Wolfe v. O'NEILL, F-13-71.

• Citation: 336 F. Supp. 1255
• Decision Date: 06 January 1972
• Docket Number: No. F-13-71.,F-13-71.
• Parties: Hilton WOLFE, Plaintiff, v. William A. O'NEILL et al., Defendants.
• Court: U.S. District Court — District of Alaska

336 F. Supp. 1255

Hilton WOLFE, Plaintiff, v. William A. O'NEILL et al., Defendants.

No. F-13-71.

United States District Court, D. Alaska.

January 6, 1972.

COPYRIGHT MATERIAL OMITTED

Stephen C. Cowper, Fairbanks, Alaska, for plaintiff.

Howard Staley, Merdes, Schaible, Staley & DeLisio, Fairbanks, Alaska, Irving Bertram, Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, Alaska, for defendants.

MEMORANDUM AND ORDERS

VON DER HEYDT, District Judge.

This cause is brought by plaintiff, Hilton Wolfe, pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 et seq. Plaintiff resides in Fairbanks, Alaska, and was employed by the University of Alaska as an Assistant Professor of English. Defendants in this action are the University of Alaska, the President of the University, and its Board of Regents, individually and as members of the Board. The University of Alaska is a public corporation which under Alaska Statute may be sued. William R. Wood is the duly appointed President of the University of Alaska. William A. O'Neill, Robert E. McFarland, Vide Bartlett, Hugh B. Fate, Jr., and James Nolan, A. D. Robertson, Edith Bullock, and Brian Brundin are all members of the Board of Regents.

Plaintiff was employed by the defendants as Assistant Professor of English from September, 1969, until May 31, 1971. Plaintiff alleges that during the time of his employment there were implied regulations and standards governing nontenured employees in relation to reemployment. Further, defendant asserts that these express and implied regulations created a reasonable expectation of reemployment for the following school year.

On December 15, 1970, plaintiff received a letter from the University of Alaska notifying him that his employment was not to be continued after May 31, 1971. The letter did not explain reasons why plaintiff's employment was being terminated. Subsequently, plaintiff brought an appeal to Dr. Donald R. Theophilus, Academic Vice President of the University. Dr. Theophilus declined to reverse the decision concerning plaintiff's reemployment. Plaintiff then requested review by the University Grievance Committee. The Grievance Committee first recommended that plaintiff's employment be terminated and then later reversed its findings and advised that Wolfe be retained. Both of these findings were filed with President Wood. After review, President Wood decided that plaintiff's employment be terminated. Plaintiff next requested in writing a hearing before the Board of Regents of the University of Alaska. He was allowed to present oral argument at that hearing. The Board of Regents unanimously affirmed the decision of the President of the University.

Plaintiff alleges in Count I of his complaint that his employment was terminated as Assistant Professor of English because he exercised his right of free speech, as guaranteed by the First and Fourteenth Amendments of the Constitution of the United States, thereby depriving him of certain rights, privileges, and immunities secured by the Constitution. Count II of plaintiff's complaint charges that his employment was terminated without statement of reasons for such discharge. Plaintiff also alleges that he was not afforded a proper hearing upon the issue of whether he was discharged for exercising his constitutional rights, that he was not afforded an adversary hearing on the reasons for his discharge, and that he was not furnished with ascertainable standards for his employment. This, plaintiff contends, deprived him of his rights, privileges, and immunities secured by the Constitution, and due process of law and due protection of the laws as set forth in the Fourteenth Amendment to the Constitution of the United States.

Plaintiff seeks only equitable relief. He prays for an order reinstating him to his previous employment status as Assistant Professor of English at the University of Alaska. Further he requests that the defendants be enjoined from enforcing the termination of his employment, and that the defendants be forever enjoined from depriving him of his rights as guaranteed under the Constitution of the United States.

Numerous motions have been filed which are before the Court. They are:

1. Defendants move to dismiss the complaint for want of jurisdiction, alleging that they are not proper parties to an action brought under 42 U.S.C. § 1983.

2. Defendants move to dismiss for failure to state a claim upon which relief can be granted.

3. Defendants move for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure.

4. Defendants move for an extension of time to respond to plaintiff's motion for summary judgment.

5. Defendants William A. O'Neill, Robert E. McFarland, Vice Bartlett, Hugh B. Fate, Jr., James Nolan, A. D. Robertson, Edith Bullock, and Brian Brundin, move that they be dismissed as individuals from this action.

