Jackson v. University of Kentucky et al
Filing
11
MEMORANDUM OPINION & ORDER: (1) Pla's Motion for Injunctive Relief is DENIED WITHOUT PREJUDICE. (2) All claims against the University of Kentucky shall be DISMISSED WITH PREJUDICE. (3) The claim against Dft Victor Hazard, in his official capacit y as Interim Associate Provost for Student and Academic Life at the University of Kentucky, under the Kentucky Constitution is DISMISSED WITH PREJUDICE. (4) The claims against Dft Victor Hazard, in his official capacity as Interim Associate Provost for Student and Academic Life at the University of Kentucky, under the United States Constitution shall be DISMISSED WITHOUT PREJUDICE. Signed by Judge Joseph M. Hood on July 20, 2016.(AWD) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
REX JACKSON,
)
)
Plaintiff,
)
)
vs.
)
)
UNIVERSITY OF KENTUCKY, et al., )
)
Defendants.
)
**
**
**
Civil No. 16-cv-257-JMH
MEMORANDUM OPINION
& ORDER
**
**
In April 2016, Plaintiff Rex Jackson was arrested on the
campus of the University of Kentucky, where he was a student, for
alleged drug-related offenses arising out of activity which took
place in the student housing where he lived.
Plaintiff was
notified that the University would commence student disciplinary
proceedings for a violation of its Student Code of Conduct.
Jackson was then indicted on three counts by the Fayette County
Grand Jury on June 14, 2016.1
On July 8, 2016, Plaintiff filed a
civil Complaint in the Fayette Circuit Court against Defendants
1
The Court takes judicial notice of Fayette Circuit Court Indictment No.
16CR527, in which the Grand Jury charged Rex Jackson with one count of
trafficking in marijuana (eight or more ounces but less than five pounds) in
violation of KRS 218A.1421(3)(b), a Class D felony; one count of possession of
a controlled substance (cocaine), first degree, in violation of KRS 218A.1415,
a Class D felony; and one count of possession of a fictitious operators license
in violation of KRS 186.610(1), a Class B misdemeanor. See Fed. R. Evid. 201.
That matter remains pending at this time.
University
of
Kentucky
and
Christinie
Natal-Martinez,
in
her
official capacity as Student Responsibility Coordinator, seeking
to stay the student disciplinary proceedings pending the final
adjudication
of
the
state
criminal
charges
against
him.2
Defendants timely removed this action to this Court from the
Fayette Circuit Court pursuant to 28 U.S.C. §§ 1331, 1441(a) and
(c), and 1446, on the grounds that the Court could have exercised
original jurisdiction over Plaintiff’s claim of a violation of his
federal constitutional rights and, thus, this Court may exercise
jurisdiction over it now upon removal.
In his Complaint, Plaintiff avers that requiring him to
participate in the student disciplinary process before the final
adjudication of the state criminal charges against him would
violate (1) the Fifth Amendment to the United States Constitution
because, if he elects not to testify in the student disciplinary
hearing in order to preserve his right not to self-incriminate,
his protected property interest in a continued education at the
University of Kentucky may be taken without due process of law and
(2) Section 2 of the Kentucky Constitution because the decision to
proceed against Plaintiff is arbitrary and capricious.
[See DE 1-
1, at 4-5, Page ID#: 8-9.]
2
The parties have filed and the Court has signed an agreed order substituting
Victor Hazard, in his official capacity as Interim Associate Provost for Student
and Academic Life, University of Kentucky, as the proper individual defendant
in this action.
2
Today, the Court considers Plaintiff’s Motion for Injunctive
Relief, asking the Court for a preliminary order staying the
student disciplinary proceedings until the state criminal matter
is finally resolved.
The matter is also before the Court because
it has required Plaintiff to show cause why it should not abstain
from exercising jurisdiction in this matter in light of Younger.
The Court has had the benefit of the parties’ pleadings on these
matters [DE 1-1, 7, and 8], as well as the arguments of the parties
at a hearing on July 19, 2016.
