MARGARET
HOSTY, et al., Plaintiffs, v. GOVERNORS STATE UNIVERSITY, et
al., Defendants.
No.
01 C 0500
UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
174
F. Supp. 2d 782; 2001 U.S. Dist. LEXIS 5373; 29 Media L. Rep. 1950
April 27, 2001, Decided
April 30, 2001, Docketed
DISPOSITION: [**1] Defendants' motion to dismiss
granted in part and denied in part. Defendants Governors State University and
its Board of Trustees dismissed with prejudice from this action.
COUNSEL: For MARGARET HOSTY, JENI PORCHE, plaintiffs: Tamara
Lynn Cummings, Law Office of Joseph V. Roddy, Chicago, IL.
For GOVERNORS STATE UNIVERSITY, BOARD OF TRUSTEES OF GOVERNORS STATE UNIVERSITY,
DONALD BELL, PATRICIA CARTER, STUART FAGEN, PAUL KEYS, JANE WELLS, DEBRA CONWAY,
PEGGY WOODWARD, FRANCIS BRADLEY, PETER GUNTHER, defendants: Gladys M. Stevens,
David Wayne VandeBurgt, Illinois Attorney General's Office, Chicago, IL.
JUDGES: Suzanne B. Conlon, United States District Judge.
OPINIONBY: Suzanne B. Conlon
OPINION: [*783] MEMORANDUM OPINION AND
ORDER
Margaret Hosty, Jeni Porche, Steven P. Baron, individually and doing business as
Innovator (collectively "plaintiffs") sue Governors State University
("Governors State"), the Board of Trustees of Governors State
("the board"), Donald Bell, Tommy Dascenzo, Patricia Carter, Stuart
Fagan, Paul Keys, Jane Wells, Debra Conway, Peggy Woodard, Frances Bradley,
Peter Gunther, Ed Kammer, Dorothy Ferguson, Judy Young, Claude Hill IV, and Paul
Schwellenbach (collectively "defendants") [**2] for prior
restraint violations of the First Amendment (Count I), equitable relief (Count
II), and punitive damages (Counts III), pursuant to 42 U.S.C. § 1983 and 28
U.S.C. § 2202. Defendants move to dismiss for lack of jurisdiction and failure
to state a claim.
BACKGROUND
For purposes of a motion to dismiss, the court accepts all well-pleaded
allegations in the complaint as true and draws all reasonable inferences in
favor of the plaintiff. Stachon v. United Consumers Club, Inc., 229 F.3d 673,
675 (7th Cir. 2000). Hosty, Porche, and Baron are students at Governors State
and the editors and writers of a student-run newspaper, Innovator. Innovator is
funded through student activity fees and is dedicated to distributing
information and ideas pertinent to student life. Governors State is an Illinois
university chartered by the general assembly, governed by the state, and
supported primarily through government funds. The board, appointed by the
governor, manages the [*784] university. Keys is provost, Wells and
Woodard are associate provosts, Fagan is president, and Conway is secretary.
Carter is dean of student affairs [**3] and Dascenzo is director of
student life. Bradley, Gunther, Kammer, Ferguson, Young, and Hill are members of
the communications board that regulates and appropriates Innovator's budget.
Bell is administrative liaison between the university and Innovator.
Schwellenbach supervises the university's mail room.
Defendants and their agents, acting under color of state law and outside the
scope of authority, allegedly engaged in a campaign of prior restraints designed
to frustrate plaintiffs' rights of freedom of speech and press. This purported
campaign includes halting publication of Innovator, prohibiting future
publication without approval of university administrators, and suspending
Innovator's budget. Compl. at PP 24a-b. Further, defendants continue to provide
unauthorized access to Innovator's office, and fail to investigate four office
break-ins that resulted in criminal property damage. Id. at PP 24d-e. Defendants
have allegedly stolen, edited and deleted press mail and e-mail, and have
interfered with plaintiffs' use of computer and communication systems. Id. at PP
24c,f,g,i,l-m. Defendants have destroyed materials essential to Innovator's
operation, and have removed newspaper [**4] files. Id. at PP 24h,j.