6. Plaintiff moves to strike the motion to dismiss of the members of the Board of Regents as individuals.

7. Plaintiff moves for a pre-trial conference. These motions will be considered in the order set forth above.

1. MOTION TO DISMISS FOR WANT OF JURISDICTION

Defendants allege that the Court lacks jurisdiction over them because they are not "persons" within the meaning of 42 U.S.C. § 1983. That section reads:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

It is well established that in a suit for damages a State is not a person within the meaning of Section 1983. Whitner v. Davis, 410 F.2d 24, 29 (9th Cir. 1969); Williford v. People of California, 352 F. 2d 474, 476 (9th Cir. 1965); Sires v. Cole, 320 F.2d 877, 879 (9th Cir. 1963). See Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

The University of Alaska, a corporation created by the State Constitution, the President of the University of Alaska, and the Board of Regents of the University of Alaska, assert that they are not "persons" within the meaning of 42 U.S.C. § 1983, and therefore would not be proper parties to a suit brought against them. Sellers v. Regents of University of California, 432 F.2d 493, 500 (9th Cir. 1970); Bennett v. People of California, 406 F.2d 36, 39 (9th Cir. 1969); cert. den., 394 U.S. 966, 89 S.Ct. 1320, 22 L.Ed.2d 568 (1969); Ocasio v. Bryan, 374 F.2d 11, 13 (3rd Cir. 1967).

The Supreme Court of the United States, Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) prohibited suits for damages against municipalities under Section 1983. The Court held that a municipal corporation was not a "person" within the meaning of 42 U.S.C. § 1983, thus conferring immunity upon political subdivisions for actions claiming damages. Plaintiff contends, however, that the Supreme Court did not except political subdivisions from suit under Section 1983 when equitable relief is requested. And, as plaintiff urges, this is a suit for equitable relief and not one for damages. Plaintiff asserts that the policy reasons for exempting municipalities from the scope of Section 1983 when damages are sought does not exist when only equitable relief is requested.

In Harkless v. Sweeny Independent School District, 427 F.2d 319, 323 (5th Cir. 1970) the Circuit Court thoroughly discussed Monroe v. Pape and found a distinction between cases requesting damages and those asserting only equitable relief. The Court held that where equitable relief was sought the School District was included within the meaning of "person" as provided by Section 1983.

In Abel v. Gousha, 313 F.Supp. 1030 (E.D.Wis.1970) plaintiff brought a complaint alleging that she was discharged from her employment as a teacher in the Milwaukee public schools because she was a party to certain demonstrations. She claimed that her discharge was in violation of her right to freedom of speech under the First and Fourteenth Amendments to the Constitution. Defendants moved for a judgment on the pleadings, alleging that they were not "persons" under 42 U.S.C. § 1983. The Court held,

"Insofar as the complaint seeks damages against the school board, the action must fail since the school board is not a person within the meaning of 42 U.S.C. § 1983. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). However, the plaintiff also demands reinstatement to her position as a teacher, and such action for relief is not foreclosed by Monroe v. Pape." 313 F.Supp. at 1031. Emphasis Added.

Other courts have also allowed suit under 42 U.S.C. § 1983 when the action was for equitable relief rather than damages. See, Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th Cir. 1969); Adams v. City of Park Ridge, 293 F.2d 585, 587 (7th Cir. 1961); Local 858 of A. F. of T. v. School District No. 1 in County of Denver, 314 F.Supp. 1069, 1074 (D.Colo.1970); Service Employees International Union, A.F.L.-C.I.O. v. County of Butler, Pa., 306 F.Supp. 1080, 1083 (W.D.Pa.1969).

Plaintiff in the case at bar requests equitable relief. He requests that his position as Assistant Professor of English at the University of Alaska be reinstated and that the defendants be enjoined from depriving him of his rights as guaranteed under the Constitution of the United States. This is not a suit for damages.

This Court finds that for alleged equitable relief the University of Alaska, William R. Wood, President of the University of Alaska, and the Board of Regents of the University of Alaska are "persons" within the meaning of 42 U. S.C. § 1983 and that it does have jurisdiction over the cause of action.¹

The President and the Board of Regents as public officers allege that they are not liable for acts...