In his Response, Jackson agrees
that abstention is appropriate, but asks the Court to remand the
action to the Fayette Circuit Court.
argue
that
dismissal
without
In its Response, Defendants
prejudice
is
the
procedural step where Younger abstention applies.
appropriate
However, the
time for Defendants to file an Answer or other pleading responsive
to the Complaint has not yet expired, see Fed. R. Civ. P. 81(c)(2),
and they have advised the Court that they intend to seek dismissal
of the action against the University of Kentucky on sovereign
immunity grounds under the Eleventh Amendment to the United States
Constitution.
Accordingly, the Court has also considered whether,
absent a waiver of immunity, this matter may proceed against the
University of Kentucky.
As explained below, all claims against the University of
Kentucky and the Kentucky constitutional claim against Defendant
Hazard must be dismissed with prejudice in light of the sovereign
3
immunity of the state under the Eleventh Amendment and governmental
immunity under Kentucky law, and the Court will abstain from
hearing the federal constitutional claim against Defendant Victor
Hazard in light of Younger v. Harris, 401 U.S. 37 (1971).
The
federal constitutional claim against Hazard will be dismissed
without prejudice.
I.
The Court first considers whether sovereign immunity bars the
claims
against
Defendants
as
the
University
of
Kentucky
has
indicated in its Response that it does not intend to waive its
sovereign immunity. “The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of
another State, or by Citizens or subjects of any foreign State.”
U.S. Const. amend. XI. In addition to the states themselves, the
Eleventh Amendment immunity can also extend to departments and
agencies
of
states,
as
well
as
“state
instrumentalities.”
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984);
Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). In this
case,
the
University
of
Kentucky
is
clearly
an
arm
or
instrumentality of the State and, thus, is entitled to Eleventh
Amendment immunity on Jackson’s claims. See Hutsell v. Sayre, 5
F.3d 996, 1000 (6th Cir. 1993).
Similarly, with respect to
Plaintiff’s claim under Section 2 of the Kentucky Constitution,
4
the University of Kentucky is a state agency that enjoys the
benefits and protection of governmental immunity except where it
has been explicitly waived by the legislature, as does Hazard in
his official capacity.
Furtula v. University of Kentucky, 438
S.W.3d 303, 305 n.1 (Ky. 2014) (citing Comair, Inc. v. LexingtonFayette Urban Cnty Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009);
Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001)) (explaining that,
“[s]ince the University of Kentucky is a state agency, and not the
state itself, they can only have governmental immunity, which while
related to and flowing from sovereign immunity, is nevertheless a
slightly different concept” and that, “to the extent that the
agency is performing a governmental function, as a state university
does,
its
governmental
sovereign immunity”).
immunity
is
functionally
the
same
as
In the absence of a specific waiver, both
the University of Kentucky and Defendant Hazard, in his official
capacity, are immune from suit under Section 2 of the Kentucky
Constitution.
Kentucky Constitution, § 231; see, e.g, Clevinger
v. Bd. Of Educ. of Pike Cnty., 789 S.W.3d 5 (Ky. 1990) (dismissing
claims brought under Section 2).
Ex parte Young, 209 U.S. 123 (1908), however, provides an
exception to Eleventh Amendment immunity for claims for injunctive
relief
against
individual
state
officials
in
their
official
capacities. The claim against Hazard in his official capacity
qualifies for this exception under Ex parte Young as Plaintiff
5
seeks prospective relief to end an alleged continuing violation of
federal law. See MacDonald v. Vill. of Northport, Mich. 164 F.3d
964, 970–72 (6th Cir. 1999).
University
of
Kentucky
Accordingly, the claims against the
will
be
dismissed
as
an
arm
or
instrumentality of the Commonwealth of Kentucky.
II.
The Court next considers whether it should abstain from
further proceedings against Defendant Hazard, in his official
capacity.
The undersigned recently addressed Younger abstention
in Doe v. Hazard, 5:15-cv-300-JMH, 2016 WL 208304, -- F. Supp. 3d
--- (E.D. Ky. Jan. 15, 2016).
Under this doctrine, which warrants
against federal court interference with pending state judicial
proceedings absent extraordinary circumstances, the Court should
abstain where “there are state proceedings that are (1) currently
pending; (2) involve an important state interest; and (3) will
provide the federal plaintiff with an adequate opportunity to raise
his or her constitutional claims.” Habich v. City of Dearborn, 331
F.3d 524, 530 (6th Cir. 2003); see also Middlesex County Ethics
Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982).
