Crosby v. University of Kentucky
Filing
22
MEMORANDUM OPINION AND ORDER: (1) Plaintiff's Motion for Temporary Injunction 1 is DENIED AS MOOT; (2) Defendants' Motion to Dismiss 4 is DENIED AS MOOT; (3) Defendants' Motion to Dismiss 12 is GRANTED; (4) Plaintiff's Motion for Leave to File Oversized Memorandum 15 is GRANTED; and (5) Plaintiff's Motion for Hearing 17 is DENIED AS MOOT. Signed by Judge Joseph M. Hood on 9/30/2016. (STC)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
RICHARD A. CROSBY, PhD,
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Plaintiff,
vs.
DR. ELI CAPILOUTO,
TIMOTHY TRACY, PhD,
WILLIAM THRO,
WAYNE T. SANDERSON, PhD, CIH,
TERRY ALLEN,
Each in individual and
Personal capacity
Defendants.
**
**
I.
This
matter
is
before
**
Civil Action 15-cv-276-JMH
MEMORANDUM OPINION AND ORDER
**
**
Introduction
the
Court
upon
several
motions,
including: Defendants’ motion to dismiss; Plaintiff’s motion to
file an oversized memorandum; and Plaintiff’s motion for a hearing.
The previous defendant in this matter, the University of Kentucky
(“the
University”),
moved
to
dismiss
Plaintiff’s
original
complaint for lack of jurisdiction and failure to state a claim
under which relief could be granted.
That motion, as well as
Plaintiff’s motion for a preliminary injunction, which was carried
over
from
state
court,
will
be
1
denied
as
moot,
because
the
University of Kentucky was terminated as a defendant on October
13, 2015, when Plaintiff filed his Verified Amended and Substituted
Complaint,
naming
the
current
defendants
University from the complaint.
and
omitting
the
Plaintiff’s motion to file an
oversized memorandum will be granted; Plaintiff’s motion for a
hearing will be denied as moot; and Defendants’ motion to dismiss
will be granted.
II.
A
motion
Procedure
complaint.
to
12(b)(6)
dismiss
tests
Standard of Review
pursuant
the
to
Federal
sufficiency
of
Rule
the
of
Civil
plaintiff’s
The court views the complaint in the light most
favorable to the plaintiff and “must accept as true well-pleaded
facts set forth in the complaint.”
PR Diamonds, Inc. v. Chandler,
364 F.3d 671, 680 (6th Cir. 2004) (internal quotation omitted).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that
is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Id.
III. Factual Background
2
The facts of this case have been set forth in great detail in
Plaintiff’s
42-page
complaint
and
56-page
memorandum.
The
following is a synopsis of the salient facts:
Plaintiff Richard A. Crosby, PhD, has been a tenured faculty
member in the University of Kentucky College of Public Health since
2004.
Plaintiff has received numerous impressive awards and
accolades
throughout
his
distinguished
academic
career.
For
example, he secured a $2.86 million grant for the College of Public
Health from the National Institute of Health, he was named an
Associate Research Fellow by the Kinsey Institute, he authored
textbooks and dozens of scholarly articles, and he received good
reviews from his students and superiors at the University.
[DE 9,
Ver. Am. and Sub. Compl., ¶¶ 12-23.]
Plaintiff was appointed to a four-year term as Chairman of
the Department of Health Behavior in 2006, reappointed in 2010,
and reappointed again in 2014.
The 2014 appointment would have
expired in 2018; however, in July 2015, the Dean of the College,
Wayne Sanderson, PhD (a named defendant in this case), acting on
the advice of the University’s Office of Institutional Equity and
Equal Opportunity (OIEEO) and Dr. Timothy Tracy, Provost (another
named defendant), removed Plaintiff from his position as Chairman.
[DE 9, Ver. Am. and Sub. Compl., Ex. 4, 5, and 6.]
This removal
came after an investigation of accusations that Plaintiff acted
inappropriately in his role as department chair.
3
Accusations
included that Plaintiff suggested an Associate Dean obtained her
position “because she is a woman, genitalia,” and that Plaintiff
was prone to angry and emotional outbursts, retaliation, scolding,
and yelling.
