LAWRENCE L. PIERSOL, District Judge.
Pending before the Court is Defendants' motion for summary judgment, Docket 84. Plaintiff Christopher Keating filed two responses in opposition to the motion, and Defendants have submitted a reply brief. The summary judgment motion will be granted in part and denied in part for the reasons set forth below.
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Fed. R.Civ.P. 56(c)(1); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Once the moving party has met its burden, the non-moving party may not rest on the allegations of its pleadings but must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(c)(1); Anderson, 477 U.S. at 257, 106 S.Ct. 2505; City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273-74 (8th Cir.1988).
In the present case, Keating's employment contract with the University of South Dakota was not renewed based on his alleged lack of civility pursuant to the COHE agreement. Keating asserts claims under 42 U.S.C. § 1983, contending that Defendants' actions deprived him of his right to engage in free speech which is protected under the First Amendment to the United States Constitution, and that the civility clause of the COHE agreement is unconstitutionally vague or overbroad.
Defendants argue that the Eleventh Amendment affords them immunity from suit in federal court, and they also assert that they are entitled to judgment on the merits of Keating's claims even if they are not entitled to immunity. The background and relevant facts which are recited in the court's previous Memorandum Opinions, Dockets 43, 53 and 73, are not in dispute and will not be repeated here. For ease of reference, the email that led to the nonrenewal of Keating's contract will be set forth below, along with the civility clause of the COHE agreement.
On April 24, 2004, Keating sent an email to Dr. Heaton. Keating describes the email as a private email between Dr. Heaton, Dr. Keller and himself, which was shared with no one else, and was in direct response to an email sent by Dr. Heaton to Keating. Docket 1 at p. 3. Keating's email states, in part:
Docket 1 at p. 2-3,
Keating's language was found to be in violation of the civility clause in the employment contract between the University of South Dakota and its faculty, as represented by the Council of Higher Education (COHE). Appendix G of the COHE Contract is entitled "Statement Concerning Faculty Expectations." Docket 86 at ¶ 2. The civility provision is contained within that Appendix and is entitled "Civility in working with colleagues, staff members, students and others." Id. at ¶ 3. It provides:
Docket 87-1 at p. 2.
The Eleventh Amendment of the United States Constitution provides that:
College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999).
The University of South Dakota and the Board of Regents argue that they are arms of the state and they have not waived their Eleventh Amendment immunity from suit in federal court. In support of that argument, Defendants assert that the University of South Dakota is a state-funded institution of higher learning. See SDCL §§ 13-51-4 (duty of Board of Regents to make recommendations to state legislature regarding support of institutions of higher education); 13-55E-1 (term "institution of higher education" includes any state-supported university). The Board of Regents governs the University of South Dakota. See SDCL § 13-49-1 (control of state institutions of higher education vested in Board of Regents). Members of the Board of Regents are appointed by the Governor with the consent of the Senate. See id. An educational fund has been established in the state treasury to support the institutions of higher education under the jurisdiction of the Board of Regents, see SDCL § 13-51-2, and the state treasury is to receive all funds arising from the educational institutions governed by the Board of Regents, see SDCL § 13-53-15.
Keating counters that the Board of Regents is a political entity separate from the state because, among other things, it can acquire property, see SDCL § 13-51A-2, and issue bonds, see SDCL § 13-51A-13. Keating contends that there are no state funds at risk from an adverse decision in this case. According to Keating, the University of South Dakota, by extension, also does not qualify for immunity.
The Eighth Circuit and the South Dakota Supreme Court have held that the Board of Regents is a political subdivision of the state and, as such, is entitled to sovereign immunity, meaning that it cannot be sued under § 1983. See Prostrollo v. Univ. of S.D., 507 F.2d 775, 777 n. 1 (8th Cir.1974) ("it is fundamental that the University of South Dakota and the corporate body constituting the Board of Regents, both political subdivisions of the state, may not be sued under the Civil Rights Act since neither entity constitutes a `person' within the meaning of § 1983") (citations omitted); Aase v. State, S.D. Bd. of Regents, 400 N.W.2d 269, 271 (S.D.1987) (holding "that the Board of Regents is not a person within the meaning of 42 U.S.C. § 1983 ... and may not be sued under that section") (citations omitted); Kringen
In addition, a case decided in the District of South Dakota found that the South Dakota Board of Regents is an arm of the state and thus is immune from suit under the Eleventh Amendment. See South Dakota Bd. of Regents v. Hoops, 624 F.Supp. 1179 (D.S.D.1986) (analyzing the Board's relationship with the state, including the Board's lack of financial autonomy). The Hoops case and the statutes cited above show that funds to satisfy a judgment against the Board of Regents in this case would come from the state's coffers, and Keating has offered no contrary argument. The court concludes that the Board of Regents is protected by the Eleventh Amendment from suits in federal court.
The Board of Regents controls the University of South Dakota and, thus, the University is also entitled to immunity. See Prostrollo, 507 F.2d at 777 n. 1 (reasoning that the University of South Dakota, which the Board of Regents controls, cannot be sued under § 1983).
