January 22, 2000
OPINION AND ORDER
This matter is before the Court on Defendants' motion to dismiss or, in the alternative, for summary judgment. (Doc. # 17.) For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6).
This case is a result of Plaintiff Christopher Anderson's dismissal from the faculty of The Ohio State University ("OSU"). Plaintiff has filed this lawsuit against 20 individual Defendants who he alleges "are or were employees of Ohio State University at the time of the conduct giving rise to this [action]." (Doc. # 14 at § 22.) Plaintiff alleges that Defendants deprived him of his federal procedural and substantive due process rights in causing his loss of tenure and termination. (Id. at §§ 55, 58.) Plaintiff also brings state law claims against Defendants for gender discrimination, civil conspiracy and intentional infliction of emotional distress. (Id. at §§ 64, 67, 70.)
Plaintiff was a tenured Assistant Professor in the College of Food, Agricultural and Environmental Sciences and served as a 4-H youth development agent at the Fairfield County Extension Office. (Id. at § 26.) The circumstances which led to Plaintiff's termination involved various instances of alleged misconduct by Plaintiff toward a high school student in the 4-H program. According to OSU, Plaintiff pursued an inappropriate romantic relationship with the minor despite warnings from Plaintiff's superiors and the minor's parents that he refrain from contacting her. (Defendants' Ex. A at 1.)
One example of alleged misconduct by Plaintiff occurred on October 11, 1996. (Id.) A police report filed in that incident described Plaintiff and the minor as sitting alone in Plaintiff's parked car. (Defendants' Ex. B.) The minor had her pants unzipped when a police officer approached the car. (Id.) According to the police report, Plaintiff told the officer that he and the minor had been "making out." (Id.) Based upon that incident, the Dean of the College of Food, Agricultural and Environmental Sciences appointed a College Investigation Committee to investigate the relationship between Plaintiff and the minor. (Defendants' Ex. A at 1.)
The appointment of the College Investigation Committee ("CIC") was the first of six stages of review conducted by OSU before it ultimately decided to detenure and terminate Plaintiff. (Id.) On March 25, 1997, the CIC reported findings from its investigation and recommended that OSU terminate Plaintiff. (Id.) In the second stage of Plaintiff's detenurization process, the Dean reviewed the CIC's findings and upheld its recommendation. (Id.) Subsequently, Plaintiff appealed the Dean's decision to the Provost. (Id. at 2.) The Provost agreed with the CIC and the Dean. (Id.) Plaintiff then appealed the Provost's recommendation to the Faculty Hearing Committee, which appointed a three-person panel and a presiding officer to conduct a hearing wherein Plaintiff could present evidence and argue his position. (Id.)
On November 10 and 11 1997, OSU law professor David Goldberger presided over the hearing and the panel heard evidence presented by Plaintiff and OSU. (Defendants' Ex. C.) The transcript of the hearing reveals that Plaintiff had an attorney present to assist him in arguing before the panel. (Id. at 4.) The panel permitted opening arguments and heard direct and cross examination testimony from witnesses called by Plaintiff and OSU. (Id. at 7-27, 29, 39.) In lieu of a closing argument, the panel accepted a 22-page post-hearing brief from Plaintiff. (Defendants' Ex. C at 644-647; Ex. D.) Following the hearing and submission of post-hearing briefs, the panel issued its decision recommending that OSU terminate Plaintiff. (Defendants' Ex. F.) Thereafter, the President of OSU upheld the panel's recommendation. (Defendants' Ex. F.) In the final stage of review, the Board of Trustees decided to revoke Plaintiff's tenure and terminate his position with OSU. (Defendants' Ex. G.)
Following his official dismissal, Plaintiff filed a Complaint in this Court against OSU and various individual Defendants alleging deprivation of his federal civil rights as well as violations of state law. (Doc. # 1.) Plaintiff amended the Complaint to dismiss OSU after learning that it is immune from suit under the Eleventh Amendment of the Constitution. (Doc. # 14.) The claims against the remaining Defendants are now before this Court for review under Defendants' motion to dismiss, or in the alternative, for summary judgment.
