Uberoi v. University of Colorado

Decision Date31 January 1986
Docket NumberNo. 84SA9,84SA9
Parties30 Ed. Law Rep. 934 Mahinder S. UBEROI, Plaintiff-Appellant, v. UNIVERSITY OF COLORADO, a State Institution, William McInerny, Joe Roy, Gary Arai, John Holloway, Richard Tharp, Defendants-Appellees.
CourtColorado Supreme Court

Page 894

713 P.2d 894
30 Ed. Law Rep. 934
Mahinder S. UBEROI, Plaintiff-Appellant,
UNIVERSITY OF COLORADO, a State Institution, William
McInerny, Joe Roy, Gary Arai, John Holloway,
Richard Tharp, Defendants-Appellees.
No. 84SA9.
Supreme Court of Colorado,
En Banc.
Jan. 31, 1986.
Rehearing Denied Feb. 24, 1986.

Page 895

Mahinder S. Uberoi, pro se.

Cooper & Kelley, P.C., Gretchen C. Rau, Ted D. Ayres, Denver, for defendants-appellees.


The plaintiff, Mahinder Uberoi, appeals from the judgment of the Boulder County District Court 1 dismissing the claims for slander, assault, battery, false arrest, civil rights violations, negligence, civil conspiracy, and denial of due process he asserted against the University of Colorado and some of its employees. 2 The trial court gave three reasons for its decision. First, because the University of Colorado and the

Page 896

Regents of the University of Colorado are covered by the Colorado Governmental Immunity Act (Act), 3 Uberoi's failure to give the notice required under the Act barred his tort claims. Second, since the word "persons" in 42 U.S.C. § 1983 does not include states or override traditional concepts of state sovereign immunity, § 1983 provides no relief and, in any event, the eleventh amendment proscribed the plaintiff's claims against the university. Third, because Uberoi's complaint alleges only claims for common law torts, it does not state a claim for relief under 42 U.S.C. § 1983.

We affirm the trial court's dismissal of the tort claims and the dismissal of his 42 U.S.C. § 1983 claim that the defendants negligently deprived him of his right to due process of law under the fourteenth amendment. We hold that: (1) The eleventh amendment is inapplicable to this case; (2) the university is a person under 42 U.S.C. § 1983; and (3) certain of Uberoi's claims alleged in his complaint adequately state claims for relief under § 1983. Therefore, we reverse the order dismissing those claims and remand with directions.


This case is before us to review the trial court's judgment granting the defendants' motion to dismiss filed pursuant to C.R.C.P. 12. Therefore, we deem it appropriate to summarize Uberoi's factual allegations and legal theories contained in his complaint. 4

We first outline the plaintiff's allegations of fact. Uberoi is a resident of the State of Colorado and a United States citizen. Each of the individual defendants is an agent, officer, or employee of the University of Colorado and each is being sued in his individual capacity and as an agent acting within the scope of his duties on behalf of the university at all times material to the complaint.

The complaint arose out of events which occurred on May 12, 1982. On that date, Uberoi went to the office of the defendant William McInerny on the University of Colorado campus at Boulder, and requested records which he claimed were obtainable under the Colorado Open Records Act. 5 The records the plaintiff sought were those pertaining to the Joint Institute for Laboratory Astro Physics. McInerny and his staff did not give Uberoi immediate attention. After about fifteen minutes, Uberoi asked how long it would take before he would receive the records he had requested. A confrontation ensued during which Uberoi alleges McInerny called him names, slammed an office door against him, and repeatedly pushed him. University of Colorado Police Department Officers Roy and Arai were summoned and arrested Uberoi without probable cause. Arai grabbed Uberoi without warning. Uberoi informed Arai that he was a professor at the university and that his purpose in visiting McInerny's office was lawful. Arai kept Uberoi in custody without any purpose or probable cause for approximately one-half hour.

Uberoi later learned that, while the incident was in progress, Roy and McInerny had telephone conversations with the defendant John Holloway, an attorney for the university. During these conversations, these defendants conspired to keep Uberoi confined without probable cause and to obtain statements prejudicial to Uberoi from McInerny's staff. The defendants Roy, Arai, McInerny, and Holloway conspired, maliciously and without probable cause, to cite Uberoi for violating section 18-9-109, 8 C.R.S. (1978), intentional interference with university activities. On information and belief, Uberoi claims that the defendants Holloway and Richard Tharp, another attorney

Page 897

for the university, "are engaged in a continuing conspiracy to frame into unlawful acts plaintiff's lawful requests for inspection of public records."

