Moore v. Warwick Public School Dist. No. 29

• Decision Date: 13 June 1986
• Docket Number: No. 85-5116,85-5116
• Citation: 794 F.2d 322
• Parties: 40 Fair Empl.Prac.Cas. 1757, 40 Empl. Prac. Dec. P 36,215, 33 Ed. Law Rep. 157, 1 A.D. Cases 911 Joseph F. MOORE, Appellant, v. WARWICK PUBLIC SCHOOL DISTRICT NO. 29, a public corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 322

794 F.2d 322

40 Fair Empl.Prac.Cas. 1757,

40 Empl. Prac. Dec. P 36,215, 33 Ed. Law Rep. 157,

1 A.D. Cases 911

Joseph F. MOORE, Appellant, v. WARWICK PUBLIC SCHOOL DISTRICT NO. 29, a public corporation, Appellee.

No. 85-5116.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 12, 1986.

Decided June 13, 1986.

Daniel J. Chapman, Bismarck, N.D., for appellant.

Douglas R. Herman, Fargo, N.D., for appellee.

Before HEANEY and BOWMAN, Circuit Judges, and HANSON, ^* Senior District Judge.

BOWMAN, Circuit Judge.

Plaintiff Joseph Moore appeals from the District Court's dismissal of both counts of his civil rights complaint. Moore was discharged during the term of his one-year contract as superintendent of the Warwick Public School District. The first count of his complaint under 42 U.S.C. Sec. 1983 alleged procedural and substantive due process violations. The second count alleged handicap discrimination on account of blindness in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794. The District Court entered pre-trial judgment in favor of defendant on both counts and dismissed the complaint. We reverse and remand for further proceedings consistent with this opinion.

I.

Joseph Moore was superintendent of the Warwick Public School District from mid-1978 until his discharge on December 22, 1982. At the time of his discharge, Moore had a written one-year contract with the school district effective through July 1, 1983. Moore's eyesight had begun to deteriorate because of glaucoma to the point that at the time of his discharge he was at least partially, if not totally, blind. In early November 1982 Moore was asked by the school board to resign. He refused to do so. On December 14, 1982, the school board voted unanimously to discharge Moore effective December 22, 1982.

In May 1983 Moore filed this suit against the school district. In the first count under section 1983, Moore alleged that he had been deprived of a property right without due process of law and that the school board acted arbitrarily, capriciously, and in bad faith in discharging him. The second count alleged that the school board discriminated against Moore because of his handicap (i.e., his blindness), in violation of section 504 of the Rehabilitation Act of 1973.

Defendant filed its answer and moved to strike the demand for a jury trial, to strike the prayer for compensatory damages under the section 504 claim, and to dismiss the section 1983 claim on the ground that the comprehensive remedial scheme enacted by Congress under section 504 was the exclusive remedy for a violation thereunder, thereby precluding an action under section 1983. District Judge Bruce M. Van Sickle denied defendant's motions in November 1983.

District Judge Paul Benson thereafter assumed control of this action, and on September 20, 1984 entered sua sponte an order dismissing the section 504 claim "for failure to plead a basis for subject matter jurisdiction by the federal court." Appendix at 31. The court cited as the reason for the dismissal Moore's failure to amend the complaint as suggested by District Judge Van Sickle in his November 1983 order. The court also dismissed sua sponte the section 1983 claims on March 5, 1985 after an evidentiary hearing. The purpose of the hearing was "to determine whether, as a matter of law, a jury issue is present regarding the alleged violations of procedural and substantive due process." App. at 53. Applying the analysis adopted in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981) and Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), the court held that North Dakota law provided an adequate post-deprivation remedy in the form of a common law action for breach of contract, and that Moore therefore had not been deprived of procedural due process. App. at 55-57. As to the substantive due process claim, the court noted that a plaintiff bears the burden of showing that the school board acted arbitrarily and capriciously. App. at 57 (citing Harrah Independent School District v. Martin, 440 U.S. 194, 99 S.Ct. 1062, 59 L.Ed.2d 248 (1979) (per curiam)). Citing evidence of complaints to the school board regarding various school problems and Moore's performance, the court held that the school board did not act arbitrarily and that therefore there was no substantive due process violation. App. at 58. ¹

II.

In his September 20, 1984 order dismissing the section 504 claim in count II of the complaint, Judge Benson relied entirely upon Judge Van Sickle's November 1983 order to justify dismissal of the claim for lack of federal subject matter jurisdiction. We believe Judge Benson erred in his interpretation of Judge Van Sickle's order and in his dismissal of the section 504 claim.

