Opinion
Case No. 99-NC-133 K
October 5, 2000.
REPORT AND RECOMMENDATION
The plaintiff, J.O. Chenault, brought this suit against Brenda S. Broadbent, Mae M. Taylor, employees of the Utah State Office of Education, the Utah State Office of Education (USOE) and the State of Utah under 42 U.S.C. § 1983. Her complaint was filed by paying the filing fee. Mae M. Taylor is alleged to be the director of the USOE.
The plaintiff alleged a claim for "discrimination" by the actions of Mae Taylor. She alleges that Broadbent and Taylor conspired to put unidentified degrading, detrimental and false information in plaintiff's evaluation. Plaintiff also alleged different treatment from others in her office of the same position. Specific acts of alleged misconduct are asserted against the individual defendants.
The defendants filed an answer. Thereafter, the defendants made a motion for judgment on the pleadings (File Entry # 16). The motion asserts the State of Utah, USOE, and the individual defendants are immune from suit in their official capacities by virtue of the Utah Governmental Immunity Act; that the State of Utah, the USOE and individual defendants in their official capacity may not be sued in this court by virtue of the Eleventh Amendment; that such entitles and persons are not "persons" within the definition of 42 U.S.C. § 1983, and that the individual defendants are immune and state law claims are barred for various reasons. The plaintiff has not alleged any state law claims as such.
The case has been referred to the magistrate judge under 28 U.S.C. § 636 (b)(1)(B). This report and recommendation is submitted pursuant to the reference on defendants' motion for judgment on the pleadings.
State Law Claims
The plaintiff's complaint is based exclusively on 42 U.S.C. § 1983 and § 1985. Although, some language in plaintiff's complaint uses terms of common law language, there is no reference to 28 U.S.C. § 1367 invoking this court's supplemental jurisdiction for a state claim or any language to that effect. There is no reference in the complaint as to compliance with the Utah Governmental Immunity Act, Utah Code Ann. § 63-30, et seq. Therefore, there is no state law claim before the court. Rule 8(a) F.R.C.P. requires a jurisdictional statement and plaintiff has only invoked federal law. Therefore, there is no basis to address such an issue of state law.
Plaintiff's complaint does not allege facts for a claim under 42 U.S.C. § 1985 (3). Griffin v. Breckenridge, 403 U.S. 88 (1971). Therefore, the court will only consider the plaintiff's conduct as proper under 42 U.S.C. § 1983.
Eleventh Amendment and "Persons" Under 42 U.S.C. § 1983
The plaintiff, by virtue of the Eleventh Amendment, may not bring a suit in a federal court under 42 U.S.C. § 1983 against the State of Utah, its agency USOE, or any state employee or official in the person's official capacity. Seminole Tribe v. Florida, 517 U.S. 44 (1996); Edelman v. Jordan, 415 U.S. 651 (1974) (suit under 42 U.S.C. § 1983 barred by 11th Amendment); Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573 (1946) (suit against Utah state agency barred in federal court by 11th Amendment); Whitney v. State of New Mexico, 113 F.3d 1170 (10th Cir. 1997); Will v. Michigan Dept. of State Police, 491 U.S. 58, 65-66 (1989); Haston v. Galetka, 799 F. Supp. 1129 (D. Utah 1992) (state officer sued in an official capacity).
In addition, the State of Utah, USOE, and individual officers or employees when sued in their official capacity are not "persons" within the meaning of 42 U.S.C. § 1983, Will v. Michigan Dept. of State Police, supra; Bruner v. Rasmussen, 792 F. Supp. 731 (D.Utah 1992), except for prospective injunctive relief. Will, supra; Ex parte Young, 209 U.S. 123 (1980); Papasan v. Allain, 478 U.S. 265 (1986). Plaintiff's complaint appears to ask for some aspects of such relief.
Therefore, the claims against the State of Utah, the USOE and the individual defendants in their official capacity must be dismissed, except that as to the individual defendants, prospective injunctive relief may be pursued, Will, supra.
Individuals Sued In Their Individual Capacity
Suits against individual state employees not in their official capacity are not barred by the Eleventh Amendment and may be brought under 42 U.S.C. § 1983 where proper. Kentucky v. Graham, 473 U.S. 159 (1985). Suit is not one in an official capacity merely because an individual acts as a state official. Hafer v. Melo, 502 U.S. 21 (1991). Although, plaintiff has not specifically alleged individual versus official capacity, a flexible approach rather than a rigid pleading requirement is proper. The course of proceedings must be examined. Pride v. Does, 997 F.2d 712, 715 (10th Cir. 1993); Kentucky v. Graham, supra. In this circuit the substance of the pleadings must be examined. Pride, supra, (collecting cases).
The substance of plaintiff's pleadings shows she has alleged specific acts against Taylor and Broadbent. Specific conduct on their part is claimed as having violated plaintiff's rights. The obvious construction must be that plaintiff has sued the individual defendants in their individual capacities. They are not named as nominal parties for the State of Utah or USOE. Therefore, plaintiff's claims against Taylor and Broadbent as individuals may be continued.
No position is taken as to whether plaintiff has alleged a claim under 42 U.S.C. § 1983 either for damages or equitable relief.
State Law Prerequisites
Defendants have asserted dismissal is required because certain state law requirements i.e. notice, filing of an undertaking, have not been met. However, this requirement only has application to claims brought under state law not for an action under 42 U.S.C. § 1983. Felder v. Casey, 487 U.S. 131 (1988); Rosa v. Cantrell, 705 F.2d 1208, 1221 (10th Cir. 1982); Childers v. Independent Sch. Dist., 676 F.2d 1338, 1342-43 (10th Cir. 1982). Therefore, since no state supplemental jurisdiction claims apply in this case, the state law prerequisite argument is academic.
Conclusion
The motion of the State of Utah, USOE, Brenda S. Broadbent and Mae M. Taylor, in their official capacities, for judgment on the pleadings, should be GRANTED except as to the individual defendants in their official capacity for prospective injunctive relief. However, plaintiff may maintain the action under 42 U.S.C. § 1983 against Taylor and Broadbent in their individual capacities.
Copies of the foregoing Report and Recommendation are being mailed to the parties who are hereby notified of their right to object to the same. The parties are further notified that they must file objections to the Report and Recommendation, with the clerk of the court, pursuant to 28 U.S.C. § 636(b), within ten (10) days after receiving it. Failure to file objections may constitute a waiver of those objections on subsequent appellate review.