Phelps v. Washburn University of Topeka, Civ. A. No. 84-4225-S.

• Decision Date: 01 April 1986
• Docket Number: Civ. A. No. 84-4225-S.
• Citation: 632 F. Supp. 455
• Parties: Katherine PHELPS, et al., Plaintiffs, v. WASHBURN UNIVERSITY OF TOPEKA, et al., Defendants.
• Court: U.S. District Court — District of Kansas

632 F. Supp. 455

Katherine PHELPS, et al., Plaintiffs, v. WASHBURN UNIVERSITY OF TOPEKA, et al., Defendants.

Civ. A. No. 84-4225-S.

United States District Court, D. Kansas.

April 1, 1986.

COPYRIGHT MATERIAL OMITTED

Fred W. Phelps, Sr., Phelps Chtd., Fred W. Phelps, Jr., Topeka, Kan., for plaintiffs.

Richard H. Seaton, Everett, Seaton & Knopp, Manhattan, Kan., Arthur E. Palmer, Marla J. Luckert, Goodell, Stratton, Edmonds & Palmer, Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants' motion to dismiss. Defendants base their motion on two grounds. First, plaintiffs' complaint restates allegations previously made in two other suits before this court. Second, plaintiffs have failed to state a claim upon which relief can be granted.

This action involves allegations by plaintiffs that they have been discriminated against in denial of their application for law school admission on the grounds of reverse discrimination, plaintiffs' association with minorities, and in retaliation of a civil rights suit filed by plaintiffs against defendants. In the present suit, plaintiffs also allege that defendants wrongfully denied plaintiffs their right to a grievance process.

The court will first address defendants' contention that plaintiffs' claims should be barred by the doctrine of res judicata. The doctrine of res judicata includes both "claim preclusion" and "issue preclusion." Res judicata seeks to bar subsequent actions between parties on matters, the merits of which the parties have previously litigated. Guarantee Acceptance Corp. v. Fidelity Mortgage Investors, 544 F.2d 449 (10th Cir.1976); Thompson-Hayward Chemical Co. v. Cyprus Mines Corp., 8 Kan.App. 487, 660 P.2d 973, 975 (1983). This long-established doctrine is based on a policy of preventing endless or repetitive litigation by effectively coercing the plaintiff to present all of his grounds for recovery in the first proceeding. Spence v. Latting, 512 F.2d 93 (10th Cir. 1975). Res judicata bars relitigation of claims for relief by the parties which have once been litigated and resulted in a final judgment, as well as claims that should have been litigated in the first action but were not. Vance v. State of Utah, 744 F.2d 750, 752 (10th Cir.1984). The principle of res judicata bars relitigation of the same claim even where a new theory is advanced as a basis of relief in the second suit. United States v. Stuart, 689 F.2d 759, 762 (8th Cir.1982). See e.g. Brown v. Felsen, 442 U.S. 127, 131-32, 99 S.Ct. 2205, 2209-10, 60 L.Ed.2d 767 (1978).

The court notes that in a prior action brought by the parties, Phelps v. Washburn University, No. 83-4198 (filed July 1, 1983) hereinafter Phelps I, plaintiffs stated a cause of action for denial of admission to Washburn University School of Law in violation of 42 U.S.C. § 1981, § 1983, § 1985, and § 2000e and the first and fourteenth amendments. Specifically, plaintiffs claimed they were discriminated against in retaliation of plaintiffs' association with minorities. In paragraph 9(h) of the plaintiffs' previous complaint filed in Phelps I, plaintiffs stated that defendants utilized grievance procedures in bad faith. On June 5, 1984, a second complaint, Phelps v. Washburn, No. 84-4199 hereinafter Phelps II, was filed against the same defendants alleging a cause of action pursuant to 42 U.S.C. § 1981, § 1983, § 1985(2), and the first and fourteenth amendments. The basis for such claims was defendants' alleged denial of plaintiffs' admissions to law school on the basis of reverse discrimination, association with minorities, and retaliation for plaintiffs filing a lawsuit. No allegation as to the denial of a grievance procedure was contained in the complaint in Phelps II. A final judgment was entered by the Honorable Judge Theis in Phelps I on February 10, 1986, 632 F.Supp. 455, granting defendants' motion for summary judgment.

After comparing the complaint in Phelps I with the action filed in the present suit Phelps III, the court finds that res judicata should bar plaintiffs from relitigating some of their claims. The defendants correctly state that with the exception of the allegation of the defendants' denial of a grievance process and an allegation of reverse discrimination in Phelps III, the complaints state virtually the same claim for relief. But plaintiffs state that the heart of this action (Phelps III), is the denial of the grievance process due to plaintiffs filing a lawsuit. Further, plaintiffs claim that their claims relating to discrimination in the admissions process should remain as a means of showing background for the denial of the grievance procedure. The court finds this argument to be meritless. The court finds that the doctrine of res judicata effectively bars all claims alleged by the plaintiffs relating to discrimination in the denial of plaintiffs' admissions to law school.

