MARGARET
HOSTY, et al., Plaintiff, v. GOVERNORS STATE UNIVERSITY, et
al., Defendants.
No.
01 C 500
UNITED
STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2001
U.S. Dist. LEXIS 18873
November 13, 2001, Decided
November 16, 2001, Docketed
DISPOSITION: [*1] Motion for summary judgment
[35-1] granted in part and denied in part. Motion granted as to all defendants
except Patricia Carter. Defendants Dorothy Ferguson and Claude Hill dismissed
pursuant to Fed.R.Civ.P. 4(m).
COUNSEL: For MARGARET HOSTY, JENI PORCHE, plaintiffs: Tamara
Lynn Cummings, Law Office of Joseph V. Roddy, Chicago, IL.
For DONALD BELL, PATRICIA CARTER, STUART FAGEN, PAUL KEYS, JANE WELLS, DEBRA
CONWAY, PEGGY WOODWARD, FRANCIS BRADLEY, PETER GUNTHER, defendants: Gladys M.
Stevens, Illinois Attorney General's Office, Chicago, IL.
For DONALD BELL, TOMMY DASCENZO, PATRICIA CARTER, STUART FAGEN, PAUL KEYS, JANE
WELLS, DEBRA CONWAY, PEGGY WOODWARD, FRANCIS BRADLEY, PETER GUNTHER, JUDY YOUNG,
PAUL SCHWELLENBACH, defendants: Jeffery P. Gray, Edward Charles Seward, III,
Illinois Attorney General's Office, Chicago, IL.
For DONALD BELL, PATRICIA CARTER, STUART FAGEN, PAUL KEYS, JANE WELLS, DEBRA
CONWAY, PEGGY WOODWARD, FRANCIS BRADLEY, PETER GUNTHER, defendants: David Wayne
VandeBurgt, Illinois Attorney General's Office, Chicago, IL.
For ED KAMMER, defendant: Brian P. Mack, Ancel, Glink, Diamond, Bush, DiCianni
& Rolek, P.C., Chicago, IL.
JUDGES: Suzanne B. Conlon, [*2] United States
District Judge.
OPINIONBY: Suzanne B. Conlon
OPINION: MEMORANDUM OPINION AND ORDER
Margaret Hosty, Jeni Porche and Steven Barba, individually and doing business as
Innovator (collectively "plaintiffs"), sue officers of Governors State
University ("GSU") for prior restraint violations of the First
Amendment (Count I), equitable relief (Count II) and punitive damages (Count
III), pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 2202. Defendants move for
summary judgment.
BACKGROUND
I. The Facts
A. The Parties
All facts are undisputed unless otherwise noted. GSU is a state-run institution
in University Park, Illinois. Plaintiffs are GSU students and former editors and
writers of GSU's student newspaper, the Innovator. The Innovator is funded
through student activities fees. Defendant Donald Bell is a GSU program director
and was the administrative liaison to the Student Communications Media Board
("the media board"), which regulates and appropriates the Innovator's
budget. Defendant Tommy Dascenzo was a GSU program director. Defendant Patricia
Carter is Dean of Student Affairs. Defendant Stuart Fagan is President [*3]
of GSU. Defendant Paul Keys is GSU's Provost and Vice President of Academic
Affairs. Defendant Jane Wells is a GSU faculty member. Defendant Debra Conway is
a GSU secretary. Defendant Peggy Woodard is the interim Associate Provost.
Defendants Frances Bradley, Peter Gunther, Ed Kammer, Dorothy Ferguson, Claude
Hill and Judy Young are members of the media board. Defendant Paul Schwellenbach
supervises GSU's mailroom.
B. The Claims
Plaintiffs began working for the Innovator in May 2000. The newspaper has a
faculty advisor that advises the editors and writers on issues of journalistic
standards and ethics. But the student editors and writers are given complete
editorial control over the newspaper, including its subject matter and content.