II. STANDARD OF REVIEW
Defendants seek dismissal of Plaintiff's claims pursuant to Rule 12(b) (6) for failure to state a claim upon which relief can be granted. In the alternative, Defendants move for summary judgment pursuant to Rule 56. In support of their motion to dismiss, Defendants have attached numerous exhibits for the Court's review. As a general rule, matters outside the pleadings cannot be considered in determining a motion to dismiss unless the motion is converted to one for summary judgment. See Weiner v. Klais Co. Inc., 108 F.3d 86, 88 (6th Cir. 1997). However, Defendants argue that, under the law of this circuit, the exhibits that they have attached are not "outside the pleadings" and the Court may decide their motion under Rule 12(b)(6). (Doc. # 12 at 6-7.) This Court will now proceed in reviewing the exhibits, as well as the relevant case law, in order to determine the appropriate standard of review to apply in this case.
The Sixth Circuit considers "`[d]ocuments that a defendant attaches to a motion to dismiss . . . [as] part of the pleadings if they are referred to in the plaintiff's complaint and are central to her claim." Weiner 108 F.3d at 89 (citation omitted); see also Allied Mechanical Servs., Inc. v. Local 337 of the United Assoc. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, No. 99-1494, 2000 WL 924594, at * 2 (6th Cir. June 26, 2000). A defendant may attach documents pertinent to the case, which the plaintiff failed to attach to the complaint. If this were not so, a plaintiff with a deficient claim could survive a motion to dismiss merely by choosing not to attach documents to his complaint. Id.
The case at hand involves the procedural fairness of a hearing which resulted in Plaintiff's loss of tenure and the conduct of the Defendants toward Plaintiff. Defendants' Exhibits A, C, D, E, F and G are copies of official documents, each pertaining to a stage of Plaintiff's detenurization. This Court finds that they "can properly be considered incorporated by reference into the complaint" based upon the fact that Plaintiff alleges that he received insufficient process. Id. In addition, the remaining exhibit, Exhibit B, may also be considered by this Court because it is a public record. See Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999). Exhibit B is a copy of the police report prepared in response to the incident between Plaintiff and the minor — the incident which gave rise to Plaintiff's termination. Therefore, because all of the exhibits attached to Defendants' motion may be considered in deciding a motion to dismiss, the Court will consider the parties' arguments under the standard of review for a Rule 12(b)(6) motion to dismiss.
Defendants' Exhibit A is a copy of the hearing panel's decision. Exhibit C is a copy of the transcript of the hearing. Exhibit D is a copy of Plaintiff's post-hearing brief. Exhibit E is a copy of the recommendation for termination by the faculty hearing committee panel to Gordon Gee, the President of OSU. Exhibit F is a letter from Gee to Plaintiff upholding the committee's decision. Exhibit G is a copy of the Board of Trustee's resolution to terminate Plaintiff.
Any claim by Plaintiff that he was unfairly surprised by this Court's consideration of Defendants' exhibits would be disingenuous. Plaintiff was put on notice that the Court may consider the exhibits because Defendants filed their motion as a motion to dismiss or, in the alternative, for summary judgment. See Allied Mechanical Services, 2000 WL 924594 at * 3 fn. 3 ("When materials outside the pleadings are filed in connection with a motion to dismiss for failure to state a claim, the parties generally cannot claim surprise if the motion is then converted to one for summary judgment.").
A motion to dismiss "test[s] whether a cognizable claim has been adequately alleged in a complaint." Kerasotes Michigan Theaters, Inc. v. Nat'l Amusements, Inc., 854 F.2d 135, 136 (6th Cir. 1988). In conjunction, Rule 8(a), which governs pleadings, requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. Civ. R. 8(a)(2) (2000 ed.) A complaint should not be dismissed unless "it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Haines v. Kerner, 404 U.S. 519, 520-21 (1971) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
In determining whether the facts presented in a complaint support a claim upon which relief may be granted, the Court "must accept-as true all factual allegations in the complaint." Kerasotes, 854 F.2d at 136;see also Windsor v. The Tennessean, 719 F.2d 155, 158 (6th Cir. 1983). Then, the Court must determine whether those allegations support "all material elements necessary to sustain a recovery under some viable legal theory." Weiner, 108 F.3d at 88.
