where a protected liberty interest would exist: "Similarly
there is no suggestion that the state, in declining to
re-employ [the plaintiff], imposed on him a stigma or other
disability that foreclosed his freedom to take advantage of
other opportunities." Id.
In a subsequent case, Paul v. Davis, 424 U.S. 693, 710, 96
S.Ct. 1155, 1165, 47 L.Ed.2d 405 (1976), the Court reiterated
its recognition of the constitutionally protected liberty
interest: "Thus it was not thought sufficient to establish a
claim under Section 1983 and the Fourteenth Amendment that
there had simply been a defamation by a state official, the
defamation had to occur in the course of termination of
It is clear that the United States Supreme Court recognizes
discharge from employment by the state when coupled with
defamatory charges against the employee as an interest which
warrants due process protection. The Seventh Circuit Court of
Appeals subsequently recognized the protected liberty interest
of an individual discharged from employment by the state in
conjunction with defamation by a state official in Colaizzi v.
Walker, 542 F.2d 969 (7th Cir. 1976), cert. denied,
430 U.S. 960, 97 S.Ct. 1610, 51 L.Ed.2d 811 (1977). In Colaizzi, the
court discussed Roth in light of Paul v. Davis, and stated:
". . . [I]nfliction of a stigma to reputation accompanied by a
failure to rehire (or a fortiori, by a discharge) states a
claim for deprivation of liberty without due process within the
meaning of the Fourteenth Amendment. Moreover, this combination
of stigma plus failure to rehire/discharge states a claim even
if failure to rehire or discharge of itself deprives the
plaintiff of no property interest within the meaning of the
Fourteenth Amendment." Colaizzi, 542 F.2d at 973.
Under the above-mentioned standard used to decide a motion to
dismiss, taking the allegations of the plaintiff as true, the
plaintiff may establish that the requisite stigma plus failure
to rehire occurred as a result of actions taken by the
defendant state officials. If these facts are established, a
constitutionally protected interest of the plaintiff has been
violated. Therefore, the motion to dismiss for failure to state
claim on which relief can be granted, based on the contention
that no constitutional interest of the plaintiff has been
violated, is denied.
Defendant Logan contends that as a public official he is
entitled to immunity from any liability which may result from
any actions he may have taken related to the plaintiff's
discharge from his state employment. Logan claims that the
action against him is barred. He supports this contention by
citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982).
The Court in Harlow recognized two kinds of official immunity
defenses. "Absolute immunity" applies to officials whose
special functions or constitutional status require complete
protection from suit. Id. at 2733. "Qualified immunity" is
the norm for executive officials in general. The Court held
that "government officials performing discretionary functions
generally are shielded from liability insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Id. at 2738.
The Seventh Circuit Court of Appeals addressed the issue of
official immunity in Colaizzi v. Walker, 655 F.2d 828 (7th
Cir. 1981). The case had a similar fact pattern to the present
one. The court discussed the defense of qualified immunity for
government officials. "The proper question for the district
court to have considered [was] whether the defendants, in good
faith, had reason to believe the procedures they followed
satisfied the due process requirements of Board of Regents v.
Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). . ."
Colaizzi, 655 F.2d at 831.
In Colaizzi, the court found that a summary judgment for the
defendants [public officials] was improper on the issue of
qualified immunity because factual disputes existed as to the
nature and extent of hearings given to the plaintiffs, and
whether or not such hearing opportunities, if any, satisfied
due process of law. 655 F.2d at 831. The court stated that "in
order for the trial court to have entered judgment upon . . .
the defense [that due process was provided] undisputed facts
must have been established . . . that the plaintiffs had been
afforded appropriate notice and an opportunity to be heard
prior to the public announcement of charges against them. . .
Since disputed facts were present, the case was not ripe for
The reasoning of both Harlow and Colaizzi is applicable to
the present case. Under the above-mentioned standard for a
motion to dismiss, the plaintiff may establish that his
constitutional right to notice and an opportunity to be heard
prior to his discharge was clearly established. Harlow,
supra. The plaintiff may also establish that his right to
notice and a hearing were not provided prior to the public
announcement of the charges against him. Colaizzi, supra. If
the plaintiff does establish these facts, the defense of
qualified immunity is not available to the defendant. See
also, Crowder v. Lash, 687 F.2d 996 at 1007 (7th Cir. 1982).
Under the standard applicable for a motion to dismiss, the
motion is denied on the basis of immunity of defendant Logan as
a state official.
LACK OF PERSONAL INVOLVEMENT
Defendant Logan contends that the plaintiff's complaint should
be dismissed based on a lack of sufficient allegation of
personal involvement by Logan. Logan relies on Duncan v.