Finally, defendants have denied plaintiffs admittance to Innovator's office for
more than a month. Id. at P 24k.
DISCUSSION
I. Motion to dismiss standard
In ruling on a motion to dismiss, the court considers "whether relief is
possible under any set of facts that could be established consistent with the
allegations." Pokuta v. Trans World Airlines, Inc., 191 F.3d 834, 839 (7th
Cir. 1999). Only if no set of facts would entitle the plaintiff to relief based
on the complaint's allegations will a motion to dismiss be granted. Vonderohe v.
B & S of Fort Wayne, Inc., 36 F. Supp. 2d 1079, 1081 (7th Cir. 1999). The
sufficiency of the complaint is tested by a motion to dismiss, not its merits.
Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990).
II. Jurisdiction and the Eleventh Amendment
A. Governors State University and its Board of Trustees
Defendants argue that plaintiffs' § 1983 claims against Governors State and the
board are barred by the Eleventh Amendment. Eleventh Amendment issues arise
whenever a private party files a federal lawsuit against a state, [**5]
a state agency or a state official. Pennhurst v. State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100-02, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984);
Gossmeyer v. McDonald, 128 F.3d 481, 487 (7th Cir. 1997). This bar applies to
any claim for which the state has not consented to be sued. Pennhurst, 465 U.S.
at 100-01. Governors State and the board are arms of the state and may not be
sued under § 1983. Kaimowitz v. Board of Tr. of Univ. of Ill., 951 F.2d 765,
767 (7th Cir. 1992); Ranyard v. Board of Regents, 708 F.2d 1235, 1238-39 (7th
Cir. 1983). Accordingly, plaintiffs' claims against Governors State and the
board must be dismissed regardless of the nature of the relief sought.
B. Individual defendants sued in their official capacity
For purposes of the Eleventh Amendment, state representatives sued in their
official capacity are considered the state, and this court is without
jurisdiction [*785] to hear claims against them. Will v. Michigan
Dep't of State Police, 491 U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304
(1989). It is assumed that a public official is sued in an official capacity
[**6] where the conduct underlying the § 1983 claim concerns
actions taken under color of state law. Kolar v. County of Sangamon of the State
of Ill., 756 F.2d 564, 568 (7th Cir. 1985). The allegations against the
university officials arise out of their official duties, and they are immune
from suit for retrospective relief under § 1983. Will, 491 U.S. at 64; Edelman
v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347, reh'g denied,
416 U.S. 1000, 40 L. Ed. 2d 777, 94 S. Ct. 2414 (1974); Kaimowitz, 951 F.2d at
767-68. Compensatory and punitive damages constitute retrospective relief and
are barred. Quern v. Jordan, 440 U.S. 332, 59 L. Ed. 2d 358, 99 S. Ct. 1139
(1979). Thus, the claims for damages in Count I and III against the university
officials in their official capacities are dismissed.
A federal court's remedial power, consistent with the Eleventh Amendment, allows
the remedy of prospective declaratory and injunctive relief. Ex Parte Young, 209
U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). The motion to dismiss Count II as
to the individual defendants in [**7] their official capacity is
denied.
C. Individual defendants sued in their personal capacity and qualified
immunity
Personal capacity suits raise no Eleventh Amendment concerns, even though an
official might have the requisite nexus to the state for his actions to
constitute state action. Kentucky v. Graham, 473 U.S. 159, 165-67, 87 L. Ed. 2d
114, 105 S. Ct. 3099 (1985). Thus, an action for compensatory and punitive
damages is permissible. Defendants argue that plaintiffs sue the university
officials only in their official capacity. But plaintiffs aver the university
officials acted purposefully outside of the scope of their authority. Compl. at
P 24. This is sufficient to allege personal capacity claims against them. See
Richman v. Sheahan, 2000 U.S. Dist. LEXIS 5861, No. 98 C 7350, 2000 WL 343349,
at *5 (N.D. Ill. Mar. 31, 2000); Benning v. Board of Regents of Regency Univ.,
1990 U.S. Dist. LEXIS 3068, No. 89 C 20072, 1990 WL 32305, at *3 (N.D. Ill. Feb.
12, 1990).
