Smith v. Plati

• Decision Date: 22 July 1999
• Docket Number: Civ. A. No. 99-K-491.
• Citation: 56 F.Supp.2d 1195
• Parties: Theodore M. SMITH Plaintiff, v. David PLATI, individually and in his official capacity as Assistant Athletic Director for Media Relations of the University of Colorado; the University of Colorado; and the Regents of the University of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

56 F.Supp.2d 1195

Theodore M. SMITH Plaintiff, v. David PLATI, individually and in his official capacity as Assistant Athletic Director for Media Relations of the University of Colorado; the University of Colorado; and the Regents of the University of Colorado, Defendants.

Civ. A. No. 99-K-491.

United States District Court, D. Colorado.

July 22, 1999.

COPYRIGHT MATERIAL OMITTED

Theodore M. Smith, Denver, CO, pro se.

Joanne M. McDevitt, Stephen Zweck-Bronner, David P. Temple, Office of University Counsel, Denver, CO, for Regents of University of Colorado, David Plati.

Kevin Kuhn, Patrick T. O'Rourke of Montgomery, Little & McGrew, P.C., Englewood, CO, for David Plati.

MEMORANDUM OPINION AND ORDER ON PENDING MOTIONS TO DISMISS

KANE, Senior District Judge.

The Plaintiff, Theodore M. Smith, filed this case in the District Court, Boulder County, Colorado, on February 19, 1999. Defendants removed it to this court on March 11, 1999. Jurisdiction exists over the third claim for relief under 28 U.S.C. § 1331 (federal question) and 42 U.S.C. § 1983¹ (civil rights). Supplemental jurisdiction exists under 28 U.S.C. § 1367 over the pendent state claims, the first and second claims for relief.²

Smith is a lawyer appearing pro se. He operates an Internet website known as "Netbuffs.com," which supplies information about University of Colorado varsity athletic programs to the general public. The website began operating on September 2, 1997. Defendant David Plati (Plati) is Assistant Athletic Director for Media Relations at the University of Colorado at Boulder. The University of Colorado, a state higher education entity, is governed by the Regents of the University of Colorado (together, the University).

Smith claims (1) Plati, in his individual and official capacities, arbitrarily and capriciously denied him and Netbuffs.com "media" status at the University of Colorado and seeks an order under Colorado Rules of Civil Procedure Rule 106³ declaring that he be recognized as "media" and "press" by Plati and the University; (2) Plati, individually and officially, and the University denied him records that are subject to disclosure under the Colorado Open Records Act, Colo.Rev.Stat. § 24-72-201 et seq. (1998)⁴ and seeks a mandatory injunction requiring the University to provide him with certain records and documents; and (3) Plati, individually and officially, deprived him of "rights and privileges and enjoyment in retaliation for Smith's publication on the Internet," (Second Am. Compl. ¶ 29), and seeks compensatory and exemplary damages against Plati, as well as injunctive relief.

On March 11, 1999, the University filed a motion to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1) (for lack of subject matter jurisdiction) or 12(b)(6) (for failure to state a claim). On March 16, 1999, Plati, in his individual capacity, followed suit and filed a motion to dismiss under the same rules of federal procedure. In the interim, I granted Smith leave to depose Plati to elucidate the issue of qualified immunity. The deposition was taken on May 13, 1999. Following the deposition, Smith and Plati filed supplemental briefs. Smith did not, however, seek permission to file a further amended complaint. I heard oral argument on the motions to dismiss on June 23, 1999. For the reasons stated below, I grant the motions.

I. Factual Allegations.

The dispute between Smith and Plati centers on whether the Office of Athletic Media Relations for the University of Colorado must allow Smith access to information about its varsity sports programs so he can effectively operate his website.