Some of the accusations reflected that the accusers
were afraid of Plaintiff and more than one complaint described him
as “volatile” or “explosive.” [DE 9, Ver. Am. and Sub. Compl., Ex.
4.]
Plaintiff has categorically denied these accusations.
Plaintiff complains he was not afforded the procedural due
process he was entitled to pursuant to various University rules
and regulations, as well as Kentucky state law. On June 3, 2015,
Defendant Sanderson placed Plaintiff on administrative leave with
pay and advised him that the OIEEO had opened an investigation
regarding accusations of Plaintiff’s inappropriate behavior.
On
June 23, 2015, the OIEEO, in a letter signed by Defendant Allen,
informed Defendant Tracy and counsel for the University that it
had completed its investigation of Plaintiff, which included a
brief interview of Plaintiff, and that based on the investigation,
the Office of Institutional Equity and Equal
Opportunity finds Richard A. Crosby’s behavior
as Chair of the Department of Health Behavior
in violation of the University’s Governing
Regulation Ethical Principles:
•
•
•
Mutual Respect and human dignity
Personal
and
institutional
responsibility and accountability
Exhibits personal integrity, honesty,
and responsibility in all actions
4
•
Provides an environment of
respect,
impartiality,
collaboration
mutual
and
[DE 9, Ver. Am. and Sub. Compl., Ex. 4.]
In this letter, the OIEEO recommended Plaintiff be removed
from his position as department chair.
The letter suggested
finding a beneficial working arrangement for Plaintiff, as well as
“professional staff development for all personnel of the College
of
Public
Health”
to
help
identify,
prevent,
and
remediate
inappropriate behavior. There was no mention of any change in
Plaintiff’s status as a tenured faculty member.
Defendant Tracy
wrote to Defendant Sanderson on July 2, 2015, authorizing him to
take the actions suggested in the OIEEO letter.
By letter dated
July 7, 2015, Defendant Sanderson informed Plaintiff he was ending
his administrative leave (so that Plaintiff could return to campus)
but also ending his appointment as department chair, effective
immediately.
Plaintiff was provided with a new assistant and
required to move his office to the Gerontology Department (though
his faculty appointment remained in the Department of Health
Behavior).
Plaintiff, through counsel, notified the University
that he was demanding a hearing pursuant to “Governing Regulation
XX” on July 13, 2105.
Counsel for the University responded on
July 15, 2015, explaining that “Governing Regulation XX” was a
proposed regulation upon which Plaintiff could not base his request
for
an
appeal;
however,
Plaintiff
5
could
base
his
request
on
Governing
Regulation
I(F).
Accordingly,
Counsel
for
the
University stated that because Provost Tracy had directed the
action against Plaintiff, Plaintiff should direct his appeal to
the President of the University, Eli Capilouto, PhD, another
defendant in this case.
Plaintiff’s counsel responded to University counsel’s letter,
stating
citing
Plaintiff’s
his
dissatisfaction
preference
for
the
with
process
the
in
appeals
proposed
process,
Governing
Regulation XX, and threatening that “[i]f the President does not
reverse the decision, Dr. Crosby will proceed to a court of
competent jurisdiction to secure his rights to due process of law
so that he may protect his property.”
Compl., Ex. 11.]
[DE 9, Ver. Am. and Sub.
The record reflects Plaintiff filed this lawsuit
in state court on September 3, 2015, the University was served on
September 9, 2015, and on September 23, 2015, University counsel
advised
Plaintiff’s
lawyer
that
the
President
suspended
his
investigation of Plaintiff’s appeal due to the pending litigation.
IV.
Discussion
Plaintiff alleges three causes of action: (1) a cause of
action pursuant to 42 U.S.C. §§ 1983, 1988 for violation of his
due process rights; (2) violations of the guarantees of due process
pursuant to the Kentucky Constitution; and (3) breach of contract.
All three causes of action are brought against the defendants in
their “individual and personal capacities” and not against the
6
University or the defendants in their official capacities.
All
three causes have no basis in law or fact and cannot withstand
Defendants’ Rule 12(b)(6) motion.