Accordingly, this Court must accept as true that Plaintiff was a tenured Assistant Professor with OSU and was terminated for an alleged violation of faculty rules. In addition, as alleged in the Amended Complaint, the Court accepts as true that Defendants, in conducting Plaintiff's pre-termination hearing, failed to follow governing faculty rules by doing such things as refusing to accept documentary evidence submitted by Plaintiff, refusing to allow Plaintiff to call his accusers and supervisors as witnesses at his hearing and failing to maintain the confidentiality of the proceedings. (Doc. # 14 at §§ 31, 40, 44.) With respect to Plaintiff's state law claims, this Court must accept as true that Plaintiff suffered financial loss associated with loss of employment as well as loss of reputation, humiliation and embarrassment. (Id. at § 53.) Therefore, the issue before this Court becomes whether Plaintiff's allegations meet the legal elements necessary to state a claim for violation of civil rights, civil conspiracy, gender discrimination and intentional infliction of emotional distress. The Court addresses each of these issues below.
III. ANALYSIS A. 42 U.S.C. § 1983
In Counts I and II of the Amended Complaint, Plaintiff alleges that Defendants violated his Fourteenth Amendment right to substantive and procedural due process. (Doc. # 14 at § 55, 58.) Based upon those allegations, Plaintiff brings a claim under 42 U.S.C. § 1983. Congress enacted § 1983 to serve as a means by which claims can be brought specifically under the Due Process Clause of the Fourteenth Amendment. See Verdon v. Consolidated Rail Corp., 828 F. Supp. 1129, 1136 (S.D.N.Y. 1993). It provides that any person who acting under the color of state law deprives another of his constitutional rights shall be liable to the injured party. See 42 U.S.C. § 1983 (2000). Plaintiff purports to state a claim under this statute based upon allegations that (1) Defendants are or were employees of the State of Ohio through OSU and (2) Defendants deprived Plaintiff of his constitutional rights. However, under the circumstances explained below, the Eleventh Amendment of the Constitution provides absolute immunity from suit under § 1983. See Hans v. Louisiana, 134 U.S. 1, 18-19 (1890).
a. The Eleventh Amendment
The Eleventh Amendment provides immunity for states from certain lawsuits filed against them, unless the State consents to be sued. See Edelman v. Jordan, 415 U.S. 651, 668-69 (1974). Otherwise, states receive absolute immunity from suit where a plaintiff seeks "retroactive" relief, such as money damages, against a State. Id. States do not receive immunity from suit if a plaintiff seeks prospective relief such as an injunction. Id. In this case, the State of Ohio has not waived immunity under the Eleventh Amendment and Plaintiff seeks retroactive relief in the form of money damages. (Doc. # 14 at § 72.) Therefore, Plaintiff cannot sue the State of Ohio or its legal equivalent.
The Eleventh Amendment applies to this case because Plaintiff is suing employees of OSU, which is an "alter ego of the State of Ohio for eleventh (a)mendment purposes." Bailey v. The Ohio State University, 487 F. Supp. 601, 606 (S.D. Ohio 1980) (citing Ottinger v. Riggs, Civil Action No. 79-262-A at 6 (E.D.Va. 1979)). When employees of a State face a lawsuit based on actions they took in their official capacities, the lawsuit is "deemed to be against the State" itself. Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 307 (6th Cir. 1984). Hence, any claims asserted by Plaintiff against Defendants in their official capacities are barred by the Eleventh Amendment. On the other hand, when state employees are sued for acts they performed in their individual or personal capacities, they receive only qualified immunity from liability.See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Under the law of qualified immunity, "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."Id.
In this case, Plaintiff has failed to specifically plead whether he is suing Defendants in their official or individual capacities. Generally, such inadequate pleading results in dismissal of the case because "individual-capacity suits must be clear enough to notify defendant of the personal nature of the suit." Wells v. Brown, 891 F.2d 591, 593 (6th Cir. 1989). Although this Court is tempted to dismiss this case for such poor pleading, it will presume that Plaintiff intends to sue Defendants only in their personal capacities. That presumption is based upon the fact that Plaintiff dismissed OSU as a defendant in the Amended Complaint after recognizing the university's Eleventh Amendment immunity. Also, in spite of Plaintiff's pleading, Defendants immediately recognized their potential to be sued in their personal capacities and argued qualified immunity in their motion to dismiss. (Doc. # 12 at 10.) Therefore, to survive this motion to dismiss, Plaintiff must overcome Defendants' qualified immunity defense by (1) alleging a violation of a clearly established constitutional right and (2) that Defendants should have known their conduct violated that right. The Supreme Court has held that "the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all." County of Sacramento v. Lewis, 523 U.S. 833, 841 (n. 5) (1998). With that in mind, this Court will proceed to analyze Plaintiff's allegations that Defendants deprived him of his Fourteenth Amendment right to procedural due process.