Alternatively, defendants argue qualified immunity prevents recovery of damages
against them. Qualified immunity protects public officials from monetary
liability when their conduct does not violate clearly established [**8]
rights. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct.
2727 (1982); Kitzman-Kelley v. Warner, 203 F.3d 454, 457 (7th Cir. 2000). To
determine whether an official's conduct violates clearly established law
requires a two-step inquiry. First, plaintiffs must show that the law was
clearly established when the challenged conduct occurred. The question is
"whether the law was clear in relation to the specific facts confronting
the public official when he or she acted." Apostol v. Landau, 957 F.2d 339,
341 (7th Cir. 1992). Second, the objective legal reasonableness of defendants'
conduct is evaluated by asking whether reasonably competent officials would
agree on the application of the clearly established right to a given set of
facts. Id. at 341. See also Henderson v. DeRobertis, 940 F.2d 1055,
1059 (7th Cir. 1991), cert. denied, 503 U.S. 966, 118 L. Ed. 2d 220,
112 S. Ct. 1578 (1992).
Plaintiffs argue that since Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S.
503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969) was decided, public school students
[**9] have been entitled to freedom of expression protections
guaranteed by the First Amendment, and that the United States Supreme [*786]
Court extended these protections to student publications. Because of the
long-standing precedent supporting freedom of speech and press at state
universities, plaintiffs' argue defendants could not have been unaware that
their actions clearly violated plaintiffs' First Amendment rights. Defendants
are immune from suit only if they were not on notice that their behavior was
"probably unlawful." Montville v. Lewis, 87 F.3d 900, 902-03 (7th Cir.
1996). Efforts to frustrate students' freedom of speech has been a clear
violation of law for well over a quarter of a century. The alleged closing of
Innovator and other conduct designed to assert control over its publication;
meddling with plaintiffs' communications; and denying plaintiffs access to
Innovator for more than a month are all actions that would clearly violate
plaintiffs' freedom of speech. Further, defendants admit that editorial control
over Innovator would be a clear violation of law, but assert plaintiffs failed
to allege conduct amounting to editorial control. However, viewed in a light
[**10] most favorable to plaintiffs, defendants' conduct constitutes
editorial control, and clearly violates established First Amendment law.
Defendants are not entitled to qualified immunity.
III. Count I
First Amendment freedom of speech and freedom of press are protected from
intrusion by state action by the Fourteenth Amendment. Lovell v. City of
Griffin, 303 U.S. 444, 450, 82 L. Ed. 949, 58 S. Ct. 666 (1938). Defendants
argue that plaintiffs fail to allege personal involvement on the part of the
university officials, and therefore the § 1983 claims must be dismissed. To be
liable under § 1983, a defendant must be personally involved in the alleged
constitutional deprivation. Zimmerman v. Tribble, 226 F.3d 568, 574 (7th Cir.
2000); Starzenski v. City of Elkhart, 87 F.3d 872, 879 (7th Cir. 1996), cert.
denied, 519 U.S. 1055, 136 L. Ed. 2d 608, 117 S. Ct. 683 (1997). However,
plaintiffs allege that all defendants (including Governors State
officials) are guilty of conduct that violates the First Amendment. Viewed in a
light most favorable to plaintiffs, the complaint states a First Amendment claim
against [**11] the university officials.
A. Freedom of speech
A key inquiry regarding plaintiffs' First Amendment claims is the type of forum
Innovator involves. The forum dictates the extent and circumstances under which
the government may intrude into the First Amendment rights of students. A public
forum "by long tradition or by government fiat [is] . . . devoted to
assembly and debate." Perry Educ. Ass'n v. Perry Local Educators' Ass'n,
460 U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). In a public forum, the
state's right to limit expression is sharply circumscribed; restrictions may be
enforced only if narrowly drawn to serve a compelling interest. Id. Similarly,
time, place, and manner regulations are permitted only if narrowly tailored to
serve an important government interest and leave ample alternative channels of
communication. Id.
