Hosty v. Governors State University

174 F. Supp. 2d 782, 2001 WL 467927
CourtDistrict Court, N.D. Illinois
DecidedApril 30, 2001
Docket01 C 0500
StatusPublished

This text of 174 F. Supp. 2d 782 (Hosty v. Governors State University) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hosty v. Governors State University, 174 F. Supp. 2d 782, 2001 WL 467927 (N.D. Ill. 2001).

Opinion

174 F.Supp.2d 782 (2001)

Margaret HOSTY, et al., Plaintiffs,
v.
GOVERNORS STATE UNIVERSITY, et al., Defendants.

No. 01 C 0500.

United States District Court, N.D. Illinois, Eastern Division.

April 30, 2001.

*783 Tamara Lynn Cummings, Law Office of Joseph V. Roddy, Chicago, IL, for plaintiffs.

Gladys M. Stevens, Jeffrey P. Gray, Edward Charles Seward, III, David W. Van de Burgt, Illinois Attorney General's Office, Brian P. Mack, Ancel, Glink, Diamond, Bush, DiCianni & Rolek, P.C., Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

CONLON, District Judge.

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") 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 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 ¶¶ 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 ¶¶ 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 ¶¶ 24c,f,g,i,l-m. Defendants have destroyed materials essential to Innovator's operation, and have removed newspaper files. Id. at ¶¶ 24h,j. Finally, defendants have denied plaintiffs admittance to Innovator's office for more than a month. Id. at ¶ 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, a state agency or a state official. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-02, 104 S.Ct. 900, 79 L.Ed.2d 67 (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, 104 S.Ct. 900. 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.1991); 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, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). It is assumed that a public official is sued in an official capacity 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, 109 S.Ct. 2304; Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, reh'g denied, 416 U.S. 1000, 94 S.Ct. 2414, 40 L.Ed.2d 777 (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, 99 S.Ct. 1139, 59 L.Ed.2d 358 (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,

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