A. Plaintiff has no protect property interest in the
position of Department Chair
Plaintiff asserts he had a protected property interest in his
position as department chair that could is protected by procedural
due process rights. Property interests “are created and their
dimensions are defined by existing rules or understanding that
stem
from
an
understandings
independent
that
source
secure
certain
such
as
benefits
claims of entitlement to those benefits.”
state
and
law—rule
that
or
support
Bd. of Regents of State
Colleges v. Roth, 408 U.S. 564, 577 (1972).
In that case, the
Supreme Court was clear that a person must have a “legitimate claim
of entitlement” to the property interest they seek to be protected
procedural due process; a “desire” or “abstract concern” for it is
insufficient. Id. at 577-78.
For the reasons stated below, the
Court holds that there was no state statute, regulation, University
regulation, rule, or policy which created a protected property
interest in Plaintiff’s position as department chair.
While Dr.
Crosby understandably had a desire to continue in his position as
department chair, he cannot prove he had a protected right to it.
Defendants
do
not
contest
that
Plaintiff
is
a
tenured
professor and that tenure at the University comes with certain
7
rights and protections.
However, Defendants assert, and the Court
agrees, that the basis of Plaintiff’s claims is “an erroneous
conflation of Dr. Crosby’s capacity as a tenured faculty memberwhich
is
appointment
unchanged-and
as
Chair
of
his
removal
the
from
Department
of
the
administrative
Health
Behavior.”
[Defs.’ Reply in Supp. Mot. to Dismiss, p. 1, DE 20.]
Plaintiff’s position as a tenured faculty member is distinct
from his administrative position as a department chair. This point
is so obvious it seems a waste of paper to elaborate further, yet
it is clear the Court must provide this analysis for Plaintiff’s
understanding.
Plaintiff admits he was a tenured faculty member for many
years prior to becoming department chair.
The position of tenured
faculty member obviously exists independently from the position of
department chair, and Plaintiff acknowledges he “did not cease
being a faculty member when he became Chairman of the Department
of Health Behavior.”
[Pl.’s Mem., p. 28, DE 16].
The Court would
add that Plaintiff did not stop being a tenured faculty member
when he was removed from the department chair position, either.
Plaintiff seems to argue that the University of Kentucky
Governing
Regulation
Part
VII(A)(6)(a) 1
1
created
a
protected
Neither party attached the full text of the Governing Regulations discussed
herein as exhibits to their pleadings, motions, or memoranda. The content of
the Governing Regulations cited herein is not in dispute by the parties,
although the application of them is. The Court takes judicial notice of the
content of University of Kentucky’s Governing Regulations in effect at the
8
property interest akin to a faculty position because it mandates
that faculty departments “shall consist of a chair” who must be a
member
of
the
faculty
of
the
school.
Plaintiff
makes
the
implausible analytical leap that “[b]y the terms created by the
University, department chairs are faculty members.
As such, they
are not at-will employees.” [Pl.’s Mem., p. 28, DE 16]
Whether or
not the employee is at-will does not stem from his administrative
appointment as a department chair—which is not a job someone can
independently hold at the University without also being a faculty
member—but originates from that person’s status as a faculty
member.
A University employee can be a tenured faculty member
before, during, and after serving in an administrative role such
as department chair, just as Plaintiff was in this case.
Plaintiff claims the University Governing Regulation, Part
VIII(A)(4)(a), supports his argument that he had a protected
property interest in the position of department chair akin to a
tenured
position,
because
the
Governing
Regulation
provides,
“[t]he term of a department chair’s appointment shall be four (4)
years, except in the Colleges of Agriculture, Dentistry, Medicine,
Nursing, and Pharmacy where it shall be six (6) years.”
Plaintiff
time Plaintiff was removed from his position as department chair, which are
available at http://www.uky.edu/regs/gr.htm and archives of the same.
Pursuant to Fed. R. Ev. 201, “The court may judicially notice a fact that is
not subject to reasonable dispute because it . . . (2) can be accurately and
readily determined from sources whose accuracy cannot reasonably be
questioned.” Furthermore, “The court may take judicial notice at any stage
of the proceeding.”
9
alleges this subpart prohibits the University from removing him
from this position prior to the expiration of any of his four year
terms
of
service.
However,
this
section
of
the
Governing
Regulations does not speak to early removal—or even a faculty
member’s early resignation—from the position of department chair.