The faculty advisor normally signs-off on the newspaper before it is sent to the
printer. GSU entered into a contract with Regional Publishing Company to print
the Innovator on a bimonthly basis. However, the newspaper rarely printed that
frequently during plaintiffs' tenure.
In May 2000, the Innovator's office equipment and computers were in disrepair.
During the summer of 2000, the Innovator received new equipment, which included
two digital [*4] scanners and three new computers. One of the
newspaper's computers needed repairs but the media board would not authorize
payment. Plaintiffs contend Donald Bell removed one of the Innovator's computers
that contained the newspaper's files without their permission. Hosty dep. at p.
128; Porche dep. at pp. 146-47. Bell removed and replaced the computer because
plaintiffs had complained the computer was non-functioning. Bell returned the
computer after plaintiffs complained about its removal.
Plaintiffs contend they were denied access to computer software and manuals.
Hosty dep. at pp. 133-35. Bell was the administrator responsible for computer
software. Because software purchased by the media board had disappeared, Bell
stored computer software in his office available upon request. Plaintiffs attest
Bell was rarely in his office when they needed the software. Hosty aff. P 24;
Porche aff. P 24. Plaintiffs also contend Bell, Dascenzo and the media board
inhibited the newspaper's operations by replacing the newspaper's IBM computers
with Macintosh ones. Hosty dep. at pp. 137-39. The media board replaced the IBM
computers with Macintosh computers in order to conform to the media industry
[*5] standard. Plaintiffs disagreed with the media board's
assessment.
Prior to October 31, 2000, plaintiffs contend they were investigating a story
regarding misappropriation of GSU funds and illegal hiring practices. Hosty dep.
at pp. 44-46. Plaintiffs contend their investigations were inhibited because the
Innovator did not have a private facsimile machine or mailbox. Thus, they
contend sources were reluctant to provide the newspaper with tips knowing their
correspondence was not private. Hosty dep. at pp. 84-85. Plaintiffs also contend
persons with keys to the Innovator's office, such as Bell and Dean Carter, could
have seen the projected articles and tips on the newspaper's bulletin board.
Hosty dep. at pp. 62-63.
In late October and early November of 2000, Dean Carter placed two phone calls
to Charles Richards, Regional Publishing's owner and president, regarding the
printing of the Innovator. Richards attests Dean Carter called on behalf of the
GSU administration and ordered Regional Publishing not to print the Innovator
without prior approval of the newspaper's content by a GSU administrator.
Richards attests he informed Dean Carter that requiring prior approval was
probably unconstitutional; [*6] Carter responded that Richards must
call her personally before printing the next issue of the newspaper and reminded
him that GSU paid Regional Publishing. Richards aff. PP 4-6, 8. Richards
recorded the nature of his conversations with Dean Carter in a letter and sent a
copy to plaintiffs. Id. at P 10-11. Dean Carter denies she demanded
prior approval and contends she instructed Richards to call her regarding the
newspaper so that a faculty member could review the paper for journalistic
quality, e.g., grammatical mistakes. She contends this was necessary
because the newspaper's faculty advisor was at a new post four hours from campus
and was not readily available to assist the Innovator staff. Carter dep. at pp.
12-15.
After being informed of the conversations with Regional Publishing, President
Fagan had Vice President Keys question Dean Carter about the phone calls and
Richards' letter. Dean Carter informed Keys that Richards' characterization of
the phone calls was inaccurate and that she did not instruct Regional Publishing
to "halt the presses." Vice President Keys did not contact Richards or
the plaintiffs about the phone calls. Vice President Keys believed Richards'
[*7] letter was inaccurate and reported his conversations with Dean
Carter to President Fagan. During this same time period, plaintiffs distributed
a letter to the GSU community regarding Dean Carter's phone calls to Regional
Publishing and reported the matter to the Illinois College Press Association.
