author: FEIKENS, Chief Judge.

text:
    James M. PICOZZI, Plaintiff, v. Terrance SANDALOW, Individually and in his Official Capacity as Dean of the University of Michigan Law School; et al., Defendants.
    Civ. A. No. 84-CV-7406-AA.
    United States District Court, E.D. Michigan, S.D.
    Jan. 2, 1986.

      William M. Kunstler, Ronald L. Kuby, Kunstler & Mason, and Mark B. Gombiner, Gombiner & Avenia, New York City, for plaintiff.
    Theodore Sachs, Sachs, Nunn, Kates, Kadushin & O’Hare, Detroit, Mich., and Peter A. Davis, Davis & Fajen, Ann Arbor, Mich. (Roderick D. Daane, Gen. Counsel, University of Michigan, Ann Arbor, Mich.), for defendants.
   OPINION

FEIKENS, Chief Judge.

Plaintiff James M. Picozzi (“Picozzi”) brings this action against defendant Dean Terrance Sandalow (“Sandalow”) citing the Constitution of the United States and 42 U.S.C. § 1983, seeking both injunctive and monetary relief. Since an administrative hearing held pursuant to the parties’ agreement resolved Picozzi’s claim for injunctive relief, only his damage claim remains before me. Both Picozzi and Sandalow move for Summary Judgment. I have jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343.

1. FACTS

During his second year at the University of Michigan Law School, Picozzi leased room K-33 in the Lawyers Club, the law school student residence. At about 4:00 a.m. on March 8, 1983, fire broke out in his room. Picozzi alleges that he awoke and attempted to leave the room and that because flames blocked the doorway to the hall, he used the third floor window to exit the room. He says he attempted initially to stay on the windowsill, but eventually either jumped or fell to the ground. As a result, he sustained burns and a fractured vertebra. He was treated at the University of Michigan Hospital from March 8 to April 2, 1983; he then transferred to the University of Pittsburgh Hospital in order to be closer to his family. He remained hospitalized until sometime in May, 1983, and in a body cast until October, 1983.

By April, 1983, it appeared that Picozzi would be physically unable to return to school during the 1983 Winter Term. On April 1, 1983, Associate Dean Eklund informed Picozzi’s father that Picozzi had been disenrolled for the remainder of the 1983 Winter Term. See Complaint, Ex. J. Sandalow maintains, as recited in Dean Eklund’s letter, that Picozzi was disenrolled at the request of Picozzi’s father, in order to facilitate tuition and lease rebates. Although Picozzi denies that either he or his father ever requested disenrollment, it is clear that his father at least sought information regarding tuition adjustments for students absent from school for an extended period for medical reasons. See Complaint, Ex. K. I note that this factual dispute is not material to resolution of the case.

The fire aroused concern within the Law School community. In its March 16, 1983, edition, the Law School newspaper, Res Gestae, carried a front page story on the fire and its aftermath. The story included Sandalow’s statement expressing distress over the incident and urging that rumors be quelled. See Complaint, Ex. G. On April 4, 1983, Sandalow again addressed the Law School community in an effort to calm the understandable anxiety created by acts of violence, including the fire within the dormitory. See Complaint, Ex. I.

Both public statements alluded to an ongoing police investigation of the fire. That investigation led the Ann Arbor Police Department to conclude almost immediately that the fire had been deliberately set. See Complaint, Ex. A at 15, 17. The investigators also concluded that Picozzi himself had likely set the fire. See Complaint, Ex. A at 115-16. Nonetheless, the Washtenaw County Prosecutor’s Office declined to prosecute the case. See Complaint, Ex. A at 116, 118.

On May 13,1983, Sandalow wrote Picozzi informing him that he would not be allowed to re-enroll at the Law School unless he either took and passed a polygraph test conducted by the police department or prevailed at an administrative hearing. Sandalow noted that “the Law School and the University have an independent interest in determining the identity of the person responsible, especially because the continuing presence of that individual within the community would create a serious risk to its members.” Complaint, Ex. N. On June 29, 1983, Sandalow again wrote to Picozzi asking for a prompt reply in the interest of resolving the matter prior to the beginning of the 1983 Fall Term. See Complaint, Ex. 0.

Picozzi responded to Sandalow’s letters on July 18, 1983, stating that he was “not yet prepared to give a full response to [defendant’s] ultimatum.” Sandalow Affidavit, First Attachment. Although Sandalow replied on July 29, 1983, his letter was returned unclaimed. Sandalow Affidavit f 6 and Second Attachment. In any event, the matter was not resolved prior to the 1983 Fall Term.