In Hazard,
the Court concluded that a quasi-criminal student disciplinary
proceeding at the University of Kentucky, such as the one at bar,
was a state proceeding for the purposes of Younger abstention.
The parties do not dispute this, nor do they dispute that it is
currently pending.
Further, the parties agree that the proceeding
6
involves an important state interest.
Undoubtedly, the University
has an immense and vital interest in eliminating transactions
involving illegal drugs from its campus and, more specifically,
from student housing on campus.
Next, at some level, the parties agree that Jackson is
afforded an adequate opportunity to present his constitutional
challenges in the University proceeding.
Defendants point out and
Plaintiff does not dispute that the University Student Code of
Conduct provides that no student is to be compelled to give
testimony in a student disciplinary proceeding and that the refusal
to do so will not be considered evidence of responsibility for an
alleged violation.
At the hearing on this matter, Plaintiff’s
counsel intimated that the real issue is not that Plaintiff might
be compelled to testify.
Rather, it is that he may find it to be
in his best interest with respect to the Fayette Circuit Court
criminal proceedings not to testify at his student disciplinary
proceeding so as to avoid incriminating himself with respect to
the state charges.
defend
himself
at
At the same time he feels that he might best
the
student
disciplinary
proceeding
by
testifying. Plaintiff Jackson faces a Hobson’s choice, to be sure,
and the choice of how to proceed is a difficult one.
7
That said,
absent a stay from the university officials, it may be one that he
has to make.3
Finally, the Court declines to remand this action to the state
court as Plaintiff requests.
This action was properly removed to
this Court, and this Court has jurisdiction to consider the matter
and make this determination.
respect
the
state
By abstaining, the Court seeks to
proceeding
by
permitting
disciplinary process to take its course.
the
student
The Court will dismiss
this action without prejudice as to Defendant Hazard, and Plaintiff
may then ask the appropriate authority at the University of
Kentucky to stay his proceeding.4
If appropriate, he may take an
appeal from that decision when the time is right.
Accordingly, IT IS ORDERED:
3
The court is unaware of what impact withdrawing from the University of Kentucky
might have on the student disciplinary proceedings or on collateral matters
like the release of transcripts to other secondary institutions and the like.
Nonetheless, the Court notes that the Student Code of Conduct defines “student”
as “any person who is admitted, registered, or enrolled in any University
program or course, either full-time or part-time, pursuing undergraduate,
graduate, or professional studies” and muses that there may be options available
to Plaintiff not mentioned by counsel during these proceedings. See University
of Kentucky Student Code of Conduct, Part I, Rules, Procedures, Rights and
Responsibilities,
Definitions,
¶
l,
http://www.uky.edu/StudentAffairs/Code/part1.html (last visited July 20, 2016).
The Court acknowledges that this and other options may be no more palatable
than the decision to testify or not testify in a disciplinary proceeding in
light of the consequences.
4
It appears to the Court that the decision on when to proceed is within the
discretion of the Dean of Students. See University of Kentucky Student Code of
Conduct, Part I, Rules, Procedures, Rights and Responsibilities, Article II, ¶
6 (“Proceedings under this Code may be carried out prior to, simultaneously
with, or following civil or criminal proceedings off campus at the discretion
of Dean of Students.”), http://www.uky.edu/StudentAffairs/Code/part1.html (last
visited July 20, 2016).
8
(1)
That Plaintiff’s Motion for Injunctive Relief is DENIED
WITHOUT PREJUDICE;
(2)
That, upon the Court’s own motion, all claims against
the University of Kentucky shall be DISMISSED WITH PREJUDICE;
(3)
That, upon the Court’s own motion, the claim against
Defendant Victor Hazard, in his official capacity as Interim
Associate Provost for Student and Academic Life at the University
of Kentucky, under the Kentucky Constitution is DISMISSED WITH
PREJUDICE.
(4)
That, upon the Court’s own motion, the claims against
Defendant Victor Hazard, in his official capacity as Interim
Associate Provost for Student and Academic Life at the University
of
Kentucky,
under
the
United
States
DISMISSED WITHOUT PREJUDICE.
This the 20th day of July, 2016.
9
Constitution
shall
be
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