According to Smith, from the time of the inception of his website until approximately August 1998, the University provided him with the same access and privileges afforded to members of the press. This allowed him ample opportunity to take photographs, interview players and coaches, and copy documents which he could then post on his Internet website. Starting in August 1998, however, Plati purportedly began a course of conduct designed to limit Smith's access to publishable information. Specifically, Smith avers, Plati (1) denied him resources and documents routinely given to members of the press; (2) required payment for schedules, press releases, and photographs ordinarily given freely to other members of the public; (3) prevented the distribution of notices advertising Netbuffs.com; (4) threatened to copyright basic information such as varsity sports schedules; and (5) attempted to dissuade his attorney from defending him in a related criminal action. (Second Am. Compl. ¶ 15.)

II. Applicable Standard for Motion to Dismiss.

Defendants assert this case must be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction because they are both immune from suit in civil action. The University claims (1) it is not a "person" for the purposes of 42 U.S.C. § 1983, and therefore does not fall under the statute's auspices, and (2) the Eleventh Amendment bars Smith from seeking either damages or injunctive relief. Plati argues he is entitled to qualified immunity because his actions were taken on behalf of the University in the course and scope of his duties as Assistant Athletic Director for Media Relations. Both the University and Plati contend their immunity defenses bar this court, or any other, from asserting subject matter jurisdiction over this case.

Alternatively, Defendants seek dismissal of the complaint for failure to state a claim under Rule 12(b)(6). Dismissal is appropriate under Rule 12(b)(6) "only when it appears that the plaintiff can prove no set of facts in support of the claims that would entitle him to relief, accepting the well-pleaded allegations of the complaint as true and construing them in the light most favorable to the plaintiff." Yoder v. Honeywell Inc., 104 F.3d 1215, 1224 (10th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 55, 139 L.Ed.2d 19 (1997). The University and Plati assert, since the Eleventh Amendment and the doctrine of qualified immunity respectively protect them from actions performed in an official capacity, no set of facts presented by Smith, in support of his three claims, entitles him to relief.

In considering a motion to dismiss, the task is necessarily limited. One should not consider whether the plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims. "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, 40 L.Ed.2d 90 (1973).

Additionally, as Smith is proceeding pro se, I must construe his complaint and other filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). "The Tenth Circuit has considered this to mean that if the court can reasonably read the pleading to state a valid claim on which the plaintiff could prevail, it should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Griego, 896 F.Supp. 1043, 1046 (D.Colo. 1995) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991)).

III. Merits.

The Second Amended Complaint is not a model of clarity. It does not differentiate the claims alleged against Plati in his official capacity from those against him in his individual capacity. At oral argument, Smith indicated he intended to sue Plati in his official capacity on all three claims. Although the motion to dismiss by Plati in his individual capacity addresses both the first and third complaints, at oral argument, counsel for Plati stated the only claim pled against Plati in his individual capacity was the third claim under 42 U.S.C. § 1983. Smith did not contest this assertion; however, applying a liberal pleading standard, I address both the first and third claims as against Plati individually. Accordingly, I address claims one and two as they apply to the University; claims one, two, and three as they apply to Plati in his official capacity; and claims one and three against Plati in his individual capacity.

A. University.

Smith names the University as a Defendant under his first and second claims for relief. I find the Eleventh Amendment entitles the University to absolute immunity on these claims.

The Eleventh Amendment reads: "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." This amendment embodies the principle of sovereign immunity and is a constitutional limitation on the federal judicial power established in Article III of the Constitution. It prohibits suits brought by citizens against their own states, as well as those brought by citizens of other states, without the consent of the state itself. Alden v. Maine, ___ U.S. ___, 119 S.Ct. 2240, 2251, ___ L.Ed.2d. ___ (1999) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). Additionally, a suit against a state is barred regardless of whether it seeks damages or injunctive relief. Cory v. White, 457 U.S. 85, 91, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982).

Eleventh Amendment immunity may be waived. However, waiver is only recognized "where stated by the most express language or by such overwhelming implication from the test [of a state statute or constitution] as [will] leave no room for any other reasonable construction." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 239-40, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985).

Difficulties sometimes arise in determining whether a particular suit in fact is a suit against a state. It...