For these reasons, the Board of Regents and the University of South Dakota, as arms of the state, are protected under the Eleventh Amendment from Keating's First Amendment free speech claim seeking monetary damages, as well as his claim for an injunction against enforcement of the civility clause. See Monroe v. Arkansas State University, 495 F.3d 591, 594 (8th Cir.2007) (states and state agencies are entitled to Eleventh Amendment immunity from suits for any kind of relief, including prospective injunctive relief and monetary damages). Defendants' motion for summary judgment must be granted as to the Board of Regents and the University of South Dakota.
Defendants argue that the individually-named defendants, Abbott, Engstrom, Dahlin, Moen, Heaton, Keller, and Governor Rounds, are entitled to Eleventh Amendment immunity. Officials of a state entity entitled to Eleventh Amendment immunity are also entitled to Eleventh Amendment immunity from claims for monetary damages against them in their official capacities. Will v. Mich., Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). This is because a suit against a government official in his or her official capacity is "another way of pleading an action against an entity of which an officer is an agent." Monell v. Dep't of Social Services, 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). "[T]he real party in interest in an official-capacity suit is the governmental entity and not the named official...." Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). On the other hand, the Eleventh Amendment does not prevent a plaintiff from seeking damages from a state official if he sues the official in his or her personal capacity. Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir.1995). If the complaint is silent as to the capacity in which the individual is sued, an official capacity suit is assumed. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir.1999). As the Eighth Circuit has explained, public servants are entitled to proper notice that they may be exposed to civil liability and damages. Id.
There is no dispute that Keating's complaint is silent as to the capacity in which the individually-named defendants are sued. In his response to Defendants'
Docket 89, p. 7. A statement made in response to a motion is not sufficient notice of a personal capacity lawsuit. See Egerdahl, 72 F.3d at 620. Furthermore, allowing Keating to amend his complaint to assert a personal capacity claim at this late stage of the litigation would be very prejudicial to the defendants. For these reasons, defendants Abbott, Engstrom, Dahlin, Moen, Heaton, Keller, and Governor Rounds are entitled to Eleventh Amendment immunity from Keating's claims for monetary damages.
Even if Keating were allowed to amend his complaint to sue the individual defendants in their personal capacities, the defendants would be entitled to qualified immunity because Keating was not speaking on a matter of public concern.
In a § 1983 personal-capacity claim, the plaintiff seeks to hold a government official personally liable for actions taken under the color of law. Clay v. Conlee, 815 F.2d 1164, 1169 (8th Cir.1987). A government official sued in his personal capacity may raise the defense of qualified immunity. Under the doctrine of qualified immunity, state actors are protected from civil liability when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).
The Eighth Circuit explained that the qualified immunity inquiry is a two-step process: (1) determining whether "plaintiffs have asserted a violation of a constitutional or statutory right"; and (2) determining whether "that constitutional right was clearly established at the time that the plaintiffs were discharged." Sexton v. Martin, 210 F.3d 905, 909 (8th Cir. 2000). A right is clearly established if "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id. (internal quotation marks and citations omitted). With his claim that Defendants violated his First Amendment right to freedom of speech, Keating has asserted a violation of a constitutional right.
The second step in the qualified immunity inquiry is to determine whether Keating's free speech right was clearly established at the time his contract was not renewed. See Sexton, 210 F.3d at 910. To determine if Keating's free speech right was clearly established, the court must determine whether his speech touched on matters of public concern. See id.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context" of the speech, and the speech must relate to some "matter of political, social or other concern to the community." Connick v. Myers, 461 U.S. 138, 146, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Eighth Circuit has explained its interpretation of Connick's "public concern" requirement:
Cox v. Dardanelle Public School Dist., 790 F.2d 668, 672 (8th Cir.1986) (footnote and citations omitted). "The public concern test functions both to prevent every employee grievance from becoming a constitutional case, and to protect a public employee's right as a citizen to speak on issues of concern to the community." Tindle v. Caudell, 56 F.3d 966, 971 (8th Cir. 1995) (citing Connick, 461 U.S. at 146-47, 149, 103 S.Ct. 1684). Statements that are purely job-related and statements dealing with personnel matters generally are not protected speech. Buazard v. Meridith, 172 F.3d 546, 548 (8th Cir.1999); Shands v. City of Kennett, 993 F.2d 1337, 1343 (8th Cir.1993). "When focusing on the employee's role, we consider whether the employee attempted to communicate the speech to the public at large and the employee's motivation in speaking." Bausworth v. Hazelwood School Dist., 986 F.2d 1197, 1198 (8th Cir.1993).