Prior to Dean Carter's phone calls, the October 31, 2000 issue of the Innovator
had already been printed and delivered. Plaintiffs continued to work on the
newspaper after the October 31 issue, but contend they did not submit any
further issues to Regional Publishing because of its hesitation to print the
newspaper after Dean Carter's phone calls. Specifically, Regional Publishing did
not want to risk printing the newspaper and not being paid by GSU. Beedie
(Regional Publishing manager) aff. PP 4-5; Hosty dep. at pp. 22, 34-37; Porche
dep. at pp. 33-34.
The media board approves the budget and expenditures for the Innovator and other
student media. The November and December 2000 media board meetings were
canceled. The November meeting was canceled so the new administrative liaison to
the media board, Donald Bell, could familiarize himself with the issues pending
before the media board. Bell [*8] was appointed administrative
liaison one week before the scheduled November meeting. The December meeting was
canceled due to the hospitalization of media board chairman Ed Kammer.
Plaintiffs contend the cancellations prevented them from publishing the
newspaper because the media board controlled the essential funds. Hosty dep. at
p. 16. Bell and media board members Bradley, Gunther, Kammer and Young all
attest the cancellations were reasonable and did not inhibit the newspaper's
progress because the Innovator's budget was already in place. Bell dep. at pp.
52-53, 112-13; Bradley aff. at P 6; Gunther aff. PP 6-7; Kammer aff. PP 6-9;
Young aff. P 6. Moreover, in a letter announcing cancellation of the December
meeting, Bell stated he would authorize printing of the newspaper if the editors
had an issue ready for publication. Plaintiffs contend there was no point in
printing a December edition of the newspaper because the students had left for
winter break. Hosty dep. at pp. 113-14. Plaintiffs Hosty and Porche also attest
the media board held a meeting regarding their tenure as editors in February
2001. They attest Bell placed a GSU policeman outside the meeting room to
prevent them [*9] from entering. Porche aff. P 20; Hosty aff. P 20.
In the summer of 2000, plaintiffs reported break-ins to the Innovator's office
to Bell, Dascenzo and the media board. Plaintiffs contend Bell informed them he
would file reports with GSU police and have the Innovator's locks changed. Hosty
dep. at pp. 116-17. Plaintiffs attest after Bell failed to act, they reported
the break-ins to GSU police and their faculty advisor, who had the locks
changed. Id.; Porche aff. P 18; Hosty aff. P 18. Bell and Dascenzo
attest that when plaintiffs informed them of the break-ins, they advised
plaintiffs to refer the matter to GSU police. Bell dep. at pp. 74-76; Dascenzo
aff. P 8. Bell and Dascenzo had keys to the newspaper's office, but they did not
distribute the keys to any unauthorized individuals.
In October 2000, GSU police changed the newspaper's locks for a second time. As
a result, plaintiffs were required to contact GSU police to gain access to the
office for five weeks. Plaintiffs attest defendants Carter, Conway, Bell, Kammer
and Wells knew the locks had been changed. Porche aff. P 19, Hosty aff. P 19.
Plaintiffs contend the delay in gaining access to the newspaper's office
disrupted [*10] the Innovator's press schedule. Porche aff. P 21;
Hosty aff. P 21.
Plaintiffs claim the phone lines to the Innovator's office were disconnected for
approximately two hours on October 25, 2000, but present no evidence of
defendants' involvement. Porche dep. at p. 76. Plaintiffs also contend Innovator
e-mail messages were tampered with and deleted, but fail to present evidence of
defendants' involvement. Id. at pp. 98-105. Plaintiffs claim Debra
Conway destroyed Innovator advertisement forms and failed to process Innovator
purchase orders. Porche dep. at pp. 121, 123, 126; Hosty dep. at p. 124. Conway
denies ever destroying or failing to process Innovator materials. Conway aff. PP
12-20. Finally, plaintiffs contend Paul Schwellenbach tampered with Innovator
mail. Hosty dep. at p. 128; Porche dep. at pp. 131, 136-37. Schwellenbach denies
tampering with Innovator mail. He admits returning mail to Jeni Porche because
he thought it was personal mail and GSU does not provide postage for private
correspondence. Schwellenbach aff. PP 13-15.