Much of the confusion in regard to the section 504 claim appears to have been generated originally with defendant's motion to dismiss the section 1983 claim in count I of the complaint. In that motion, defendant asserted that Moore's claim under section 1983 was foreclosed because Congress had provided a sufficiently comprehensive remedy for handicap discrimination under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794. See Maine v. Thiboutot, 448 U.S. 1, 4-8, 100 S.Ct. 2502, 2504-06, 65 L.Ed.2d 555 (1980); Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19-20, 101 S.Ct. 2615, 2625-26, 69 L.Ed.2d 435 (1981). ² Defendant obviously read Moore's section 1983 claim as being predicated only on a violation of section 504. That it was not, however, is apparent from a cursory reading of the complaint, as Judge Van Sickle correctly noted. Judge Van Sickle states unequivocally in his November 1983 order that Moore's section 1983 claim is based on alleged violations of due process. App. at 24, 30.

After noting that fact, Judge Van Sickle proceeded to decide, under the Thiboutot-National Sea Clammers analysis, whether the section 1983 claim could be predicated on a violation of section 504 (in addition to the alleged due process violations). App. at 24-30. After holding that the remedial scheme under section 504 was not sufficiently comprehensive to foreclose a section 1983 claim based on a violation of section 504, Judge Van Sickle correctly suggested that Moore would have to amend count I of his complaint if he wished to base his section 1983 claim on a violation of section 504. App. at 24, 30. ³ The reason for this suggestion was obvious--Moore had never pled a violation of section 504 as a basis for his section 1983 claim. Judge Van Sickle, however, made no finding as to the sufficiency of the allegations under count II of the complaint--a claim directly under section 504.

In his September 1984 order dismissing the section 504 claim, Judge Benson misconstrued Judge Van Sickle's suggestion to Moore to amend count I of the complaint. As explained above, Judge Van Sickle's suggestion to amend the complaint referred only to the section 1983 claim under count I and in no way affected the section 504 claim alleged in count II. At no time was the section 504 claim in count II of the complaint discussed by Judge Van Sickle. Judge Benson, however, cited Moore's failure to amend his section 504 claim in count II as justifying the dismissal of that claim for lack of federal subject matter jurisdiction. App. at 31. In doing so, Judge Benson erred.

Count II of Moore's complaint properly states a cause of action directly under section 504 of the Rehabilitation Act of 1973. In Miener v. State of Missouri, 673 F.2d 969, 973-74, 977-79 (8th Cir.), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982), this Court held that individual plaintiffs have an implied private cause of action for damages under section 504. Because the allegations in count II of the complaint state a claim directly under section 504, thus invoking the federal question jurisdiction of the District Court, see 28 U.S.C. Sec. 1331, the court erred in dismissing that count.

III.

In count I of his complaint under section 1983, Moore alleged that he was deprived of property without due process of law and that the school district's action in discharging him was arbitrary, capricious, and in bad faith. Judge Benson construed the complaint as alleging violations of both procedural and substantive due process. After holding an evidentiary hearing to determine whether there existed a jury issue as to either claim, Judge Benson entered sua sponte an order dismissing both claims. At the time of the dismissal there was no motion for summary judgment pending before the District Court. We believe the court erred in dismissing the due process claims under section 1983 in count I of the complaint.

A.

Though a Rule 12(b)(6) motion to dismiss may be treated as a motion for summary judgment under Rule 56 when matters outside the pleadings are considered, see Fed.R.Civ.P. 12(b), that was not the case here. Defendant's motion to dismiss had been denied and finally disposed of by Judge Van Sickle. Thus, there was no pending motion of any kind before the court at the time Judge Benson acted. The sua sponte dismissal of the procedural and substantive due process claims amounted in essence to a grant of summary judgment in favor of defendant. Under the law of this Circuit, that clearly was not proper in the absence of a motion for summary judgment.

Rule 56 of the Federal Rules of Civil Procedure contemplates the entry of summary judgment only after the filing of a motion therefor by one of the parties. Although the district court may assist through pre-trial proceedings in narrowing the issues, the court cannot raise an issue sua sponte and then proceed to decide it without a motion for summary judgment. Although other circuits have permitted a district court to enter summary judgment sua sponte, this Court has taken a position of strict compliance with Rule 56 and its requirement of a ...