As to plaintiffs' claims of discrimination with regard to defendants' denial of the grievance procedure, the court, in an abundance of caution, finds that res judicata does not bar such a claim. When viewing plaintiffs' complaint in the most favorable light, the court cannot state with certainty that this cause of action accrued prior to Phelps I and could have been litigated at that time. The court is uncertain whether plaintiffs are claiming a denial of the grievance procedure based on plaintiffs' filing of the Phelps I case. Therefore, the court finds that plaintiffs' claim relating to the denial of a grievance process should not be barred by the doctrine of res judicata.

The court will next address defendants' contention that plaintiffs' claim for denial of a grievance procedure does not state a claim for relief. As a side note, the court would like to cite the discrepancy between plaintiffs' allegation in this action with the finding by the Honorable Judge Theis in his Memorandum and Order dated February 10, 1986. In his Memorandum and Order in Phelps I, Judge Theis made extensive factual findings as to the full and adequate opportunity that the plaintiffs had to take complete advantage of and participate in the grievance procedure offered by the defendants after their denial of admission into law school. See Phelps v. Washburn, 632 F.Supp. 455 (D.Kan.1986). The court finds Judge Theis' findings to be incongruous with the plaintiffs' allegations that they were denied access to the grievance process. Regardless, the court must not consider the merits of plaintiffs' claims at this time.

Plaintiffs claim that a denial of the grievance process violates the due process clause of the fourteenth amendment. To state a claim under the due process clause, the plaintiffs must allege a deprivation of life, liberty, or property. The courts are in agreement that an expectation of receiving process, is not, without more, a liberty or property interest protected by the due process clause of the fourteenth amendment. See Olim v. Wakinekona, 461 U.S. 238, 250 n. 12, 103 S.Ct. 1741, 1748 n. 12, 75 L.Ed.2d 813 (1983). Therefore, plaintiffs must have a property or liberty interest to state a cause of action under the due process clause. As Judge Theis states in Phelps I, "the admission to a professional school is a privilege and not, standing alone, a constitutional or property right, subject to the exception that the rules and regulations for admission are not discriminatory, arbitrary or unreasonable. Flemming v. Adams, 377 F.2d 975, 977 (10th Cir.), cert. denied, 389 U.S. 898 88 S.Ct. 219, 19 L.Ed.2d 216 (1967)." Id. at 41-42.

The court finds that upon a review of the case law, denial of admission, and a resulting denial of a grievance process, without an underlying charge of dishonesty or publication of reasons for such denial, does not rise to a liberty interest. See Selman v. Harvard Medical School, 494 F.Supp. 603, 619 (S.D.N.Y.1980). Further, it is well settled that a person does not have a property interest in admission to law school. Id. at 619. The plaintiffs state, however, that they have property rights in participating in the grievance process because the existing rules and regulations of Washburn grant them a legitimate claim of entitlement to the grievance process. The plaintiffs cite case law to support their proposition that the existence of rules and regulations calling for a hearing may rise to a level stating a cause of action for a deprivation of plaintiffs' property interest. See Plaintiffs' Response to Defendants' Motion to Dismiss, slip op. at 6-7.

The court finds that the facts in the cases cited to be inapposite with the facts in the case at hand. A majority of the cases cited by plaintiffs dealt with a teacher's right to continued employment and that teacher's right to a pre-termination hearing. The court finds it cannot extend the holdings or dicta in those cases to a situation such as this involving a student's expectation of admittance to law school. The court finds that it would be stretching case law too thin to elevate a university's rules governing grievance procedures for denial of admission to the point where they create a property interest protected under the fourteenth amendment. Thus, the court finds that plaintiffs' complaint does not state a cause of action under the due process clause of the fourteenth amendment.

Plaintiffs allege a violation of 42 U.S.C. § 1981. Judge Theis in Phelps I held that the plaintiffs' claim of protected status under section 1981 due to plaintiffs' association with a protected class did not state a cause of action under section 1981. See Phelps v. Washburn, 634 F.Supp. 556, 570-71 (D.Kan.1986). Therefore, plaintiffs' section 1981 claim must be based on their race. The plaintiffs' complaint may be read to state that plaintiffs were denied the grievance process because of their race, and such conduct of defendants constituted invidious discrimination.

Section 1981 reads in part: "All persons...