DISCUSSION
I. Standard of Review
Summary judgment is appropriate when the moving papers and affidavits show there
is no genuine issue of [*11] material fact and the movant is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548
(1986); King v. Nat'l Human Res. Comm., Inc.,218 F.3d 719, 723 (7th
Cir. 2000). Once a moving party has met its burden, the nonmoving party must go
beyond the pleadings and set forth specific facts showing there is a genuine
issue for trial. Fed. R. Civ. P. 56(e); Silk v. City of Chicago, 194
F.3d 788, 798 (7th Cir. 1999). The court considers the record as a whole and
draws all reasonable inferences in the light most favorable to the party
opposing the motion. Bay v. Cassens Transp. Co., 212 F.3d 969, 972 (7th
Cir. 2000). A genuine issue of material fact exists when "the evidence is
such that a reasonable jury could return a verdict for the nonmoving
party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L.
Ed. 2d 202, 106 S. Ct. 2505 (1986); Insolia v. Philip Morris, Inc., 216
F.3d 596, 599 (7th Cir. 2000).
II. Section 1983 Liability
In § 1983 actions, an individual cannot be held liable [*12] unless
he caused or participated in the asserted constitutional violation. Zimmerman
v. Tribble, 226 F.3d 568, 574 (7th Cir. 2000). Defendants argue that other
than Dean Carter, plaintiffs fail to establish individual involvement on the
part of each defendant, and therefore the § 1983 claims must fail.
Plaintiffs contend Bell violated their First Amendment rights by denying them
access to essential computer software and manuals, temporarily removing an
Innovator computer without permission, failing to investigate break-ins to the
newspaper's office, and cancelling the November and December media board
meetings. Plaintiffs contend Tommy Dascenzo, Judy Young, Peter Gunther and
Francis Bradley violated their First Amendment rights by replacing the IBM
computers with Macintosh ones, failing to investigate break-ins to the
newspaper's office, and holding a private meeting regarding plaintiffs' status
as editors. Plaintiffs claim Debra Conway violated their First Amendment rights
by failing to process Innovator requests and destroying Innovator advertisement
forms. Plaintiffs contend Paul Schwellenbach violated their First Amendment
rights by tampering with Innovator mail. [*13] Thus, viewed in a
light most favorable to plaintiffs, there is evidence that defendants Bell,
Dascenzo, Conway, Bradley, Gunther, Young and Schwellenbach individually
participated in the asserted First Amendment violations.
Plaintiffs contend President Fagan and Vice President Keys participated in the
asserted constitutional violations by failing to adequately investigate Dean
Carter's phone calls to Regional Publishing. However, the doctrine of respondeat
superior cannot be used to hold a supervisor liable for the asserted
unconstitutional acts of a subordinate. Chavez v. Ill. State Police,
251 F.3d 612, 651 (7th Cir. 2001); Zimmerman, 226 F.3d at 574.
Plaintiffs must show Keys and Fagan were personally involved in unconstitutional
conduct, or that they approved or facilitated the conduct. Chavez, 251
F.3d at 651. But plaintiffs do not claim Keys and Fagan did anything more than
fail to properly investigate Dean Carter's phone calls. A supervisor's
negligence in detecting unconstitutional conduct is insufficient to hold the
supervisor liable. Id. Plaintiffs also fail to present any evidence
that Jane Wells or Peggy Woodard [*14] participated in
constitutional violations. Therefore, summary judgment must be granted for
defendants Keys, Fagan, Wells and Woodard.
III. Qualified Immunity
Alternatively, defendants argue the doctrine of qualified immunity bars
plaintiffs' claims because their conduct did not violate clearly established
constitutional rights. Under the doctrine, "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." Upton
v. Thompson, 930 F.2d 1209, 1211-12 (7th Cir. 1991) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)).