In fact, Part VIII(A)(4)(a) of the Governing Regulation continues:
Ordinarily, a department faculty member will
be asked to serve as chair for only one (1)
term. A chair may be reappointed, however,
when the faculty advisory committee appointed
to review the work of the department (AR 1:4)
finds that the particular circumstances and
needs
of
the
department
make
such
a
reappointment desirable. Reappointment beyond
the second term may occur under exceptional
circumstances when it is deemed to be in the
best interests of the University. This
practice
may
vary
from
discipline
to
discipline.
Implicit in this portion of Part VIII(A)(4)(a) that each
department has discretion in meeting the “best interests of the
University.”
reappointing
mandate.
The
regulation
department
allows
chairs]
may
that
“the
vary”
practice
without
any
[of
other
This regulation focuses on the maximum time a faculty
member should serve as department chair, but is completely silent
on the issue of early removal or resignation.
persuaded
that
this
Governing
Regulation
The Court is not
created
a
protected
property or liberty interest in the position of department chair
that could not be changed without prior due process.
10
Plaintiff also argues KRS 164.225 mandates he could not be
removed from his position except by vote of the University’s Board
of Trustees [DE 9, Ver. Am. and Sub. Compl., ¶¶ 34 and 45].
KRS
164.225 states:
Anything in any statutes of the Commonwealth
to the contrary notwithstanding, the power
over
and
control
of
appointments,
qualifications, salaries, and compensation
payable
out
of
the
State
Treasury
or
otherwise, promotions and official relations
of all employees of the University of
Kentucky, as provided in KRS 164.220, and,
subject to any restrictions imposed by general
law, the retirement ages and benefits of such
employees shall be under the exclusive
jurisdiction of the board of trustees of the
University of Kentucky, which shall be an
independent agency and instrumentality of the
Commonwealth. No relative of a board of
trustee member shall be employed by the
university.
This statute does not require the Board of Trustees to vote
on every appointment or removal across the entire University, nor
does it prohibit the Board from delegating its powers and duties
to others in the University.
Regulation,
Part
II(A)(1)
In fact, the University’s Governing
specifically
permits
the
Trustees to delegate
certain responsibilities to the President, the
University Senate, the Staff Senate, the
Student Government Association, the Graduate
Faculty, and the faculties of educational
units in order to provide for the responsible
and efficient administration of the University
and the accomplishment of its goals.
11
Board
of
The Court was unable to find any Kentucky case law remotely
suggesting that a state university’s Board of Trustees is solely
charged
with
appointing
or
removing
a
department
chair,
and
Plaintiff has not cited to any such authority.
The
Sixth
Circuit
has
held
“that
tenured
university
professors [do] not have a constitutionally protected property
interest in administrative posts.”
Stringfield v. Graham, 212 F.
App'x 530, 538 (6th Cir. 2007).
In Stringfield, the plaintiff
(Yvonne
professor)
Stringfield,
individually
established
named
a
tenured
defendant
procedural
due
(“Graham”)
process
alleged
“violated
right
to
that
her
notice
the
clearly
and
an
opportunity to be heard before she was removed from her position
as director of the baccalaureate nursing program, in which she
says she had a property interest.”
plaintiff
in
this
case,
Id. at 536.
Stringfield
argued
Similar to the
“that
she
held
a
property interest in the directorship through her status as a
tenured faculty member.”
538 (6th Cir. 2007).
Stringfield v. Graham, 212 F. App'x 530,
The Sixth Circuit disagreed, but ultimately
remanded the case for additional fact-finding because, unlike Dr.
Crosby,
Stringfield
had
an
“ambiguously
worded”
“notice
of
appointment and agreement of employment” which intermingled her
faculty position and her administrative directorship appointments.
Id.
The plaintiff in this case does not allege any such agreement,
other than his very tenuous “de facto contract” argument addressed
12
below.
No discovery or further fact-finding is necessary in this
case; reading the facts in the light most favorable to Plaintiff,
it is clear there is no set of facts upon which he can rest his
claims
that
he
had
a
protected
property
interest
in
his
administrative appointment to department chair. 2
The Court is similarly not persuaded that the University
Senate Rules confer upon Plaintiff a protected property interest
in his position as department chair.