b. Procedural due process
"[T]he Due Process Clause provides that certain substantive rights — life, liberty, and property — cannot be deprived except pursuant to constitutionally adequate procedures." Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1984). In Board of Regents v. Roth, 408 U.S. 564, 576-77 (1972), the Supreme Court stated that a tenured professor of a public university has a substantive property right in continued employment. It follows that, as a tenured professor, Plaintiff was entitled to constitutionally adequate procedures prior to his termination from OSU. The question before this Court is whether the procedures provided to Plaintiff meet the standards of constitutional due process. If so, Defendants are entitled to qualified immunity and Plaintiff's claims must be dismissed.
The majority of the allegations in the Amended Complaint rest upon Defendants' failure to follow the OSU Faculty Rules governing pre-termination hearings. (Doc. # 14.) For instance, Plaintiff alleges that Defendants "in violation of governing faculty rules" failed to complete the hearing proceedings within the required time period. (Doc. # 14 at § 48.) However, the Sixth Circuit has consistently stated that a violation of internal rules, such as the university's own rules governing hearings, "does not establish a cognizable constitutional violation." Hall, 742 F.2d at 309; see also Purish v. Tennessee Tech. Univ., 76 F.3d 1414, 1423 (6th Cir. 1996); Gies v. Flack, No. C-3-96-61, 1996 WL 1671234, at *7 (S.D. Oh. Apr. 24, 1996) ("Plaintiff cannot maintain a due process claim for [the university's] alleged failure to adhere to its handbook procedures for removing him from tenure."). After all, "the federal courts, and not the [u]niversity[,] . . . are responsible for establishing the contours of the Due Process Clause of the Fourteenth Amendment." Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 522 (10th Cir. 1998). Accordingly, this Court will analyze the allegations in the Amended Complaint under federal law defining the contours of procedural due process.
The Supreme Court has held that "some form of hearing is required before an individual is finally deprived of a property interest." Mathews v. Eldridge, 424 U.S. 319, 333 (1975) (citing Wolff v. McDonnell, 418 U.S. 539, 557-58 (1974)). The form of hearing required depends upon an "analysis of the governmental and private interests that are affected." Id. at 334. Courts should consider the following factors in determining the degree to which a hearing in a particular case must resemble a full blown judicial trial: (1) the private interest affected by the official action; (2) the risk of erroneous deprivation and value of additional procedure; and (3) the state's interest regarding fiscal and administrative burdens involved in such hearings. See id. at 335. In applying the Mathews balancing test to professor loss of tenure cases, the Sixth Circuit has held that less than a full evidentiary hearing is required prior to termination. See Purish, 76 F.3d at 1424; Frumkin v. Bd. of Trustees, 626 F.2d 19, 21 (6th Cir. 1980). Specifically, the Sixth Circuit has stated the following:
[W]e turn now to determine what due process was constitutionally required to protect that interest. The law is quite clear on this question. Professors with tenure or with a continuing contract may not be discharged without receiving a hearing in which they are informed of the grounds for their dismissal and given the opportunity to challenge the sufficiency of those grounds.Johnston-Taylor v. Gannon, 907 F.2d 1577, 1581 (6th Cir. 1990).
Applying that standard to the facts of this case, this Court finds that Plaintiff fails to state a claim for a deprivation of procedural due process. Plaintiff does not deny that he was informed of the grounds supporting a possible dismissal. (Doc. # 14 at §§ 43, 44.) Rather, his allegations challenge his opportunity to address those grounds as well as the propriety of Defendants' decision to recommend termination. However, this Court will not review de novo the merits of Defendants' decision based upon their consideration of the evidence. See Mueller v. Regents of Univ. of Minn., 855 F.2d 555, 559 (8th Cir. 1988) (finding that it was not for the court to determine whether it would terminate Mueller based upon the evidence presented during his termination hearing). Procedural due process is concerned only with whether Plaintiff received a meaningful opportunity to present his defense. With that said, the Court notes that "[t]he Supreme Court has consistently rejected a concept of due process which would afford all complaining parties, whatever the context of the dispute, an inflexible "checklist' of legal rights." Frumkin, 626 F.3d at 21. Yet, it is apparent from the Amended Complaint that Plaintiff believes he is entitled to such a checklist.