Plaintiffs bear the burden of showing that defendants' conduct violated a
clearly established constitutional right. "This requires the plaintiff[s]
to offer either a closely analogous case or evidence that the defendants'
conduct is patently violative of the constitutional right that reasonable
officials would know without guidance from the courts." Baxter v. Vigo
County Sch. Corp., 26 F.3d 728, 737 (7th Cir. 1994). [*15]
Plaintiffs claim Dascenzo, Bradley, Gunther and Young violated their First
Amendment rights by replacing the IBM computers with Macintosh ones, failing to
investigate break-ins to the newspaper's office, and holding a private meeting
regarding plaintiffs' status as editors. Plaintiffs claim the Macintosh
computers were not suitable for preparing a newspaper and therefore hindered
their ability to publish the Innovator. They also claim the break-ins to the
newspaper's office delayed publication of the Innovator and therefore inhibited
their First Amendment right of expression. Plaintiffs do not present any case
law that establishes a right to a certain type of computer or creates an
affirmative duty on university officials to investigate crimes. Nor was the
conduct of Dascenzo, Bradley, Gunther and Young patently violative of a
constitutional right. Therefore, Dascenzo, Bradley, Gunther and Young are
entitled to qualified immunity.
Plaintiffs claim Debra Conway violated their First Amendment rights by refusing
to process Innovator materials and by destroying Innovator advertisement forms.
Plaintiffs fail to present evidence that Conway's asserted actions were an
attempt to frustrate [*16] their freedom of speech. Nor do they cite
case law to support their claim. Because Conway's asserted conduct did not
violate clearly established rights, she is entitled to qualified immunity.
Paul Schwellenbach is accused of destroying Innovator mail. Schwellenbach admits
he returned mail to plaintiffs when the mail appeared to be personal and did not
have proper postage. Plaintiffs present no evidence Schwellenbach's conduct was
an attempt to frustrate their freedom of speech. Nor do plaintiffs cite
authority to support their claim. Thus, Schwellenbach is entitled to qualified
immunity.
Plaintiffs contend Bell inhibited their freedom of speech by cancelling media
board meetings that were necessary to obtain funds. The only case plaintiffs
cite to support their claim against Bell is Joyner v. Whiting, 477 F.2d
456 (4th Cir. 1973). In Joyner, a university president terminated the
school newspaper's financial support because he disapproved of its editorial
comment. The court held a college may not restrict speech "simply because
it finds the views expressed by any group to be abhorrent." Id. at
460. Thus, the court found the president's withdrawal [*17] of
financial support to be an unconstitutional prior restraint. Id. at
462.
Plaintiffs claim cancellation of media board meetings was the equivalent of
withholding financial support. But Joyner is distinguishable because Joyner
held it is unconstitutional for a college official to suppress speech because
he disagrees with the students' expression. Id. at 460. Here, it is
undisputed the November and December meetings were canceled for legitimate
reasons. Specifically, the November meeting was cancelled in order to allow Bell
time to review the issues before the media board. Bell was appointed
administrative liaison to the media board only one week prior to the November
meeting. The December meeting was cancelled due to the hospitalization of media
board chairman Ed Kammer. Thus, unlike the president in Joyner, Bell
did not cancel the meetings in order to suppress plaintiffs' expression.
Furthermore, Bell explicitly told plaintiffs in his December letter he would
approve funding for the newspaper if they had an issue ready to be published.
Therefore, plaintiffs fail to establish Bell violated a clearly established
constitutional right by [*18] cancelling the meetings.
Plaintiffs also claim Bell violated their First Amendment rights by replacing an
Innovator computer containing confidential files without permission, denying
them access to computer software, and failing to investigate break-ins to the
newspaper's office. Plaintiffs fail to present evidence that Bell's actions were
intended to inhibit their freedom of speech. Rather, it is undisputed Bell
stored the computer software in his office for security reasons and removed and
replaced the computer from the newspaper's office after plaintiffs complained it
was non-functioning. After plaintiffs complained about the computer's removal,
Bell returned it to their office. Plaintiffs also fail to establish Bell had a
duty to investigate the break-ins or was responsible for them. Nor do plaintiffs
cite any cases supporting their claims. Thus, Bell is entitled to qualified
immunity.
