Mackey v. Cleveland State University, 1:91 CV 1430.

Decision Date20 July 1993
Docket NumberNo. 1:91 CV 1430.,1:91 CV 1430.
Citation837 F. Supp. 1396
PartiesKevin F. MACKEY, Plaintiff, v. CLEVELAND STATE UNIVERSITY, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

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Gary John Maxwell, Cleveland Works, Inc., Theodore E. Meckler, Meckler & Meckler, John H. Lawson, David B. Roth, Cleveland, OH, for plaintiff.

Steven S. Kaufman, Thomas L. Feher, Jack G. Day, Kaufman & Cumberland, Cleveland, OH, for defendants.

ORDER

BATTISTI, District Judge.

Before the Court is Defendants' motion to dismiss, Plaintiffs response and Defendants' reply. For the following reasons, Defendants' motion is granted with regard to Counts One through Thirteen. Count Fourteen is dismissed with regard to the individual Defendants in their individual capacities. However, Defendants' Motion to Dismiss Count Fourteen is denied with regard to Cleveland State University and the individual Defendants in their official capacities.

FACTS

The undisputed facts in this case are as follows. Plaintiff, Kevin Mackey ("Mackey") was employed as the Head Basketball Coach at Cleveland State University (the "University" or "CSU") from March 17, 1983 until the summer of 1990. He was not a tenured employee, but was under contract. A July 6 letter from University President John Flower notified Mackey that he had been recommended by the "appropriate University Officers" for a contract at Cleveland State University for the period from July 1, 1990 through June 30, 1992. Mackey accepted the offer of employment by signing and returning the letter on July 9, 1990.

On July 13, 1990 Mackey was arrested and charged with driving under the influence and having an open container. On July 17 Mackey held a press conference where he admitted that he had an alcohol problem which required treatment. Defendants John A. Flower ("Flower"), President, and Jan P. Muczyk ("Muczyk"), Provost and Vice President for Academic and Student Affairs of the University, held another press conference on July 19 announcing that Mackey's employment at CSU had been terminated. That press conference was followed by a letter dated July 24, in which Defendants' counsel notified Mackey's counsel that Mackey would no longer be employed by the University.

On August 11, 1990 a Grand Jury returned indictments on the charges of drug abuse (cocaine) and driving while intoxicated based on the events of the evening of July 13. Mackey received treatment in lieu of conviction pursuant to O.R.C. § 2951.041. He successfully completed treatment and on October 23, 1991 the proceedings against him were dismissed.

Mackey brought the present action against Cleveland State University, nine members of the Board of Trustees individually and in their official capacities (the "Trustees"), President of the University John A. Flower ("Flower"), Provost and Vice President for Academic and Student Affairs Jan P. Muczyk ("Muczyk"), and Director of Athletics John Konstantinos ("Konstantinos") individually and in their official capacities.

Mackey alleges the following federal claims: violations of 42 U.S.C. §§ 1983, 1985(3), 1986, and 29 U.S.C. § 701 et seq. (the "Rehabilitation Act"). In addition, Mackey asserts ten state law claims.

Plaintiffs § 1983 claims against Cleveland State University seeking damages are dismissed since CSU is immune from suit in federal court under the Eleventh Amendment. Likewise, the § 1983 claims for retrospective relief against the Trustees, Flower, Muczyk and Konstantinos in their official capacities are dismissed based on Eleventh Amendment immunity. The claims against the Trustees, Flower, Muczyk and Konstantinos in their individual capacities are dismissed based on qualified immunity. Furthermore, all § 1983 claims, including Plaintiff's action for injunctive relief, are dismissed for failure to state a claim. Likewise, Plaintiff's § 1985(3) and § 1986 actions are dismissed for failure to state a claim upon which relief may be granted. Plaintiff's state law claims are dismissed. Finally, the Rehabilitation Act claim is dismissed only with regard to the individual defendants in their individual capacities based on qualified immunity. As to the other Defendants, the motion to dismiss Count 14 is denied.

LAW

The Sixth Circuit has set forth the following standards for the dismissal of a plaintiff's complaint:

In cases involving the dismissal of a complaint, the complaint is to be construed in the light most favorable to the plaintiff and its allegations taken as true. The complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Lee v. Western Reserve Psychiatric Habilitation Center, 747 F.2d 1062, 1065 (6th Cir. 1984) (citations omitted). "However, we need not accept as true legal conclusions or unwarranted factual inferences." Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987).

