Opinion
Civil No. 2:03cv00034
December 6, 2003
MORRIS O. HAGGERTY, Salt Lake City, Utah, for Defendant
Akiko Kawamura, for plaintiff
ORDER RE DEFENDANTS' MOTIONS TO DISMISS
Defendants' Motion to Dismiss on Qualified Immunity and defendant University of Utah's Motion to Dismiss Plaintiff's First Cause of Action came on for hearing on October 15, 2003. Defendants were represented by Morris Haggerty. Plaintiff was represented by Akiko Kawamura. The Court, having read the Memoranda submitted, having heard oral argument and being fully advised hereby Orders as follows:
1. The parties agree that the First Cause of Action against the individual defendants, alleging due process violations under the United States Constitution, is brought pursuant to 42 U.S.C. § 1983 and will be considered as part of plaintiff's Second Cause of Action alleging a due process violation.
2. The parties agree that the Plaintiffs First Cause of Action against the University of Utah is also based on 42 U.S.C, § 1983, Because the University of Utah is not a "person" plaintiff cannot seek monetary damages against it. Therefore, the First Cause of Action is dismissed to that extent. Plaintiff may still seek future, prospective injunctive relief.
3. Plaintiff agrees that the individual defendants are not parties to the contract alleged to be violated. Therefore, the Third and Fourth Causes of Action are dismissed as to the individual defendants.
4. As to all of the individual defendants, plaintiffs Second Cause of Action is dismissed insofar as plaintiff alleges a violation of his right to free speech, association and equal protection. On those issues the individual defendants are entitled to qualified immunity because there is no established law that beginning disciplinary procedures and carrying those through to termination would violate the alleged rights in the context of this case,
5. As to the individual defendants Peterson and Haskell, Plaintiffs Second Cause of Action is dismissed insofar as it alleges a due process violation. These defendants were involved solely in the pre-termination phase of the discipline; based on the allegations in the Complaint the plaintiff received adequate notice and an opportunity to be heard. Regarding the plaintiff's argument that pre-termination procedures should be evaluated in the context of post-termination procedures, based on the allegations in the Complaint, Peterson and Haskell could not have known, in advance, that the post-termination procedures would be allegedly defective. Therefore, Peterson and Haskell did not knowingly violate the plaintiffs due process rights and are entitled to qualified immunity. There being no remaining causes of action left against Peterson and Haskell, they are dismissed from this action.
6. As to the plaintiffs due process claims against individual defendants Machen and Perching, the Motion to Dismiss is denied. Plaintiffs Complaint sufficiently alleges a violation of his post-termination due process rights and involvement of these defendants.