Finally, plaintiffs claim Dean Carter's phone calls to Regional Publishing
amounted to an unconstitutional prior restraint. Specifically, plaintiffs claim
they were unable to publish the Innovator after Dean Carter's phone calls
because of her threats to withhold payment to Regional Publishing. [*19]
Plaintiffs cite Fujishima v. Board of Education, 460 F.2d 1355 (7th
Cir. 192), Antonelli v. Hammond, 308 F. Supp. 1329 (D. Mass. 1970), and
Schiff v. Williams, 519 F.2d 257 (5th Cir. 1975), to support their
claim.
In Fujishima, the Seventh Circuit struck down as a prior restraint a
school board rule prohibiting student distribution of literature on school
grounds without obtaining prior approval. 460 F.2d at 1357. In Antonelli,
a university official refused to authorize the printing of future editions of
the university newspaper unless an administrator first approved the newspaper's
content. The Antonelli court opined that "because of the
potentially great social value of a free student voice . . . it would be
inconsistent with basic assumptions of First Amendment freedoms to permit a
campus newspaper to be simply a vehicle for ideas the state or the college
administration deems appropriate." Antonelli, 308 FS at 1337. The fact the
university funded and created the newspaper was immaterial and the court held
the policy was an unconstitutional prior restraint. Id. at 1337-38. See
also Stanley v. Magrath, 719 F.2d 279, 282 (8th Cir. 1983) [*20]
(it is unconstitutional for a public university to take adverse action against a
student newspaper because of the content of the paper); Joyner, 477
F.2d at 460 (4th Cir. 1973) ("if a college has a student newspaper, its
publication cannot be suppressed because college officials dislike its editorial
comment").
In Schiff, the president of a state university dismissed the editors of
the campus newspaper because the editors' poor grammar, spelling and language
expression could have embarrassed the school. 519 F.2d at 257, 261. Schiff
held the "right of free speech embodied in the publication of a college
student newspaper cannot be controlled except under special circumstances."
Id. at 260. The court opined poor grammar and language expression did
not amount to "special circumstances" because these faults could not
lead to a significant disruption on the university campus. Thus, the president's
actions were unconstitutional. Id. at 261. Dean Carter was not
constitutionally permitted to take adverse action against the newspaper because
of its content or because of poor grammar or spelling. Accordingly, there is a
[*21] disputed issue of material fact as to whether Dean Carter's
asserted conduct violated plaintiffs' clearly established First Amendment
rights.
Defendants argue Hazelwood School District v. Kuhlmeier, 484 U.S. 260,
98 L. Ed. 2d 592, 108 S. Ct. 562 (1988), cast doubt on the cases cited by
plaintiffs. The court disagrees. Hazelwood involved a high school
newspaper that was part of a journalism class. There, the Court held no
constitutional violation occurred when a high school principal removed two
articles from the school newspaper. Central to the Court's holding was the fact
the school never opened the pages of the paper to "indiscriminate use"
by student editors, but rather maintained the paper as a supervised learning
experience. Id. at 267, 270. Here, however, all editorial decisions
were made by student editors and the Innovator was not part of a class, but was
an autonomous student organization. The Hazelwood decision is also
distinguishable because it involved a high school as opposed to a university. Id.
at 273 n.7 ("We need not now decide whether the same degree of deference is
appropriate with respect to school-sponsored [*22] expressive
activities at the college and university level"). Therefore, Dean Carter is
not entitled to qualified immunity.
CONCLUSION
The motion for summary judgment is granted as to all defendants except Patricia
Carter.
November 13, 2001
ENTER:
Suzanne B. Conlon
United States District Judge