The Amended Complaint is dense with allegations that Defendants refused to provide some procedure or another during the detenurization process. The allegations of hyper-technical "deprivations" range from Defendants' failure to accept Plaintiff's documentary evidence to their failure to keep matters confidential. However, none of the allegations, considered separately, or as a whole, support a claim that Defendants deprived Plaintiff of a meaningful opportunity to challenge the grounds for his dismissal. As a matter of fact, the transcript draws a completely different picture. Plaintiff received a full two-day hearing before a panel of his peers prior to his termination. (Defendants' Ex. C.) At the hearing, Plaintiff had the assistance of counsel. (Id.) Together with his counsel, Plaintiff called six witnesses to testify on his behalf and cross-examined all of OSU's witnesses. (Id.) In addition, the hearing panel permitted Plaintiff to submit a post-hearing brief, in which he could sum up the evidence and reargue the substantial points of his defense. (Defendants' Ex. D). Moreover, after the panel recommended that OSU terminate Plaintiff, the President of OSU and the Board of Trustees re-reviewed the circumstances of the case before ultimately deciding to terminate Plaintiff. (Defendants' Ex. F, G.)
Comparing those procedures to procedures provided in other property interest cases decided by the Sixth Circuit, this Court finds that they "easily satisfied the requirements of due process." Purisch, 76 F.3d at 1424. For instance, in Purisch, the plaintiff received nearly analogous procedures as Plaintiff in this case. The Sixth Circuit found that even though the grievance proceedings were not the same as a full-fledged judicial inquiry, Purisch received a through inquiry comporting with constitutional due process. Id. In addition, the Sixth Circuit has held that "an individual is not entitled to assistance of counsel in informal university administrative proceedings," a benefit Plaintiff received.Yashon v. Hunt, 825 F.2d 1016, 1026 (6th Cir. 1987) (citing Crook v. Baker, 813 F.2d 88, 99 (6th Cir. 1987)); Frumkin, 626 F.2d at 21). Still, Plaintiff alleges that he was deprived of procedural due process because he was not permitted to call the minor as a witness. (Doc. # 14 at § 44.) To the contrary, the hearing panel found that her testimony would not be relevant to the issue before them. The panel based its recommendation for termination on conduct admitted by Plaintiff. According to the panel's written decision, Plaintiff, in violation of OSU policy, repeatedly contacted the minor after he was told to leave her and her family alone. Because Plaintiff did not deny his repeated contact with the minor and because the panel determined that such conduct constitutes a violation of university policy, the panel concluded that her testimony would be not be relevant. (Defendants' Ex. A at 12, 14-15.) This Court agrees and finds that Plaintiff's inability to cross-examine the minor did not result in a violation of his right to procedural due process.
Finally, Plaintiff alleges bias on the part of Defendants Fourman, Schurtz, Bieri, Moser and Andrews, which resulted in his receiving an unfair hearing. (Doc. # 14 at §§ 49, 52.) Yet, those individuals were not members of the hearing panel and played no role in the ultimate decision-making process following Plaintiff's opportunity to be heard. (Defendants' Ex. C, F, G.) Plaintiff also alleges bias on the part of Helen Ninos who acted as counsel for OSU during the pre-termination hearing. (Id. at § 52; see also Defendants' Ex. C.) However, her role in the hearing was the role of an advocate, and not the role of a disinterested judge of the evidence. This Court also notes that Plaintiff had an attorney present with him who had the opportunity to bring any issues of unfairness in the process to the hearing panel's attention. Upon review of the record, it is clear that Plaintiff had a meaningful opportunity to address the sufficiency of the grounds for his dismissal. Accordingly, Plaintiff does not state a claim for violation of the clearly established right to procedural due process. Thus, Defendants are entitled to qualified immunity.