The University Senate Rules,
Section VII, upon which Plaintiff partly bases his claims, is
entitled, “Code of Faculty Responsibilities.”
forth
general
“[r]espect
the
responsibilities
rights
of
all
of
faculty
campus
academic and administrative activities.”
Compl., ¶¶ 58-60, Ex. 1.]
This section sets
members,
members
to
such
pursue
as
their
[DE 9, Ver. Am. and Sub.
This section refers to faculty members,
in their position as faculty members, and does not refer to a
situation in which complaints may be brought against a faculty
members in their capacity as administrative personnel.
2
The letter
The Court notes that Plaintiff claims he was paid an additional $5,000 per
year for his service as a department chair, that he lost this additional
income when he was removed from the position, and seems to argue that this
comprises part of his protected property interest. The University, however,
vehemently disputes this claim, and insists Plaintiff’s pay was not reduced
even though he was removed from the position. The Court finds it odd that
this fact is so hotly contested between the parties, as the amount Plaintiff
was paid after his removal as department chair should be easily verified by
both parties. The Court holds, however, that this dispute is immaterial to
the outcome of the case, because and for the reasons stated herein, Defendant
did not have a protected property interest in the administrative position nor
any additional pay that may have been associated with it.
13
finding Dr. Crosby in violation of the University’s Governing
Regulation Ethical Principles states:
Based on a thorough investigation, the
Office of Institutional Equity and Equal
Opportunity finds Richard A. Crosby’s behavior
as Chair of the Department of Health Behavior
in violation of the University’s Governing
Regulation Ethical Principles:
•
•
•
•
Mutual respect and human dignity
Personal
and
institutional
responsibility
and
accountability
Exhibits
personal
integrity,
honesty, and responsibility in
all actions
Provides an environment of mutual
respect,
impartiality,
and
collaboration
As a result, the Office of Institutional
Equity
and
Equal
Opportunity
recommends
removal of Dr. Crosby from the position of
Chair of the Department of Health Behavior.
[DE 9, Ver. Am. and Sub. Compl., Ex. 4](emphasis added).
The
Court
recognizes
some
of
the
accusations
against
Plaintiff were vague and could have been interpreted as a complaint
about Plaintiff in his capacity as a tenured faculty member; for
example,
the
complaints
“Inconsistent.”
that
he
is
“Very
condescending”
and
The OIEEO’s letter clearly states, however, that
it investigated and had findings related only to Plaintiff’s
“behavior as Chair of the Department of Health Behavior.”
The
University Senate Rules Section VII do not apply to actions against
14
a faculty member in his administrative capacity; in fact, they do
not even mention it. 3
Finally, Plaintiff argues he is entitled to relief pursuant
to proposed Governing Regulation XX [DE 9, Ver. Am. and Sub.
Compl., ¶¶ 58-60, Ex. 2].
Plaintiff cannot rely on this document
because it is clearly marked “draft” and has no “enacted date.”
The University investigated the complaints against Plaintiff based
on the Governing Regulations in effect at that time.
The Court’s
understanding is that Governing Regulation XX had not been adopted
by that time, and, in fact, has never been adopted by the Board of
Trustees.
For the reasons stated above and in sections B and C, below,
the Court will grant Defendants’ motion to dismiss Count I of the
Verified Amended Complaint.
B. Defendants are entitled to qualified immunity
It appears Plaintiff crafted his Amended Complaint to exclude
the University and Defendants in the official capacities in an
effort to circumvent sovereign immunity and hold Defendants liable
individually.
There are no facts, however, to support holding
3
In contrast, the Court notes the Governing Regulations differentiate the
rights and responsibilities a faculty member may be subject to in his
capacity as a faculty member versus in his role as administrative personnel.
For example, Part X(B)(1)(f)-(h) requires tenured faculty members to give
several months’ notice of his or her resignation; however, “[a]dministrative
personnel who hold academic rank are subject to the foregoing regulations in
their capacity as faculty members.” (emphasis added)
15
Defendants liable in their individual capacities. “The doctrine of
qualified
immunity
shields
government
officials
performing
discretionary functions from civil damages liability as long as
their actions are reasonable in light of the legal rules that were
clearly established at the time of their conduct.”
Flatford v.
City of Monroe, 17 F.3d 162, 166 (6th Cir. 1994).