On November 7, 1983, Picozzi requested a letter from Sandalow regarding his academic status at the Law School. See Complaint, Ex. P. On November 16, 1983, Sandalow responded:

I am writing in response to your letter of November 7, 1983 requesting a statement regarding your academic standing and a copy of your transcript. A copy of your transcript is enclosed.
My understanding is that you are currently on a leave of absence from the Law School, having withdrawn while in good academic standing. A question remains regarding your eligibility to re-enroll. As I wrote on May 13, 1983 and again on June 29, 1983, information that we have received from the police has raised a question regarding your responsibility for the fire in your room on March 8. My hope, as I have previously written, is that the question of your responsibility might be resolved by your taking a polygraph examination as requested by the Ann Arbor Police. Were you to take and pass such an examination, under the circumstances stated in my earlier letters, you would of course be eligible to re-enroll at the Law School. If, however, you decide against taking the examination or if you fail to pass it, a hearing would be necessary to determine your eligibility to re-enroll.

Complaint, Ex. Q.

On November 23, 1983, Picozzi asked Sandalow to write to James Thomas, Dean of Yale Law School, informing him that Picozzi is “currently on leave of absence from the University of Michigan Law School, having withdrawn while in good academic standing.” Complaint, Ex. R. On November 29, 1983, Sandalow replied that “it would be misleading for me to [write the requested letter] without a further statement indicating that there is a question regarding your eligibility to re-enroll at the Law School.” Complaint, Ex. S. On December 5, 1983, Picozzi repeated his request for an unqualified letter. See Sandalow Affidavit, Third Attachment. Sandalow replied on December 13, 1983, with a proposed letter to Dean Thomas including an explanation regarding Picozzi’s conditional eligibility to re-enroll. See Complaint, Ex. T. Picozzi rejected the proposed letter. See Complaint, Ex. U. This ended the parties’ communications with each other.

On July 30, 1984, Picozzi’s counsel demanded that Sandalow write an unqualified letter of good standing. See Complaint, Ex. V. Sandalow refused. See Complaint, Ex. W. On August 24, 1984, Picozzi filed this lawsuit against the Regents of the University of Michigan, President Shapiro, and Dean Sandalow.

His complaint contains five counts. Count I alleges that defendant deprived plaintiff of liberty and property without due process of law. Count II alleges that defendant violated plaintiff’s right to equal protection of the laws by conditioning his re-enrollment on successful completion of a polygraph exam or an administrative hearing. Count III alleges that defendant unconstitutionally conditioned the enjoyment of plaintiff’s liberty and property upon plaintiff’s waiver of his privilege against self-incrimination. Count IV summarily alleges that an “ex parte and ultra vires adjudicative mechanism” violated plaintiff’s rights to equal protection of the law. Complaint II122. Count V alleges that defendant breached a contract with plaintiff.

II. PROCEDURAL DUE PROCESS

Picozzi’s core claim is that Sandalow denied him procedural due process by detrimentally altering his status at the University without first affording him a hearing. Procedural due process claims require a two-step analysis. First, I must determine whether Sandalow deprived Picozzi of any liberty or property interest. Second, assuming I so find, I must determine whether the deprivation occurred without due process. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972) (“once it is determined that due process applies, the question remains what process is due.”); Benson v. Scott, 734 F.2d 1181, 1184 (7th Cir.1984), cert. denied,—U.S.-, 105 S.Ct. 435, 83 L.Ed.2d 361 (1984) (“The usual analysis of a due process claim proceeds sequentially. First, one determines ... whether a protected property interest exists at all. If such an interest is found, one determines what procedures must be followed____”). In resolving these issues I note that both parties seek Summary Judgment, and that there are no material facts that are controverted.

A. Deprivation of Protected Interest

The first question I must decide is whether Sandalow deprived Picozzi of a protected interest. I hold that he did. The gravamen of Picozzi’s claim is that Sandalow altered his good standing at the Law School, making it impossible for him freely to pursue his studies there or at any other accredited law school. Picozzi could not return to his studies at the University of Michigan because of conditions imposed upon his re-enrollment. He could not complete his studies at any other accredited law school because no such law school would accept him as long as his status at the University of Michigan was less than unqualifiedly good.

A public university student has a protected interest in continuing his studies. See Ewing v. Board of Regents of the University of Michigan, 742 F.2d 913, 915 (6th Cir.1984), rev’d (other grounds),—U.S.-, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (“[A]n implied understanding that a student shall not be arbitrarily dismissed from his university is a property interest____”); Dixon v. Alabama State Board of Education, 294 F.2d 150, 157 (5th Cir.1961), cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961); Stoller v. College of Medicine, 562 F.Supp. 403, 412 (M.D.Pa.1983), aff'd (without opinion), 727 F.2d 1101 (3d Cir.1984) (“[A] graduate student has a ‘property’ interest in continuing his studies.”); Hall v. University of Minnesota, 530 F.Supp. 104, 107 (D.Minn.1982) (“A student’s interest in attending a university is a property right protected by due process.”). This is as it should be. Education is the key—or at least the prerequisite—to many successful careers, including a career in law. See Dixon, 294 F.2d 157. When the government provides professional graduate education, it should do so within the constraints of due process.