Uberoi's complaint at issue here sets forth eleven claims for relief. In his first claim, Uberoi states that McInerny slandered him. His second claim is against McInerny and pleads the tort of assault. The third claim, also against McInerny, alleges the tort of battery. In his fourth claim, Uberoi asserts that Arai assaulted him. The fifth claim alleges the tort of battery against Arai. Officers Arai and Roy are charged with false arrest in Uberoi's sixth claim. The seventh claim for relief alleges that the defendants deprived Uberoi of his rights, privileges, and immunities secured to him by the first, fourth, fifth, ninth, tenth, and fourteenth amendments to the United States Constitution, the Constitution of the State of Colorado, and 42 U.S.C. § 1983. The eighth claim generally alleges that the university was negligent in selecting, appointing, training, supervising, and/or retaining the individual defendants. Negligence is also the basis of Uberoi's ninth claim for relief. That claim incorporates by reference the seventh claim and alleges that McInerny was negligent in failing to comply with the requirements of the Open Records Act. Uberoi also asserts that the defendants were negligent when they failed to ascertain that he was not involved in any unlawful activity, negligent in the manner in which he was arrested, and negligent in using inappropriate force during the arrest. The tenth claim for relief states that the defendants have conspired to deprive him of his constitutional rights. Finally, in his eleventh claim for relief, Uberoi alleges the defendants' conduct deprived him of due process of law under the fourteenth amendment to the United States Constitution. The last two claims also incorporate by reference the seventh claim for relief.

Uberoi first filed a complaint in the Boulder District Court on July 8, 1982. He did not serve a copy of that complaint on any of the defendants. Approximately ten months later, on May 9, 1983, Uberoi filed a second complaint with the district court and, this time, served the defendants.

Uberoi raises a number of issues on appeal. However, the resolution of the following four principal issues disposes of all his pertinent arguments: (1) Whether the Colorado Governmental Immunity Act, §§ 24-10-101 to -118, 10 C.R.S. (1982 & 1985 Supp.), applies to the University of Colorado; (2) whether the eleventh amendment bars the plaintiff from bringing suit against the University of Colorado under 42 U.S.C. § 1983; (3) whether the University of Colorado is a "person" under 42 U.S.C. § 1983; and (4) whether the plaintiff sufficiently pleaded a claim for relief under 42 U.S.C. § 1983 to withstand the defendants' motion to dismiss for failure to state a claim upon which relief may be granted.


Uberoi contends that the Governmental Immunity Act does not apply to the university or its board of regents. The thrust of his argument is that the university is not a "public entity" within the meaning of the Act. We reject his argument.

The pertinent portion of the purpose section in the Act states:

It is further recognized that the state, its political subdivisions, and the public employees of such public entities, by virtue of the services and functions provided, the powers exercised, and the consequences of unlimited liability to the governmental process should be liable for their actions and those of their agents only to such an extent and subject to such conditions as are provided by this article.

§ 24-10-102, 10 C.R.S. (1982) (emphasis added). The Act defines "public entity" as:

the state, county, city and county, incorporated city or town, school district, special improvement district, and every other kind of district, agency, instrumentality, or political subdivision of the state organized pursuant to law.

Page 898

§ 24-10-103(5), 10 C.R.S. (1982). Moreover, the word "university" is specifically mentioned in the Act:

A claim against the state may be compromised or settled for and on behalf of the state by the attorney general, with the concurrence of the head of the affected department, agency, board, commission, institution, hospital, college, university, or other instrumentality thereof.

§ 24-10-112(1), 10 C.R.S. (1982) (emphasis added).

The University of Colorado is established and governed by a combination of constitutional and statutory provisions. The university is created as a state institution of higher education by the Colorado Constitution. Colo. Const. art. VIII, § 5(1). Similarly, its "body politic," the board of regents of the university, is established by the constitution. Colo. Const. art. IX, § 12. See also Sigma Chi Fraternity v. Regents of University of Colorado, 258 F.Supp. 515, 528 (D.Colo.1966). The constitution provides that "[t]he governing boards of the state institutions of higher education, whether established by this constitution or by law, shall have the general supervision of their respective institutions and the exclusive control and direction of all funds of and appropriations to their respective institutions, unless otherwise provided by law." Colo. Const. art. VIII, § 5(2). Section 23-20-111, 9 C.R.S. (1973 & 1983 Supp.), confers on the regents the "general supervision of the university and control and direction of all funds of and appropriations to the university...." The general powers to...

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