Harris v. Arizona Bd. of Regents

• Decision Date: 23 December 1981
• Docket Number: No. CIV 81-635 PHX VAC.,CIV 81-635 PHX VAC.
• Citation: 528 F. Supp. 987
• Parties: Mark HARRIS and Josephine Harris, husband and wife, Plaintiffs, v. ARIZONA BOARD OF REGENTS, a body corporate; Paige E. Mulhollan and Jane Doe Mulhollan, husband and wife; Guido G. Weigend and Jane Doe Weigend, husband and wife; Marvin Fisher and Jane Doe Fisher, husband and wife, Defendants.
• Court: U.S. District Court — District of Arizona

528 F. Supp. 987

Mark HARRIS and Josephine Harris, husband and wife, Plaintiffs, v. ARIZONA BOARD OF REGENTS, a body corporate; Paige E. Mulhollan and Jane Doe Mulhollan, husband and wife; Guido G. Weigend and Jane Doe Weigend, husband and wife; Marvin Fisher and Jane Doe Fisher, husband and wife, Defendants.

No. CIV 81-635 PHX VAC.

United States District Court, D. Arizona.

December 23, 1981.

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Rodney G. Johnson, McGowan & Johnson, Phoenix, Ariz., Nadia B. Axford, Tempe, Ariz., for plaintiffs.

Charles W. Wirken, Killian, Legg, Nicholas & Fischer, Mesa, Ariz., for defendants.

OPINION AND ORDER

CORDOVA, District Judge.

This matter is before the Court on plaintiff's¹ application for preliminary injunction and on a motion to dismiss filed by the defendant Arizona Board of Regents (Board). For the reasons below the motion to dismiss will be granted and a preliminary injunction will issue against the remaining defendants.

FACTS

Plaintiff Mark Harris is an accomplished writer whose works include the screenplay Bang the Drum Slowly. He was a tenured professor at the University of Pittsburgh in the spring of 1980 when he entered into a series of written and oral negotiations with the defendant university officials about the possibility of joining the faculty at Arizona State University (A.S.U.). As outlined in greater detail below, plaintiff accepted an offer for a position as Professor of English and Director of the Creative Writing Program. This offer contained a unique provision that plaintiff would receive tenure "automatically" in his third year of employment or sooner by mutual convenience. He assumed the position in August of 1980.

The Department of English Personnel Committee reviewed plaintiff's performance and recommended retention by a five to one vote on February 10, 1981. (Exhibit 46). Upon being informed of this evaluation, and after he was advised of certain criticisms of his performance, (Exhibit 35), plaintiff objected that he was not to be reviewed for tenure. At about this time plaintiff also complained of his lack of influence in the selection of a person to fill an assistant professor position in the Creative Writing Program. (Exhibit 14). Specifically, plaintiff opposed the candidacy of Rita Dove, a black female, on the asserted grounds that she was from outside the Program and was no better qualified than the inside candidates plaintiff preferred. Plaintiff even went so far as to threaten to contact Ms. Dove to inform her that she would not be welcome in his program.

After these incidents the Personnel Committee met again on March 5, 1981 and unanimously agreed to reverse its prior recommendation. (Exhibit 27). In its report of March 9, 1981 the Committee recommended that plaintiff be offered a terminal contract for the year 1981-1982. (Exhibit 47). This recommendation was accepted by defendant Provost Paige E. Mulhollan who notified plaintiff of the decision in a letter dated March 12, 1981. (Exhibit 36). Plaintiff then presented his dispute to two faculty advisory groups, the Academic Freedom and Tenure Committee and the American Association of University Professors. While the record does not reveal what actions were taken by the latter group, the former committee conducted a hearing and concluded that plaintiff was entitled to a regular and not a terminal contract. (Exhibit 29). The Provost rejected this conclusion and reaffirmed his intention to offer plaintiff a terminal contract for the 1981-1982 academic year. (Exhibit 33).

Plaintiff was officially offered a terminal contract by means of a Notice of Appointment dated June 1, 1981. (Exhibit 9). The Notice granted plaintiff ten days in which to accept the appointment, in which event 1981-1982 would be his last year of employment. Failure to accept the offer within ten days would constitute a rejection of the appointment. On June 3, 1981 plaintiff's attorneys wrote a letter to A.S.U. President J. Russell Nelson requesting the opportunity to discuss plaintiff's contract dispute. (Exhibit 10). This request was denied on June 5, 1981 by the Provost, who responded on behalf of President Nelson. (Exhibit 12).

On June 9, 1981 plaintiff filed the present action seeking equitable and declaratory relief, as well as damages. The complaint alleges many theories including breach of contract, intentional interference with an advantageous contractual relationship, intentional and/or negligent infliction of emotional distress, and deprivation of civil rights in violation of 42 U.S.C. §§ 1983 and 1985. Following oral argument on June 11, 1981 this Court issued a temporary restraining order to preserve the status quo and plaintiff remains in his position with the university. A hearing on plaintiff's application for preliminary injunction was held on July 16, 1981. Since no evidence was presented on several of the claims raised in the complaint, the Court will decline the request to consolidate that hearing with the final trial under Rule 65(a)(2) of the Federal Rules of Civil Procedure.