Because this Court finds that Plaintiff does not state a claim for a violation of a clearly established constitutional right, there is no need to address the second question under qualified immunity, i.e. whether Defendants reasonably understood their conduct to violate a constitutional right.
c. Substantive due process
Substantive due process protects individuals from arbitrary action by the government. See Lewis, 523 U.S. at 845. Generally, a deprivation of substantive due process claim involves a government official's abuse of authority by acting in an arbitrary or capricious manner to deprive another of a property or liberty right. In loss of tenure cases, substantive due process "requires that the termination of a tenured professor's property interest not be `arbitrary, capricious, or without a rational basis."' Tonkovich, 159 F.3d at 528 (quoting Brenna v. Southern Colo. State College, 589 F.2d 475, 477 (10th Cir. 1978)). However, "only the most egregious official conduct can be said to be `arbitrary in the constitutional sense.'" Lewis, 523 U.S. at 846. (citing Collins v. City of Harker Heights, 503 U.S. 115, 129 (1992)). In determining what level of conduct is egregious enough to constitute a violation of substantive due process, the Supreme Court asks whether the conduct "shocks the conscience." Id.
In the Amended Complaint, Plaintiff relies upon the same factual allegations to support his claims for a deprivation of both procedural and substantive due process. Therefore, in this section, the Court must determine whether Defendants' conduct in terminating Plaintiff was so shockingly arbitrary as to deprive him of substantive due process rather than determining whether Plaintiff's allegations state a claim for lack of procedural fairness.
In Plaintiff's Memorandum in Opposition to Defendants' Motion to Dismiss, he relies upon Ludwig v. Board of Trustees of Ferris State Univ., 123 F.3d 404 (6th Cir. 1997), to argue that OSU violated his substantive due process right to liberty based upon stigmatizing statements it made public about him. However, Plaintiff did not allege the same in the Amended Complaint and cannot rely upon his Memorandum in Opposition to cure deficiencies in the complaint. See Wright v. Ernst Young LLP, 152 F.3d 169, 178 (2nd Cir. 1998) ("a party is not entitled to amend its complaint through statements made in motion papers.").
Accepting as true that Defendants failed to follow OSU faculty rules in administering the pre-termination hearing, their conduct does not state a claim for shockingly arbitrary and capricious deprivation of a property interest. As stated above, Plaintiff still received a hearing which comports with constitutional standards. In finding that Plaintiff had a meaningful opportunity to address his grounds for dismissal, this Court finds that Defendants did not act in an arbitrary or capricious manner in administering the pre-termination hearing.
In turn, Plaintiff claims that Defendants Jones, Fourman, Schurtz, Bieri, Moser Andrews and Ninos were biased against him. Assuming that allegation is true, it nevertheless fails to support a claim for deprivation of his tenure without a rational basis because none of those individuals were decision-makers subsequent to Plaintiff's opportunity to be heard.
Another of Plaintiff's factual allegations set forth in support of his substantive due process claim is that Defendants "improperly reached the decision to terminate a tenured faculty member, despite the fact that allegations raised in the complaint had been shown to be false, were not supported by the evidence, or did not amount to grave misconduct under faculty rules." (Doc. # 14 at § 41.) However, improper decisionmaking does not state a claim for arbitrary governmental action. "The Due Process Clause `is not a guarantee against incorrect or ill-advised personnel decisions.'" Collins, 503 U.S. at 129 (quoting Bishop v. Wood, 426 U.S. 341, 350 (1976)). Substantive due process requires only that Plaintiff receive a fair hearing based upon impartial decisionmaking before being deprived of his property interest in continued employment. Because none of his allegations support a claim that he was deprived of substantive due process, Defendants are entitled to qualified immunity.
B. Section 1985 Claim
Plaintiff also attempts to state a claim under 42 U.S.C. § 1985. In order to establish a claim under § 1985, a plaintiff must prove "(1) a conspiracy involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws and (3) an act in furtherance of the conspiracy (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States."Johnson v. Hills Dales Gen. Hosp., 40 F.3d 837, 839 (6th Cir. 1994). In addition, a plaintiff must establish that the conspiracy was motivated by a class-based animus, such as race. See Smith v. Thornburg, 136 F.3d 1070, 1078 (6th Cir. 1998).