Nelson, 466 F.2d 939, 943 (7th Cir. 1972), cert. denied,
409 U.S. 894, 93 S.Ct. 116, 34 L.Ed.2d 152 (1972) for the
proposition that "in an action under Section 1983, a plaintiff
is required to set forth specific illegal misconduct and
resultant harm in a way which will permit an informed ruling
whether the wrong complained of is of federal cognizance."
Under the standard enunciated above for sustaining a complaint
under a motion to dismiss, the plaintiff's complaint does
allege sufficient misconduct by Logan. See Durso v. Rowe,
579 F.2d 1365, 1371 n. 6 (7th Cir. 1978); Craft v. Board of
Trustees, 516 F. Supp. 1317, 1325 (N.D.Ill. 1981).
The motion to dismiss for failure to state a claim due to lack
of sufficient allegations of personal involvement of defendant
Logan is denied.
ELEVENTH AMENDMENT AS A BAR TO THE ACTION
Defendants contend that the Eleventh Amendment of the
Constitution of the United States bars plaintiff's action
against the defendants because plaintiff's action is actually
one against the state. To support this argument, defendants
cite Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39
L.Ed.2d 662 (1974) and Shashoua v. Quern, 612 F.2d 282 (7th
Cir. 1979). The Court in Edelman stated the rule that a "suit
by private parties seeking to impose a liability which must be
paid from public funds in the state treasury is barred by the
Eleventh Amendment." 415 U.S. at 663, 94 S.Ct. at 1356.
Shashoua is in accord.
In the present case, however, the plaintiff does not seek to
impose liability which must be paid from public funds.
Therefore, the reasoning of Edelman v. Jordan is not
applicable to the present case. The reasoning of Scheuer v.
Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974),
however, is relevant. The Court stated:
Since Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 [52 L.Ed.
714] (1908), it has been settled that the Eleventh Amendment
provides no shield for a state official confronted by a claim
that he had deprived another of a federal right under color of
state law. . . [W]hile it is clear that the doctrine of Ex
parte Young is of no aid to the plaintiff seeking damages from
the public treasury, Edelman v. Jordan, supra, . . . damages
defendants are a permissible remedy against individual
defendants in some circumstances notwithstanding the fact that
they hold public office.
The court in Scheuer analyzed the complaints before it in
light of this reasoning. It held that the plaintiffs alleged
facts that demonstrated that they sought to impose individual
and personal liability on the named defendants for what they
claimed — but had not yet established by proof — was a
deprivation of federal rights by the defendants under color of
state law. The court stated: "[W]hatever the plaintiffs may or
may not be able to establish as to the merits of their
allegations, their claims, as stated in the complaints, given
the favorable reading required by the Federal Rules of Civil
Procedure, are not barred by the Eleventh Amendment." Id.,
416 U.S. at 238, 94 S.Ct. at 1687.
In the present case, Augustine has alleged a cause of action
against all the defendants personally sufficient to withstand a
motion to dismiss. Therefore, the motion to dismiss based on
lack of subject matter jurisdiction based on the Eleventh
Amendment of the United States Constitution is denied.
REMEDY OF REINSTATEMENT
Defendants Edgar and Mariades contend that, if the motion to
dismiss is not granted, the remedy of reinstatement requested
by the plaintiff is inappropriate and should be stricken from
the complaint. For the following reasons, the motion to strike,
the remedy of reinstatement is denied.
The defendants contend that as a matter of law, the plaintiff
is not entitled to reinstatement to his position. To support
their contention, Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct.
882, 883, 51 L.Ed.2d 92 (1977), is cited for the proposition
that the remedy mandated by the Due Process Clause of the
Fourteenth Amendment is solely "an opportunity to refute the
charge." In Codd, the facts were such that a hearing to
refute the charge was not required because the plaintiff did
not dispute the truth of the stigmatizing charge. This clearly
is not the case in the instant action.
Defendants cite cases from other jurisdictions in which the
courts did not grant the remedy of reinstatement for the
violation of the plaintiffs' liberty interests. See Graves v.
Duganne, 581 F.2d 222 (9th Cir. 1978) and Dennis v. S & S
Consolidated Rural High School District, 577 F.2d 338 (5th
Cir. 1978). However, plaintiff cites McGhee v. Draper,
639 F.2d 639, 646 (10th Cir. 1981) which stated that reinstatement
may be an appropriate remedy if a plaintiff can prove that, if
full procedural due process rights had been provided, plaintiff
would have been retained in the position.
Therefore, the circuits are not in accord. It is not clear that
the remedy of reinstatement is inappropriate as a matter of
law. The motion to strike reinstatement as a remedy is denied
at this time.
It is so ordered.
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