz filed this cause of action under 42 U.S.C. § 1983 in federal court on July 1, 1985, naming as defendants the state of Indiana, the department, Faulkner, Shuler, and Deputy Commissioner Gerald White. Grosz alleges that the department terminated his employment contract in retaliation for his testimony, which violated his constitutional rights under the first and fourteenth amendment. Grosz further alleges that the defendants slandered the plaintiff after the termination by making false statements to the media about the reasons for the plaintiff's termination. Grosz seeks the reinstatement of his employment contract and compensatory damages and attorneys' fees pursuant to 42 U.S.C. § 1988.¹

The defendants filed a Motion to Dismiss arguing that this court lacks subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) as to the state and the department, and Faulkner, Shuler, and White in their official capacities. In addition, they argue that the remaining portions of the complaint should be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).

II. Standard of Review

In deciding a motion to dismiss based upon Fed.R.Civ.P. 12(b)(1), a court should liberally construe the complaint and is not bound to accept as true allegations of jurisdiction where a party properly raises factual questions of subject matter jurisdiction. The court may look beyond the jurisdictional allegations to examine any evidence submitted to determine if subject matter jurisdiction in fact exists. 5 C. Wright & A. Miller, Federal Practice & Procedure, § 1350 (1969); Gervasio v. United States, 627 F.Supp. 428, 430 (N.D.Ill.1986).

A complaint should not be dismissed for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6) unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984). However, this broad standard for judging the sufficiency of a complaint "has never been taken literally." Sutliff, Inc. v. Donovan Cos., Inc., 727 F.2d 648, 654 (7th Cir.1984).

The complaint must contain either direct allegations on every material point necessary to sustain a recovery on any legal theory, even though it may not be the theory suggested or intended by the pleader, or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial.

Id. (quoting 5 C. Wright & A. Miller, Federal Practice & Procedure § 1216 at 121-23 (1969)).

III. Discussion

The plaintiff's action is brought pursuant to section 1983, which provides a cause of action to redress the violation of federally-secured rights, privileges or immunities by a person or governmental body acting under color of state law. Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984). Section 1983 reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of 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. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

42 U.S.C. § 1983 (1981).

A person seeking to state a claim under section 1983 must establish two essential elements: (1) the deprivation of a right secured by the Constitution and the laws of the United States; and (2) the person or persons who caused the alleged deprivation were acting under color of state law. E.g., Gilbreath v. East Arkansas Planning & Dev. Dist., Inc., 471 F.Supp. 912, 921 (E.D. Ark.1979).

In the motion to dismiss, the defendants first argue that this court lacks subject matter jurisdiction pursuant to Fed.R. Civ.P. 12(b)(1) as to the state and the department, and Faulkner, Shuler, and White in their official capacities because the eleventh amendment provides immunity from such suits. Second, they argue that the rest of the complaint should be dismissed for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6).

A. Claims against the State of Indiana

States and their "alter ego" agencies may not be sued in federal court directly in their own names for damages by virtue of the eleventh amendment which reads as follows:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI; see Hans v. State of Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

Where a government official is the nominal defendant in a suit for damages, but the action is really against the state because the demand is for state money, it is clear that such a suit is barred by the eleventh amendment. E.g., Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Brunken v. Lance, 807 F.2d 1325, 1329 (7th Cir.1986) (holding that if the section 1983 action is for monetary relief that would require damages to paid out of the state treasury to remedy past wrongs, the eleventh amendment bars such an action in the absence of a waiver by the state or a valid override by Congress). The enactment of section 1983 did not abrogate the states' eleventh amendment immunity. Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Thus, whenever a government official or agency is sued in federal court under section 1983 for damages, the court must inquire whether the suit is in fact against the state. After it is determined that a government body is the real defendant, the resolution of the eleventh amendment issue "turns on whether the body is to be treated as an arm of the State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend." Mount Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977).

Determining whether a suit is against a state is not always a simple task. The applicability of the eleventh amendment "is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record." In re State of New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057 (1921); see Shockley v. Jones, 823 F.2d 1068 (7th Cir. 1987); cf. Meadows v. Indiana, 854 F.2d 1068, 1069 (7th Cir.1988) (quoting Kolar v. County of Sangamon, 756 F.2d 564, 568 (7th Cir.1985)) ("Where a complaint alleges that the conduct of a public official acting under color of state law gives rise to liability under Section 1983, we will ordinarily assume that he has been sued in his official capacity and only in that capacity."). However, it is well settled that "the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law." Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); see also Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

In this case, it is clear that the state of Indiana has specifically chosen not to waive its immunity under the eleventh amendment. Ind.Code § 34-4-16.7-3 (1982); see...