As discussed
above, Sixth Circuit case law was well-established in June and
July 2015 that Plaintiff had no protected property interest in his
administrative appointment to the position of department chair.
Accordingly, this Court “conclude[s] that reasonably competent
university administrators could have decided that [Plaintiff] was
removable, and thus had no property interest in his [position as
Chairman].”
Garvie v. Jackson, 845 F.2d 647, 652 (6th Cir.
1988)(holding that under Tennessee law a university department
head has no legitimate claim of entitlement to his position; thus,
provost and dean were entitled to qualified immunity on the claim
that
the
plaintiff’s
process.).
entitled
removal
without
a
hearing
violated
due
For these reasons, the Court finds the defendants
to
qualified
immunity
on
Plaintiff’s
claims
of
deprivation of a property interest without due process.
C. Plaintiff has not alleged sufficient facts which would
constitute violation of a protected liberty interest
Plaintiff claims he suffered a deprivation of his liberty
interest in his good name and reputation because his removal as
16
department chair was stigmatizing, has limited his opportunities
at other institutions, and because Defendant Sanderson held a
meeting during which he “publicly informed” the “College of Public
Health faculty and others” of the accusations against Plaintiff,
and stated if Plaintiff took any retaliatory actions, those should
be reported to Defendant Sanderson.
The
Sixth
Circuit
“has
identified
five
factors
that
a
plaintiff must show in order to establish that he was deprived of
a liberty interest and entitled to a name-clearing hearing.” Quinn
v. Shirey, 293 F.3d 315, 320 (6th Cir. 2002).
Citing Brown v.
City of Niota, 214 F.3d 718, 722–23 (6th Cir.2000), the Court set
forth the factors:
First, the stigmatizing statements must be
made in conjunction with the plaintiff's
termination from employment.... Second, a
plaintiff is not deprived of his liberty
interest when the employer has alleged merely
improper
or
inadequate
performance,
incompetence,
neglect
of
duty
or
malfeasance....
Third,
the
stigmatizing
statements or charges must be made public.
Fourth, the plaintiff must claim that the
charges made against him were false. Lastly,
the public dissemination must have been
voluntary.
Quinn v. Shirey, 293 F.3d 315, 320 (6th Cir. 2002) (citing Brown
v. City of Niota, 214 F.3d 718, 722–23 (6th Cir.2000)(omissions in
original)).
The Sixth Circuit held that “once a plaintiff has
established the existence of all five elements, he is entitled to
a name-clearing hearing if he requests one. It is the denial of
17
the name-clearing hearing that causes the deprivation of the
liberty interest without due process.”
Id. (internal citations
omitted).
Plaintiff
does
not
allege
he
was
terminated
from
his
employment, thus, he does not meet the first factor of the test.
Even if the removal of Plaintiff as department chair could be
construed as termination from employment—which it clearly is not—
Plaintiff does not allege he requested and was denied a nameclearing hearing.
The Sixth Circuit has “consistently held that
a failure of the plaintiff to request a name-clearing hearing bars
due
process
claims
for
violations
of
a
liberty
interest.”
Stringfield v. Graham, 212 F. App'x 530, 540 (6th Cir. 2007).
“[A]
letter sent by the plaintiff's counsel to defendants alleging that
they had violated plaintiff's due process rights did not amount to
a request for a name-clearing hearing where it was “insufficient
to alert [the defendants] that [the plaintiff] was complaining of
a lack of due process in connection with a liberty interest as
opposed to a lack of due process in connection with his claimed
property interest.”
320
(6th
Id. (quoting Quinn v. Shirey, 293 F.3d 315,
Cir.2002)).
Although
Plaintiff’s
demand
for
an
evidentiary hearing mentions “libel and slander,” he repeatedly
mentions deprivation of property without due process and never
once mentions deprivation of any liberty interest or requests a
18
name-clearing hearing. [DE 9, Ver. Am. and Sub. Compl., Ex. 8 and
9.]
For these reasons, the Court holds defendant has not alleged
sufficient facts to withstand Defendants’ motion to dismiss his
claim for deprivation of his liberty interest.