Defendants concede that Innovator serves as a public forum. Therefore,
defendants face a heavy burden to justify the restrictions imposed on Innovator,
including the arbitrary closing of this forum to plaintiffs until they submit to
university screening of each issue's content; tampering with written
communications [**12] regarding Innovator; and denying plaintiffs
entry to Innovator's office. Defendants offer no governmental interest as a
reason for their actions. Plaintiffs state a First Amendment claim for freedom
of speech. Without any legal support, defendants argue only conduct motivated by
attempts "to [*787] assert editorial control over the content
of a university newspaper" violate the First Amendment, and that plaintiffs
have not alleged such conduct. Def. Br. at 4-5. Editorial control is not
required for a First Amendment claim; stifling freedom of speech in a forum
opened for discussion is sufficient. Perry, 460 U.S. at 45-46; Tinker, 393 U.S.
at 509-514. Moreover, plaintiffs have alleged editorial interference.
B. Freedom of press
As a state university newspaper, Innovator is entitled to constitutional
protections afforded the press. Miami Herald Publ'g Co. v. Tornillo, 418 U.S.
241, 41 L. Ed. 2d 730, 94 S. Ct. 2831 (1974); Papish v. Board of Curators of
Univ. of Mo., 410 U.S. 667, 35 L. Ed. 2d 618, 93 S. Ct. 1197 (1973); Healy v.
James, 408 U.S. 169, 33 L. Ed. 2d 266, 92 S. Ct. 2338 (1972). This includes
[**13] editorial discretion regarding style and content. Miami
Herald Publ'g Co., 418 U.S. at 258. State intrusion into this process violates
the First Amendment freedom of press. Id. at 256. Innovator's expression is not
unrestricted. Its freedom is tempered by the need to maintain order and
discipline within the educational process. Tinker, 393 U.S. at 509, 511, 513;
Bazaar v. Fortune, 476 F.2d 570, 575 (5th Cir. 1973). It is defendants' burden
to make this showing. Tinker, 393 U.S. at 509.
Under liberal pleading standards, plaintiffs state a First Amendment claim.
Plaintiffs allege defendants stopped publication of Innovator and, without
justification, refused to publish more issues without the approval of Governors
State administrators. Absent a constitutionally viable reason for their actions,
defendants' alleged imposition would violate the First Amendment. See
Fujishima v. Board of Educ., 460 F.2d 1355, 1357-58 (7th Cir. 1972); Antonelli
v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970); ACLU of Va. v. Radford Coll., 315
F. Supp. 893, 896-97 (W.D. Va. 1970). [**14] Plaintiffs also allege
defendants impeded their freedom of press rights by suspending Innovator's
budget without explanation. This too violates freedom of press rights. Stanley
v. Magrath, 719 F.2d 279 (8th Cir. 1983); Joyner v. Whiting, 477 F.2d 456 (4th
Cir. 1973); Korn v. Elkins, 317 F. Supp. 138 (D.Md. 1970).
Additionally, plaintiffs allege numerous other instances where defendants
inhibited Innovator's continued operation, including destruction of materials
and refusal to perform functions necessary for publication. These actions would
violate the First Amendment. Bigelow v. Virginia, 421 U.S. 809, 829, 44 L. Ed.
2d 600, 95 S. Ct. 2222 (1975).
IV. Counts II and III
Defendants argue that by incorporating the allegations of Count I, Counts II and
III are merely duplicative and should be dismissed. A reading of the first
amended complaint shows this argument is frivolous. The relief sought in Count
II is equitable, while Count III seeks punitive damages. These remedies are
substantively different than the compensatory damages sought in Count I. To the
extent plaintiffs also request injunctive relief [**15] in Count I,
that prayer for relief is stricken.
CONCLUSION
The motion to dismiss is granted as to Governors State University and its Board
of Trustees on all claims, and to the individual defendants in their official
capacity in Counts I and III. The motion is denied as to the individual
defendants in their personal capacity on all claims and in their [*788]
official capacity on Count II. The claim for injunctive relief in Count I is
stricken.
ENTER:
Suzanne B. Conlon
United States District Judge
April 27, 2001