In ruling on the motion for a preliminary injunction, this court held that Keating's speech does not address a matter of public concern. Docket 43 at p. 10-11. Keating has not presented any additional evidence or argument to change that determination. His allegations in the complaint that the speech was in a private email between Drs. Heaton and Keller and himself, that it was shared with no one else, and that it was in direct response to an email sent by Dr. Heaton, all support the court's conclusion that the speech is private. See Buazard, 172 F.3d at 549 (internal nature of the plaintiff's statements and his role as employee in making the statements indicate speech was not a matter of public concern). In addition, the content of the message conveyed by Keating's speech is one of frustration relating to an individual personnel dispute or grievance, and the speech is directed at a private effort rather than any effort to educate the public about the functioning of the University. Simply put, Keating is complaining of a poor working relationship with his superiors and his speech does not relate to a matter of political, social, or other concern to the community. Accordingly, even if Keating could sue the individually-named defendants in their personal capacities, they are entitled to qualified immunity, which protects them from civil liability and damages for Keating's First Amendment free speech claim, because Keating's constitutional right to free speech was not clearly established.
Defendants acknowledge that Keating can seek prospective injunctive relief to abate a continuing violation of federal law by a state official acting in his official capacity. Therefore, although qualified immunity bars Keating from seeking damages against the individual defendants, Keating can seek an injunction prohibiting them from enforcing the civility clause if it is found to be overbroad or vague. See, e.g., Treleven v. University of Minnesota, 73 F.3d 816, 819 (8th Cir.1996) (state's Eleventh Amendment immunity does not shield official from prospective injunctive relief); Grantham v. Trickey, 21 F.3d 289, 295 (8th Cir.1994) (qualified immunity does not shield officials from equitable relief). Defendants argue that they are entitled to summary judgment on the merits of Keating's overbreadth and vagueness claims.
Keating claims the civility clause is unconstitutionally overbroad because it bans and punishes a broad range of speech, including that which is protected by the First Amendment. Defendants respond that the civility clause has minimal, if any, impact on protected speech because it does not prevent professors from commenting on any particular matter, including matters of public interest as citizens. Rather, it only requires professors to be respectful while conducting themselves as employees.
Overbroad restrictions on speech are those that sweep within their scope a "substantial" amount of constitutionally protected speech "judged in relation to the statute's plainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (a law may be invalidated as overbroad if "a substantial number of its applications are unconstitutional") (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n. 6, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)); see also Excalibur Grp., Inc. v. City of Minneapolis, 116 F.3d 1216, 1224 (8th Cir.1997) ("To be facially invalidated under this doctrine, the overbreadth of an ordinance affecting both conduct and pure speech must be both `real' and `substantial' in relation to its `plainly legitimate sweep.'") (quoting New York v. Ferber, 458 U.S. 747, 769-70, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982)). The overbreadth doctrine is "strong medicine" to be used "sparingly." Broadrick v. Oklahoma, 413 U.S. 601, 613, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
Much of the language in the civility clause seeks to advise faculty members of the University's ideals, but some language could chill speech that is protected by the First Amendment. Requiring faculty members to discharge their duties "civilly," to treat one another "civilly" and with "respect," and prohibiting conduct that is "demeaning" to members of the community, could encompass protected speech. Mandating that faculty members express disagreement "in ways that will preserve and strengthen the willingness to cooperate and to give or to accept instruction, guidance or assistance" could hinder protected speech. For example, if the university determined that words used by a professor to criticize the administration on matters of public concern were uncivil, disrespectful, demeaning or uncooperative, the professor might be punished by university officials for engaging in speech that is constitutionally protected.
Because Keating has failed to demonstrate that the civility clause's application to protected speech is "substantial" relative to its constitutional applications, the court will decline to use the "strong medicine" of overbreadth to invalidate the clause, and Defendants are entitled to summary judgment on Keating's overbreadth claim.
Keating argues that prohibiting speech considered to be "uncivil" without a definition of what constitutes "uncivil" renders the civility clause unconstitutionally vague. According to Keating, the term "uncivil" fails to give fair notice as to the behavior which is prohibited and fails to provide standards for officials enforcing the policy. Keating further asserts that a person of common intelligence reading the policy would not be put on notice of the prohibited conduct.
Defendants respond that the civility clause is not unconstitutionally vague even though it does not define the term "uncivil." According to Defendants, the civility clause is part of an agreement that establishes expectations for professors, as employees, to conduct themselves civilly, in a manner that is not demeaning. Defendants say, "The parameters of acceptable behavior are reasonably ascertainable by reviewing the clause as a whole in the context of it being one part of the employment agreement." Docket 88 at p. 19.
The Eighth Circuit has held that, "[t]o `survive a vagueness challenge, a statute must give the person of ordinary intelligence a reasonable opportunity to know what is prohibited and provide explicit standards for those who apply the statute.'" United States v. Dinwiddie, 76 F.3d 913, 924 (8th Cir.1996) (quoting Video Software Dealers Ass'n v. Webster, 968 F.2d 684, 689 (8th Cir.1992)).
The Eighth Circuit further explained:
Stephenson v. Davenport Community School District, 110 F.3d 1303, 1308 (8th Cir.1997).
The rule in question fails in both respects. It is an aspirational statement but it forbids acts in terms so vague that persons must necessarily guess at the meaning of the rule and differ as to its application. "Civilly" is not defined. What may
Freedom of thought and speech are the hallmarks of a University. Where there are restrictions upon free speech in such an institution, there must be some specific guidance to both the speakers and the rule enforcers on the limitations on free speech. This civility rale is unconstitutionally vague for a university.
