Whitner v. Davis

• Decision Date: 03 April 1969
• Docket Number: No. 22285.,22285.
• Citation: 410 F.2d 24
• Parties: Mary Elizabeth WHITNER, a single woman, Appellant, v. Mrs. Frederick W. DAVIS, Roy Patrick Wahle, Archie Wilson, Joseph Panattoni and James Kendall, individually and as Trustees of Central Washington State College; and James E. Brooks, individually and as President of Central Washington State College; John J. O'Connell, individually and as Attorney General, State of Washington; Central Washington State College; and State of Washington, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

410 F.2d 24 (1969)

Mary Elizabeth WHITNER, a single woman, Appellant, v. Mrs. Frederick W. DAVIS, Roy Patrick Wahle, Archie Wilson, Joseph Panattoni and James Kendall, individually and as Trustees of Central Washington State College; and James E. Brooks, individually and as President of Central Washington State College; John J. O'Connell, individually and as Attorney General, State of Washington; Central Washington State College; and State of Washington, Appellees.

No. 22285.

United States Court of Appeals Ninth Circuit.

April 3, 1969.

COPYRIGHT MATERIAL OMITTED

Mary E. Whitner, pro. per.

Thomas K. Dalglish (argued), Asst. Atty. Gen., Ellensburg, Wash., John J. O'Connell, Atty. Gen., Olympia, Wash., for appellees.

Before HAMLEY, MERRILL and HUFSTEDLER, Circuit Judges.

HAMLEY, Circuit Judge:

This litigation is an outgrowth of the dismissal, on June 27, 1966, of Mary Elizabeth Whitner as a member of the faculty of the music department of Central Washington State College (College). Seeking redress, Mrs. Whitner, proceeding in propria persona, brought this action in the United States District Court for the Eastern District of Washington. The named defendants are the individual trustees and president of the College, the College, the state Attorney General, and the State of Washington.

In her complaint, Mrs. Whitner asserted that the district court had jurisdiction under the Federal Anti-Peonage Act, 42 U.S.C. § 1994 (1964), the Civil Rights Act, 42 U.S.C. § 1983 (1964), and various provisions of the Constitution including the First and Fourteenth Amendments. Plaintiff sought damages in the amount of $1,671,000, reimbursement for loss of interest, dividends, matching payments, social security and medicare payments, reimbursement for penalties and fees incurred, a declaration of her rights under the Constitution, and such other and further relief as may be deemed just and equitable.

All of the defendants joined in a motion to dismiss the action for lack of jurisdiction and for failure to state a claim upon which relief can be granted. Insofar as the motion was grounded on failure to state a claim it must be regarded as a motion for summary judgment, since matters outside the pleading were presented by defendants and were not excluded by the court. See Rule 12(b), Federal Rules of Civil Procedure.

The district court granted the motion and dismissed the cause. This appeal followed.

Defendants moved in this court to dismiss the appeal, or affirm on motion, on the ground that the appeal is frivolous. We withheld action on the motion until after oral argument on the appeal. We now deny the motion.

According to the complaint, plaintiff was a member of the faculty of the College from October, 1958, to June 30, 1966, and enjoyed tenure after 1961 as provided for in the Faculty Code of Personnel Policy and Procedure (Code). She had an appointment to teach during both terms of the 1966 summer session and an appointment to teach for the academic year 1966 to 1967. On June 10, 1966, she received a registered letter from the president of the College advising her that, pursuant to section IX-E-1 of the Code, he would recommend to the board of trustees that she be dismissed, effective June 30, 1966. The president's letter set out four charges of unethical and unprofessional conduct, and one charge of insubordination, as the grounds to be relied upon in recommending her dismissal.¹

In the same letter, the president of the College referred to a provision of the Code entitling plaintiff to apply for a hearing before either the "Senate Personnel" committee or the board of trustees, and providing that her failure to apply for a hearing would be construed as acceptance of dismissal. Plaintiff did not apply or a hearing but, instead, wrote a letter to the president of the College explaining why she would not. The board met on June 27, 1966, and approved the recommendation for her dismissal, effective June 30, 1966.²

The order under review does not state the ground or grounds relied upon by the district court in dismissing the action. However, examination of the reporter's transcript of the argument on the motion to dismiss indicates that the district court rested its decision on two grounds: (1) plaintiff failed to exhaust her state court remedies, and (2) she failed to exhaust her state administrative remedies.