MOTION TO DISMISS

The Board has filed a motion to dismiss on the grounds that the Court lacks jurisdiction and that plaintiff's complaint fails to state a claim against the Board upon which relief can be granted. Initially, the Court will consider whether a cause of action exists under § 1983 or under the Constitution, and determine whether jurisdiction exists under 28 U.S.C. § 1331 as alleged in the complaint. The Court will also consider whether the Board is entitled to raise an Eleventh Amendment sovereign immunity defense.

Section 1983 Cause of Action

The Board contends that it is a state agency, City of Tempe v. Arizona Bd. of Regents, 11 Ariz.App. 24, 25, 461 P.2d 503 (1969), and as such is not a "person" within the meaning of § 1983.² Whitner v. Davis, 410 F.2d 24 (9th Cir. 1969); Bennett v. California, 406 F.2d 36 (9th Cir.), cert. denied, 394 U.S. 966, 89 S.Ct. 1320, 22 L.Ed.2d 568 (1969); see Sellers v. Regents of Univ. of Cal., 432 F.2d 493 (9th Cir.), cert. denied, 401 U.S. 981, 91 S.Ct. 1194, 28 L.Ed.2d 333 (1970). Plaintiff attempts to distinguish the cases relied upon by the Board and asserts that the Board is a § 1983 "person."

A recent body of case law leads the Court to conclude that the Board is a "person" within the terms of § 1983. In 1978 the Supreme Court greatly expanded the concept of "person" when it held that "there is no justification for excluding municipalities from the `persons' covered by § 1983." Monell v. Department of Social Services, 436 U.S. 658, 701, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Monell overturned the Court's prior decisions that local governmental units were not "persons," Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973), and substantially undermined the vitality of the Ninth Circuit cases cited by the Board. See Silverton v. Department of Treasury, 644 F.2d 1341, 1344-45 n.3 (9th Cir. 1981). The language of § 1983 is broad and sweeping. Owen v. City of Independence, 445 U.S. 622, 635-36, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Sellars v. Procunier, 641 F.2d 1295, 1298 (9th Cir. 1981). Since there would appear to be no analytical difference in the operation of the Board and the governing bodies found to be "persons" in Monell, the Court determines that the Board is a "person" for § 1983 purposes. See Gay Student Services v. Texas A & M Univ., 612 F.2d 160, 163-64 (5th Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980) (university held to be "person"); Tayyari v. New Mexico State Univ., 495 F.Supp. 1365, 1370 (D.N.M. 1980).

The Court is aware that the Supreme Court opinion in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 39 L.Ed.2d 358 (1979) has been interpreted as holding that States and state agencies are not § 1983 "persons." See e.g., Quern v. Jordan, supra, 440 U.S. at 350, 99 S.Ct. at 1150 (Brennan, J., concurring); O'Connor v. State of Nevada, 507 F.Supp. 546, 551 (D.Nev.1981); Schnapper, Civil Rights Litigation After Monell, 79 COLUM.L.REV. 213, 254 (1979). This Court is not persuaded that such an interpretation is supported by the language of the opinion. In deciding that § 1983 was not intended to abrogate the Eleventh Amendment sovereign immunity of the States, the Quern Court specifically stated that its decision did not "render § 1983 meaningless insofar as States are concerned. See Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)." 440 U.S. at 345, 99 S.Ct. at 1147. In light of this passage this Court is unable to agree that States do not meet the threshold "person" requirement of § 1983, since such a construction would indeed render § 1983 "meaningless" as to them. Rather, the plain inference to be drawn from the Court's statement and reference to Ex parte Young is that States and state agencies are not removed from the class of § 1983 "persons" simply because they may be able to raise an Eleventh Amendment defense. See Gay Student Services v. Texas A & M University, supra, 612 F.2d at 163-64 n.3.³ The assessment of an entity's status under § 1983 is analytically distinct from the inquiry into the entity's status under the Eleventh Amendment. See id. at 163-65.

Since the Board is a § 1983 "person," and since the issuance of the terminal contract represents a matter of official action by the Board, Monell v. Department of Social Services, supra, 436 U.S. at 694, 98 S.Ct. at 2037, it is clear that the complaint states a cause of action under § 1983 against the Board. While § 1983 creates a cause of action, it does not confer jurisdiction upon the Court. A potential jurisdictional problem arises from the fact that the complaint alleges jurisdiction under § 1331, and does not cite 28 U.S.C. § 1343(3), the traditional jurisdictional counterpart to § 1983. Plaintiff's failure to cite § 1343(3) is of no consequence...