Opinion
Case No. 3:97cv211-B-A.
Filed Date: January 8, 1999.
MEMORANDUM OPINION
This cause comes before the court upon the motion of the Board of Trustees for the Institutions of Higher Learning (hereinafter referred to as "the College Board") to dismiss, or in the alternative, for summary judgment and the motion of the University of Mississippi to dismiss. Upon due consideration of the parties' memoranda and exhibits, the court is ready to rule.
FACTS
On or about November 1, 1997, the University of Mississippi created a policy banning sticks and other pointed objects from University of Mississippi athletic events as well as banning all flags larger than 12" x 14" (this policy will be hereinafter referred to as "the stick ban", and reference thereto will include the ban on large flags). The plaintiff attended the University of Mississippi football game on campus at Vaught-Hemingway Stadium on November 6, 1997, with two companions who possessed a 3' x 5' flag. The plaintiff and his companions attempted to display the flag inside the stadium, but were required to take their flag down by officers of the University Police Department. The plaintiff, aggrieved of the decision to ban flags larger than 12" x 14", requested that the University allow him to display a 3' x 5' flag at the next home game, scheduled for November 22, 1997. The University refused.
Immediately thereafter, the plaintiff filed this suit, asserting a cause of action against "The University of Mississippi" and the "Board for the Institutions of Higher Learning." Those two parties were the only named defendants in the initial complaint. The plaintiff subsequently amended his complaint to assert causes of action against numerous individuals, including Chancellor Robert Khayat and the various members of the College Board. The original named defendants were not listed by the plaintiff in the amended complaint, though the University and the College Board are, as a practical matter, still defendants by virtue of Chancellor Khayat and the College Board members being sued in their official capacities.
LAW
In considering a motion to dismiss, the district court must accept all well-pleaded facts as true and view them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Dismissal is not appropriate unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Doe v. Hillsboro Indep. Sch. Dist., 81 F.3d 1395, 1401-1402 (5th Cir. 1996). On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275 (1986) ("the burden on the moving party may be discharged by `showing' . . . that there is an absence of evidence to support the non-moving party's case"). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 91 L. Ed. 2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 216 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 91 L. Ed. 2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 552 (1986).
Defendants Dr. Cassie Pennington, Ricki R. Garrett, Nan McGahey Baker, J. Marlin Ivey, James W. Luvene, William S. Crawford, J.P. Mills, Carl Nicholson, Jr., Dr. D.E. McGee, Thomas W. Colbert, James Roy Klumb and Virginia Shanteau Newton, as members of the College Board, have moved to dismiss or for summary judgment. The court will treat the defendants' motion as one for summary judgment, since the defendants did submit matters outside the pleadings for consideration.
The plaintiff alleges that the members of the College Board committed the following acts: (1) ratified or condoned the stick ban, (2) declined to convene to consider the plaintiff's complaints against the University, (3) ignored the plaintiff's request to bring a flag into Vaught-Hemingway Stadium on November 6 and 22, 1997, (4) refused to overturn the stick ban, (5) failed to supervise University officials, (6) violated the plaintiff's right to equal protection by not banning sticks and flags at Jackson State University athletic events, and (7) conspired to deprive the plaintiff of his Constitutional rights; however, despite the plaintiff's allegations against the College Board, the court finds that the College Board took no part in the decision to enforce a stick ban at University of Mississippi athletic events and had no duty to review such a ban. The College Board elects an executive officer as head of each university. In the case of the University of Mississippi, the executive officer is Chancellor Robert Khayat. The University of Mississippi is under the direct management of Chancellor Khayat under authority delegated to him by the College Board. The decision to create and enforce a stick ban at University athletic events is one of the many decisions regarding day-to-day management of the University made by Chancellor Khayat which are never brought before the College Board for approval. The plaintiff has failed to show that the individual members of the College Board played any role in implementing the stick ban or that they had any legal duty to consider whether the stick ban is appropriate. Accordingly, in the absence of any participation in the promulgation of the policy and in the absence of any duty to act, the court finds that the members of the College Board should be dismissed in both their individual and official capacities.
If we were to follow the plaintiff's logic with regard to the duties of the College Board to oversee the day-to-day administration of each one of the eight public universities in the State of Mississippi, the Board would be a defendant in nearly every employment dispute and other civil litigation brought against the various universities.
As to the plaintiff's claims asserted against the University of Mississippi (specifically the claims against Chancellor Khayat in his official capacity), the court finds that the claims should be dismissed insofar as they seek monetary damages. It is well settled under the doctrine of Eleventh Amendment immunity that states and state agencies (which include state universities) are immune from suit in federal court regardless of the relief sought. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 79 L. Ed. 2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 57 L. Ed. 2d 1114 (1978). However, the plaintiff may challenge the constitutionality of a state official's action by suing the appropriate state official in his or her official capacity for prospective, injunctive relief. Kentucky v. Graham, 473 U.S. 159, 87 L. Ed. 2d 114 (1985); Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714 (1908). Therefore, the court will not dismiss the plaintiff's claims against University officials in their official capacity for injunctive relief on the grounds of Eleventh Amendment immunity; but the court finds that the plaintiff's claims for monetary damages against University officials in their official capacity should be dismissed.
Larry v. Louisiana Bd. of Trustees, 22 F.3d 621, 622-623 (5th Cir. 1994); Everhart v. University of Miss., 695 F. Supp. 883, 884 (S.D. Miss. 1988).
CONCLUSION
For the foregoing reasons, the court finds that the motion of the members of the College Board for summary judgment should be granted and the motion of the University of Mississippi to dismiss should be granted as it relates to claims for monetary damages and denied in all other respects. An order will issue accordingly.