The Court finds that Plaintiff fails to state a claim under § 1985 because he does not allege any facts that would entitle him to relief. Under § 1985, a plaintiff must plead his civil rights conspiracy charge with factual specificity; mere conclusory allegations will not survive a motion to dismiss. See Saunders v. Ghee, No. 94-4073, 1995 WL 101289, at *1 (6th Cir. Mar. 9, 1995) (citing Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir. 1984)); Rogers v. Mount Union Borough, 816 F. Supp. 308, 312 (M.D. Pa. 1993). The specificity necessary for a § 1985 claim requires a plaintiff to allege (1) specific conduct that violated his rights, (2) the time and place of that conduct and (3) the identity of the responsible parties. See Hurt v. Philadelphia Hous. Auth., 806 F. Supp. 515, 529 (E.D. Pa. 1992) (citing Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3d Cir. 1988)). Furthermore, a plaintiff fails to state a claim under § 1985 if he fails to make sufficient factual allegations to link two alleged conspirators in the conspiracy and to establish, at least by inference, the requisite "meeting of the minds" essential to the existence of a conspiracy. See McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (finding plaintiff failed to state a claim for conspiracy where plaintiff failed to allege facts sufficient to conclude that a meeting of the minds occurred);Francis-Sobel v. Univ. of Me., 597 F.2d 15, 17 (1st Cir. 1979) (finding plaintiff failed to state a claim for conspiracy where plaintiff failed to allege facts sufficient to link alleged conspirators in conspiracy).
In his Amended Complaint, Plaintiff asserts that:
Defendants Jones, Moser, Fourman, Schurtz, Bieri, and Ninos, in violation of federal law, upon learning of Plaintiff's alleged conduct with a minor female, conspired to take whatever steps necessary to remove Plaintiff from his position as a tenured faculty member, including shielding Plaintiff's chief accusers from cross examination by Plaintiff. This was entirely on the basis that the complainant was a female, and her credibility was immediately accepted, to the detriment of the Plaintiff.
(Doc. # 14 at § 52.) The allegations contained in this paragraph lack the requisite material facts and specificity necessary to sustain a conspiracy claim and are insufficient to withstand a motion to dismiss. First, Plaintiff fails to provide sufficient factual allegations to show that any of the Defendants conspired together or with anyone to deprive Plaintiff of his constitutional rights. See Francis-Sobil, 597 F.2d at 17. Moreover, Plaintiff fails to allege that he is a member of a protected class and that Defendants discriminated against him on the basis of such membership. "The failure to allege membership in a protected class, and discrimination based upon such membership, require[s] dismissal" of a § 1985 claim. Saunders, 1995 WL 101289, at *1. Therefore, the Court finds that Plaintiff fails to state a claim that would entitle him to relief under § 1985.
C. Plaintiff's State Law Claims
Plaintiff brings three state law claims against Defendants for gender discrimination, civil conspiracy and intentional infliction of emotional distress. However, this Court lacks subject matter jurisdiction to consider those claims. As the Court previously stated, the Eleventh Amendment bars suit against Defendants in their official capacities. In addition, the Ohio Court of Claims Act requires that state law claims brought against state employees in their personal capacities must first be brought in the Court of Claims. See O.R.C. § 2743.02(F) (1999 Supplement). Specifically, the Act provides that:
As with the federal claims, this Court will assume that Plaintiff intends to sue Defendants for violating Ohio law in their personal capacities.
A civil action against an officer or employee that alleges that the officer's or employee's conduct was manifestly outside the scope of his employment or official responsibilities . . . shall first be filed against the state in the court of claims, which has exclusive, original jurisdiction to determine, initially, whether the officer or employee is entitled to personal immunity under section 9.86 of the Revised Code.Id. Therefore, "[u]nder Ohio law, then, state employees may not be sued unless and until it has been determined by the Court of Claims that they are not entitled to immunity." Haynes v. Marshall, 887 F.2d 700, 704 (6th Cir. 1989). Accordingly, the Court DISMISSES Plaintiff's state law claims WITHOUT PREJUDICE.
Upon consideration and being duly advised, the Court GRANTS Defendants' motion to dismiss. In particular, the Court GRANTS Defendants' motion to dismiss with respect to Plaintiff's § 1983 and § 1985 claims and DISMISSES those claims in their entirety WITH PREJUDICE. In addition, the Court DISMISSES Plaintiff's state law claims for gender discrimination, civil conspiracy and intentional infliction of emotional distress WITHOUT PREJUDICE. This case is terminated.
IT IS SO ORDERED.