Sandalow does not directly contest this point, but he contends vigorously that Picozzi has no protected interest at stake in this case. He argues that Picozzi has pleaded a protected interest in only a letter of unqualified good standing and not in a general right to continue his studies. He asserts that Picozzi has no protected interest in such a letter. Of course, if Picozzi has not been deprived of a protected interest, no due process concerns arise.

Sandalow’s argument construes the complaint too narrowly. Count I does allege a property deprivation in terms of a letter of good standing. Sandalow refused to issue such a letter because he had previously altered Picozzi’s status at the Law School by conditioning his re-enrollment. In other words, the controversy over the letter reflected an underlying dispute over Sandalow’s action temporarily and preliminarily restricting Picozzi’s ability to continue his studies. Picozzi’s allegation that Sandalow’s actions “in denying plaintiff a letter of good standing ... deprived plaintiff of property without due process of law,” Complaint ¶ 114, broadly construed, includes not only the controversy over the letter itself, but also the underlying dispute over Picozzi’s status at the University.

The cases Sandalow cites to support his argument on this point involve interests dissimilar to the protected interest asserted by Picozzi. Gearhart v. Thome, 768 F.2d 1072 (9th Cir.1985), Lawrence v. Aeree, 665 F.2d 1319 (D.C.Cir.1981), and Lodico v. United States, 571 F.Supp. 21 (E.D.Mich.1982) all involve performance evaluations or letters of recommendation. Picozzi has not claimed a protected interest in a letter of recommendation. He asked only for a letter confirming his good standing at the Law School. Sandalow refused the letter because Picozzi’s status was not unqualifiedly good. Sandalow’s action in altering Picozzi’s status from “good” to something less than that, thus temporarily interfering with his ability to pursue his studies, is ultimately what this lawsuit tests. Cases dealing with performance evaluations and letters of recommendation simply have no relevance.

Before evaluating the adequacy of process employed, I must find not only that Picozzi has a protected interest at stake, but also that Sandalow deprived him of the interest. Although I have already held that there was a deprivation, its precise nature requires some definition.

Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), helps define the deprivation in this case. In Mathews, the Court tested Social Security procedures for terminating a person’s disability payments. The procedures included an evidentiary hearing prior to final termination of benefits. But the procedures also included a preliminary step permitting termination of benefits without an evidentiary hearing. At the preliminary step, the Court defined a claimant’s interest as “the uninterrupted receipt of [disability payments] pending final administrative decision on his claim.” Mathews, 424 U.S. at 340, 96 S.Ct. at 905. The Court held that a claimant could properly be deprived of this limited interest without a prior evidentiary hearing.

In this case, the deprivation was similarly limited. Sandalow neither imposed nor sought formal disciplinary sanctions. Neither did he permanently and finally bar plaintiff’s access to legal education. He simply placed a temporary and preliminary hurdle in Picozzi’s path, pending the outcome of an administrative hearing. He made it clear to Picozzi that the University was ready to move ahead with a hearing at his convenience. See Complaint, Ex. 0. Picozzi resisted the hearing. Even as late as August 30 and 31, 1984, during a hearing on his Motion for Preliminary Injunction, Picozzi continued to oppose a hearing. ,

Although limited, the deprivation in this case is enough to trigger due process protection. Application of due process does not depend upon the weight of the interest, but upon the nature of the interest. See Goss v. Lopez, 419 U.S. 565, 575-76, 95 5. Ct. 729, 736-37, 42 L.Ed.2d 725 (1975); Board of Regents v. Roth, 408 U.S. 564, 570-71, 92 S.Ct. 2701, 2705-06, 33 L.Ed.2d 548 (1972). I have already held that Picozzi had a protected interest in continuing his studies at the University. By burdening this interest, Sandalow triggered due process protections for plaintiff.

B. Adequacy of Process

Although the weight of the protected interest is not relevant in triggering application of due process, it is an important factor in determining the precise procedure due in a particular case. To guide decision of what process is due in a particular case, the Court has articulated broad principles of due process. In general, the decision involves balancing government interests with private interests. Mathews, 424 U.S. at 334, 96 S.Ct. at 902. More specifically, the Court stated:

[Identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews, 424 U.S. at 334-35, 96 S.Ct. at 903. I now apply these principles to this case and hold that defendant fully complied with the requirements of due process.

