Morrow v. Sudler, Civ. A. No. 80-C-462.

• Decision Date: 31 December 1980
• Docket Number: Civ. A. No. 80-C-462.
• Citation: 502 F. Supp. 1200
• Parties: Joseph T. MORROW, Plaintiff, v. Barbara Welch SUDLER, Individually; William H. Hornby, Individually; and The State Historical Society of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

502 F. Supp. 1200

Joseph T. MORROW, Plaintiff, v. Barbara Welch SUDLER, Individually; William H. Hornby, Individually; and The State Historical Society of Colorado, Defendants.

Civ. A. No. 80-C-462.

United States District Court, D. Colorado.

November 24, 1980.

On Motion to Reconsider December 9, 1980.

Modified Order on Motion to Reconsideration December 31, 1980.

COPYRIGHT MATERIAL OMITTED

David E. Engdahl, Engdahl & Renzo, P. C., Denver, Colo., for plaintiff.

Jo Ann Soker, Asst. Atty. Gen., Nancy Connick, Denver, Colo., for defendants.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

I. Posture of the Case.

THIS MATTER is before the Court on the defendants' motion to dismiss. Defendants are the State Historical Society of Colorado (the "Society") and two individuals, Barbara Welch Sudler and William H. Hornby. Plaintiff Joseph T. Morrow, suing under 42 U.S.C. § 1983, seeks redress for dismissal from his post as Curator of Material Culture for the Society. He alleges that the defendants, acting under color of state law, have deprived him of liberty and property protected by the Fourteenth Amendment.

Defendants argue that Morrow's claims are barred by the Eleventh Amendment. Defendants also argue that Section 1983 affords Morrow no relief against them since they are not "persons" within the meaning of that section. Lastly, they argue that Morrow has failed to state a claim for relief against any of them.

"When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admission, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

II. Eleventh Amendment Immunity.

The Eleventh Amendment provides:

"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."

Although the Eleventh Amendment, read literally, does not seem to bar one from suing the state in which he is a citizen, it has been construed to protect states from federal court actions by their own citizens. Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). Therefore, the fact that Morrow is a citizen of Colorado does not prevent the defendants from pleading Eleventh Amendment immunity.

The simplest way for a plaintiff to confront the Eleventh Amendment bar is to name the State as a defendant. See Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Morrow has not here named the State of Colorado as a defendant. Nor has he named any of the three primary branches of the state government as defendants. Cf. Coopersmith v. Supreme Court, State of Colorado, 465 F.2d 993 (10th Cir. 1972). Our research has found nothing to indicate that the State of Colorado has cloaked the defendants with either its sovereign immunity or its Eleventh Amendment immunity. Cf. Prebble v. Brodrick, 535 F.2d 605 (10th Cir. 1976).

The Supreme Court has recently held that when the State itself is not a named party, the essential inquiry for purposes of the Eleventh Amendment is whether the relief sought against the defendants involves the awarding of funds which "must inevitably come from the general revenues of the (State)." Edelman v. Jordan, 415 U.S. at 665, 94 S.Ct. at 1356. An award which must be paid from the State's general revenues amounts in essence to an award of damages against the State, and, therefore, it is barred by the Eleventh Amendment. Id.

Morrow seeks compensatory damages, reinstatement, back pay, attorney's fees, and punitive damages against all the defendants. Sudler and Hornby are named in their individual capacities to answer for acts committed under color of state law. Any recovery of damages against them would have to be paid from their own funds, because their status as state officials does not provide them Eleventh Amendment immunity. Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Of course their having acted as state officials is a necessary element of Morrow's claim against them, since Section 1983 relief is available only where the act complained of is done under color of state law. Nevertheless, Sudler and Hornby are not shielded from personal liability by the Eleventh Amendment.