We consider first the district court ruling that it lacked jurisdiction because plaintiff had not exhausted her state court remedies. As before noted, plaintiff invoked the Civil Rights Act as one basis for district court jurisdiction.³ This being the case, her failure to allege exhaustion of state court remedies neither defeated subject-matter jurisdiction under that Act, nor constituted a failure to state a claim thereunder. See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492; Dodd v. Spokane County, 9 Cir., 393 F.2d 330, 334; York v. Story, 9 Cir., 324 F.2d 450, 456; Cohen v. Norris, 9 Cir., 300 F.2d 24, 34.

Although the plaintiff did file an action in the Washington state court, arising out of her dismissal from the College faculty, that action was dismissed and the appeal was not prosecuted. The complaint in this case was filed in the federal district court while the state proceedings were pending.⁴ At most, however, the pendency of the state action would allow the district court, applying the doctrine of abstention, to hold the federal suit in abeyance while awaiting the outcome of the state action. It did not entitle the district court to dismiss the action with prejudice for lack of jurisdiction or for failure to state a claim.

We now consider the alternative ground relied upon by the district judge in dismissing this action for lack of jurisdiction, namely, that Mrs. Whitner had failed to exhaust her state administrative remedies.

In actuality, this is not a question of subject-matter jurisdiction. The problem is whether one who has not exhausted an available state administrative remedy can establish a claim under 42 U.S.C. § 1983.

If the state administrative remedy here in question were designed to provide a means of obtaining relief from, or compensation for, a deprivation of civil rights which had already occurred, Mrs. Whitner would not have been required to exhaust it before instituting this civil rights action. See McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, followed in Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20 L.Ed.2d 1319 and Damico v. California, 389 U.S. 416, 88 S.Ct. 526, 19 L.Ed.2d 647.

But the administrative remedy available to Mrs. Whitner was not designed to be remedial in this sense. Instead, it provided a means of forestalling a threatened future deprivation of civil rights. The notice Mrs. Whitner received from the president of the College on June 10, 1966, advising that he would recommend that she be dismissed effective June 30, 1966, did not deprive her of any civil right. Had she taken advantage of the opportunity afforded her to apply for a hearing before the "Senate Personnel" committee or the board of trustees, she might have persuaded College authorities not to discharge her. In that event she would have had nothing to complain about in either a state or federal court.

Instead, Mrs. Whitner expressly declined to apply for such a hearing although she was advised, in accordance with the Code, that failure to apply for a hearing would be construed as acceptance of dismissal. College authorities were thereby deprived of an opportunity to consider any facts or argument she might have been able to submit which conceivably could have led them to retain her on the faculty.⁵

What is said above is said on the assumption that the administrative hearing in question would have provided Mrs. Whitner with a fair opportunity to present her version of the facts and law. The record before us does not reveal the nature and scope of the hearing which was offered to her and in her complaint it is alleged that this administrative proceedure was inadequate and contrary to both state and federal law in numerous respects.

If the administrative remedy designed to forestall a threatened discharge was adequate, Mrs. Whitner's refusal to make use of it constituted an acceptance of the discharge and prevents her from establishing a claim under the Civil Rights Act. This ought not, however, to have been determined on a motion to dismiss for failure to state a claim or on motion for a summary judgment, because the adequacy of the state remedy in question is not ascertainable from this record. It follows that the disposition of this question must await further proceedings in the district court unless the cause was in any event properly dismissed for one or more of the additional reasons urged by defendants, and now to be considered.

Among other things, defendants advance two reasons why, in their view, the district court did not have personal jurisdiction of defendant State of Washington. The first is that the State of Washington has not waived its immunity under the Eleventh Amendment from suit in a federal court by a citizen of the state. The second is that, assuming the Civil Rights Act is an appropriate basis of jurisdiction here, a state is not a "person" within the meaning of 42 U.S.C. § 1983. Both of these reasons are sound.

The Eleventh Amendment immunizes a state from suit in a federal court by a citizen of that state, and this immunity is not affected by the fact that the case may be one arising under the Constitution and laws of the United States. Parden v. Terminal Ry. Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 12 L.Ed.2d 233; Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842; Clark v. State of Washington, 9 Cir., 366 F.2d 678, 680. While a state may waive such immunity, there is nothing to indicate that the State for Washington has done so, at least insofar as actions of the kind now before us are concerned. RCW 4.92.010...