Defendants seek dismissal pursuant to Fed.R.Civ.P. 12(b)(1), (2) and (6). Rule 12(b)(1) provides for dismissal for lack of jurisdiction over the subject matter, while Rule 12(b)(2) deals with lack of jurisdiction over the person. Rule 12(b)(6) addresses the failure to state a claim upon which relief can be granted.

Defendants provided an assortment of materials outside the pleadings. "If, on a motion asserting the defense numbered (6) to dismiss ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56...." Fed.R.Civ.P. 12(b). However, whether to proceed as a motion for summary judgment is within the discretion of the Court. See 2A James Wm. Moore, Moore's Federal Practice § 12.093 (1992). The Court places no reliance on the additional materials. Therefore, the matter before the Court will be treated only as a motion to dismiss, and not a motion for summary judgment.

A. § 1983 CLAIM

To successfully state a claim under 42 U.S.C. § 1983, Mackey must identify a right secured by the United States Constitution and the deprivation of that right by a person acting under color of state law. Russo v. City of Cincinnati, 953 F.2d 1036 (6th Cir. 1992) (citing West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988)).1 "It is not enough for a complaint under § 1983 to contain mere conclusory allegation of unconstitutional conduct by persons acting under color of state law. Some factual basis for such claims must be set forth in the pleadings." Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir.1986) (citing, Place v. Shepherd, 446 F.2d 1239 (6th Cir.1971)). Once Defendants have challenged Mackey's complaint based on a failure to plead facts specific enough to support a claim of unconstitutionality, "`Plaintiffs must produce some factual support for their claim to avert dismissal.'" Id. (quoting Hobson v. Wilson, 737 F.2d 1, 30 (D.C.Cir.1984), cert. denied, 470 U.S. 1084, 105 S.Ct. 1843, 85 L.Ed.2d 142 (1985)).

In his first claim for relief, Mackey alleges that "Plaintiff was denied employment and other property interests by Defendants without due process of law. Said wrongful acts, conduct and omissions by Defendants are violative of the civil rights of Plaintiff, including those guaranteed by 42 U.S.C. Section 1983, and the aforementioned Constitutional provisions." (Amended Complaint, ¶¶ 20, 21). Mackey does not elucidate what property interests, other than employment, are implicated. There does not appear to be a dispute over the issue of whether Defendants were acting under color of state law.

The Due Process clause of the Fourteenth Amendment protects against the deprivation of life, liberty and property without due process of the law. U.S. Const., 14 Amend.; see Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 n. 3, 105 S.Ct. 1487, 1491 n. 3, 84 L.Ed.2d 494 (1985). Contractual rights, such as Mackey's employment contract, "are a species of property within the meaning of the Due Process Clause." Charles v. Baesler, 910 F.2d 1349, 1352 (6th Cir.1990) (citing Perry v. Sindermann, 408 U.S. 593, 601-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972)). "In any due process case, after the plaintiff establishes deprivation of life, liberty or property, `the question remains what process is due.'" Charles, 910 F.2d at 1352 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)).

The Due Process clause may impose procedural or substantive limitations on a given deprivation, or both. See Loudermill, 470 U.S. at 541, 105 S.Ct. at 1492. However, the Court will restrict its discussion to procedural due process in the case at hand. The Sixth Circuit has found that a breach of contract by a public employer does not give rise to a § 1983 claim for violations of substantive due process Holthaus v. Bd. of Pub. Educ., Cincinnati Pub. Sch., 986 F.2d 1044 (6th Cir.1993); Charles, 910 F.2d at 1353 (6th Cir.1990) (holding that a public employee has no substantive due process right to a promotion); Ramsey v. Bd. of Educ. of Whitley County, 844 F.2d 1268 (6th Cir.1988). Specifically, the Sixth Circuit has held that a claim of improper discharge of a public employee cannot be brought as a violation of substantive due process even where the employment contract provides that the employee could only be discharged for just cause. Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1351 (6th Cir.1992) (a public employee's "state-created right to tenured employment lacks substantive due process protection"). Rather than a constitutional violation, the matter was viewed as a simple breach of contract claim. "Absent the infringement of some `fundamental' right, it would appear that termination of public employment does not constitute a denial of substantive due process." Sutton, 958 F.2d at 1351. Thus, Mackey has not stated a claim for a...

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