The defendant Society's status poses a more difficult problem. It is not shielded from a judgment awarding reinstatement. Reinstatement, being prospective injunctive relief, does not require any payment from the State treasury. Under the Edelman test, a claim for reinstatement is not barred by the Eleventh Amendment.

Morrow's claims for monetary relief, however, may be barred by the Eleventh Amendment. This depends on whether funds to pay a judgment for damages against the Society necessarily would come from the State's general revenues.

The Society occupies a unique status under Colorado law. Though first incorporated as a private entity, it was "adopted" by the State in the early part of this century. Presently, it is treated as a state educational institution. § 24-80-201, C.R.S. 1973. Subject to Article XII section 13 of the State Constitution, it has authority to appoint its employees and fix their salaries. § 24-80-204, C.R.S. 1973. The Society may accept gifts. § 24-80-206, C.R.S. 1973. Funds received as gifts must be kept separate for the sole use of the Society. § 24-80-207, C.R.S. 1973. These statutes, considered in light of the Society's corporate capacity to sue or be sued as an independent entity, indicate that damages awarded against the Society could be paid out of funds not derived from the State.

However, the Society president is required to make an annual report to the Governor and the General Assembly. § 24-80-203, C.R.S. 1973. It receives some of its funding from the State. § 24-80-211, C.R.S. 1973. Title to any property acquired in any way by the Society, including donations, is vested in the State. § 24-80-209, C.R.S. 1973. The Society holds, as trustee for the State, not only funds appropriated to it by the State but also funds and property it receives as donations. § 24-80-202, C.R.S. 1973.

The modern application of the Eleventh Amendment may be seen in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). There, the Supreme Court held that the Eleventh Amendment barred federal court jurisdiction to award retrospective damages against a state agency when those damages had to be paid from state general revenues. The Eleventh Amendment thus protects state funds in order to prevent the federal courts from interfering with a state's internal fiscal operations. In discussing the public aid benefits at issue in Edelman, the Court said:

"Where the State has a definable allocation to be used in the payment of public aid benefits, and pursues a certain course of action such as the processing of applications within certain time periods as did Illinois here, the subsequent ordering by a federal court of retroactive payments to correct delays in such processing will invariably mean that there is less money available for payments for the continuing obligations of the public aid system." 415 U.S. at 666, n. 11, 94 S.Ct. at 1357, n. 11.

In the instant case, some of the Society's revenues come from state appropriations, and some from private donations. The Edelman doctrine clearly prevents any judgment of this Court from reaching funds appropriated by the State. However, funds received by the Society from donors obviously are not derived from state revenues. Though title to these donated funds is held by the State, they are set aside for the sole use of the Society and kept in a separate account. § 24-80-207, C.R.S. 1973. A judgment of this Court awarding damages against the Society, but limiting the source for collecting those damages to the funds held in the separate account, will not impair the State's budgetary decisions. Nor will such a judgment affect any other state agency.

Unlike typical state agencies, the Society is free to strike out on its own to raise funds from private benefactors to meet obligations. Colorado taxpayers will not see part of their tax money taken away from other state programs to make up for funds used to pay any potential judgment of this Court. Consequently, the defendants' motion to dismiss all claims against them on the grounds that they are shielded by the Eleventh Amendment is denied. However, if any judgment should be awarded against the Society it will have to be collected from non-state funds.

III. Section 1983.

Defendants also move to dismiss on the grounds that none of them are "persons" within 42 U.S.C. § 1983.¹ The statute creates a claim for relief against any "person" acting under color of state law who causes deprivation of another's civil rights.

Morrow has alleged that Sudler and Hornby violated his Fourteenth Amendment right to procedural due process by terminating his employment as they did. Defendants argue that Sudler and Hornby are not "persons" within the meaning of Section 1983 since they were acting in their official capacities as officers and employees of the Society. This defense has no merit. Morrow's Section 1983 claim must allege that the defendant deprived him of civil rights while acting under color of state law. Therefore, the defendants' motion to dismiss Morrow's claims...