D. There is no cognizable cause of action for damages pursuant
to the due process clause of the Kentucky Constitution
The Courts of the Eastern District of Kentucky have previously
held that there is no authority known to it pursuant to which a
plaintiff may recover money damages from defendants named in their
individual
capacities
Constitution.
2002).
for
a
violation
of
the
Kentucky
Clark v. Kentucky, 229 F.Supp.2nd 718, 727 (E.D.Ky.
There, the plaintiff also sought damages against the
defendants in their official capacities and the Commonwealth of
Kentucky.
The Court noted “plaintiff does not cite any authority
for the proposition that he may seek money damages from the
Commonwealth
of
Kentucky
for
a
violation
of
his
rights
as
established by the Kentucky Constitution, and the Court can find
none[]”
and
likewise,
“the
constitutional
claims
against
the
individual defendants in their official capacities must also be
dismissed, as ‘[t]he absolute immunity from suit afforded to the
state also extends to public officials sued in their representative
(official) capacities, when the state is the real party against
which relief in such cases is sought.’”
19
Id., citing Yanero v.
Daviz, 65 S.W.3rd 510, 518 (Ky. 2001).
The Kentucky Supreme Court
has also held that the statute which authorizes a private right of
action for damages for any person injured by the violation of a
statute, KRS 446.070, does not extend to claimed violations of the
Kentucky Constitution. St. Luke Hosp., Inc. v. Straub, 354 S.W.3d
529 (Ky. 2011).
Accordingly, the Court finds that Kentucky law does not
recognize a private cause of action for damages for violations of
the Kentucky Constitution. The Court will grant Defendants’ motion
to dismiss Count II of Plaintiff’s Amended Complaint.
E. There was no contract, de facto or otherwise, between the
parties regarding the position of Department Chair
Plaintiff has not alleged the individually named defendants
to this lawsuit were parties to any contract, actual or implied,
with Dr. Crosby.
Plaintiff’s Amended Complaint states there was
a “de facto contract by and between the University of Kentucky and
Plaintiff Crosby.”
[DE 9, Ver. Am. and Sub. Compl., ¶ 79.]
Plaintiff does not allege the individually named defendants were
a party to this alleged “de facto contract.”
Thus, on the face of
the Complaint, the breach of contract claim fails. Plaintiff makes
the bizarre claim that
[i]t is only the Defendants acting under color
of State law. None of them were in the Federal
Convention of 1787, or “parties” to the
Federal Constitution, nor were they members of
the 1868 Reconstruction Congress that drafted
20
the
Fourteenth
Amendment,
nor
are
the
“parties” to it, yet they, under color of
State law, enforce those provisions, or as in
this case, refuse to do so.
[Pl.’s Mem., p. 54, DE 16].
The Court is unable to follow Plaintiff’s analogy and finds
it wholly unpersuasive.
The Court would apply plaintiff’s own
words to the above argument: “such a preposterous position cannot
be countenanced by this Court, or any court.” Id.
Additionally,
Plaintiff’s
Complaint
does
not
allege
sufficient facts for the Court to draw the reasonable inference on
a motion to dismiss that a contract, de facto or otherwise, existed
with the University of Kentucky.
Plaintiff acknowledges, by
pleading breach of a de facto contract, that there was no written
contract between the University and himself.
Regulation,
Part
VII,
KRS
164.225,
and
He claims Governing
the
un-enacted
draft
Governing Regulation XX somehow create a de facto contract for
employment as a department chair.
Plaintiff does not cite any law
to support this proposition and the Court is not aware of any.
Accordingly,
Defendants’
motion
to
dismiss
Plaintiff’s
contract claim will be granted.
V.
Conclusion
For the reasons stated above, and the Court being otherwise
sufficiently advised, IT IS ORDERED that:
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(1)
Plaintiff’s Motion for Temporary Injunction [DE 1] is
DENIED AS MOOT;
(2)
Defendants’ Motion to Dismiss [DE 4] is DENIED AS MOOT;
(3)
Defendants’ Motion to Dismiss [DE 12] is GRANTED;
(4)
Plaintiff’s
Motion
for
Leave
to
File
Oversized
Memorandum [DE 15] is GRANTED; and
(5)
Plaintiff’s Motion for Hearing [DE 17] is DENIED AS MOOT.
This the 30th day of September, 2016.
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