1. Pre-deprivation Hearing

The first question I must decide is whether Picozzi was entitled to a hearing prior to Sandalow’s action depriving him of his interest in continuing his education pending the outcome of a full administrative hearing. I hold that he was not entitled to a hearing prior to deprivation of this limited interest. In Goss, supra, the Court applied procedural due process principles to an analogous, although more severe, situation of formal school discipline. The Court held that high school students facing ten-day suspensions are ordinarily entitled to some kind of hearing prior to suspension. The Court noted that the hearing required need not involve any more than an informal discussion between the student and the disciplinarian immediately following the incident leading to discipline. Goss, 419 U.S. at 582, 584, 95 S.Ct. at 740, 741. Based on this assumption of informality, the Court concluded “that as a general rule notice and hearing should precede removal of the student from school.” Goss, 419 U.S. at 582, 95 S.Ct. at 740. However, the Court stopped short of rigidly requiring a pre-suspension hearing in all cases. The Court stated:

We agree with the District Court ... that there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable, as the District Court indicated.

Goss, 419 U.S. at 582-83, 95 S.Ct. at 740.

This case falls squarely within the Goss provision for situations not requiring a presuspension hearing. Sandalow’s first letter to Picozzi following the fire specifically grounded Sandalow’s actions in concern for the safety of the law school community. See Complaint, Ex. N. In an earlier memorandum addressed to the law school community, Sandalow addressed a rising anxiety among the community’s members over various incidents of violence, including the fire, within the community. See Complaint, Ex. I. Such anxiety disrupts academic calm. This is precisely the situation in which Goss permits suspension without a prior hearing. Cf. Joseph v. St. Charles Parish School Board, 736 F.2d 1036, 1038 n. 2 (5th Cir.1984) (Construing Goss to permit suspension of a tenured teacher without a pre-suspension hearing where “immediate disciplinary action is necessary to prevent further disruption of the educational process.”).

Even if Sandalow had not complied with Goss, I would hold that under Mathews Picozzi received all the process to which he was entitled. This case does not involve formal suspension or any other school discipline. At stake in this case is a preliminary and temporary interference with Picozzi’s interest in continuing his education pending the outcome of an administrative hearing to be held at plaintiff’s convenience. See supra pp. 1577-78. Although even this limited deprivation might in some cases inevitably delay a student’s progress, in this case Picozzi could have promptly accepted Sandalow’s offer of a hearing and cleared up his status at the Law School prior to the first date on which he was physically able to return to class, further diminishing the severity of the deprivation. Under Mathews, the weight of the private interest affected is the first factor I must consider in determining the procedural protection required by due process. Because Picozzi’s interest in this case is less weighty than the interest at stake in Goss, less procedural protection is due him than was due the plaintiffs in Goss.

Moreover, strong public interests, a second factor in Mathews’ balance, supported Sandalow’s action. First, he had a duty to protect the security of the law school community. He discharged his duty by conditioning Picozzi’s re-enrollment on his clearing up the suspicion that naturally surrounded him as the subject of an unexplained arson fire. Second, Sandalow had a duty not to mislead other schools into thinking Picozzi was in unqualified good standing at the Law School. If Picozzi’s theory of the case prevails, Sandalow could be compelled to certify a student’s unqualified good standing, even though the student was subject to suspicion, simply because the school had not yet been able to conduct a formal hearing. Dean Sandalow, and others in his position, must have in such cases the authority to take prompt and reasonable preliminary action that preserves the school’s interest without finally and permanently depriving a student of his interest in continuing his education. Cf. Scheuer v. Rhodes, 416 U.S. 232, 246, 94 S.Ct. 1683, 1691, 40 L.Ed.2d 90 (1974) (“[O]fficials with a broad range of duties and authority must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.”). This is precisely what his action accomplished in this case.

Neither the specific dictates of Goss nor the general principles of Mathews entitled Picozzi to a hearing prior to Sandalow’s action conditioning Picozzi’s re-enrollment on his successful completion of a polygraph test or an administrative hearing.

2. Law School Handbook

Picozzi also argues that Sandalow denied him due process by using procedures other than those outlined in the Law School Handbook for “investigating and reporting student conduct bearing upon character and fitness for the practice of law.” Complaint, Exhibit H. Although I doubt whether Picozzi has sufficiently pleaded this claim as a due process deprivation (he has pleaded the matter as a contract claim), I will address it only to say that Picozzi’s claim, assuming it is properly pleaded, is legally untenable. Due process is a matter of federal constitutional law; failure to comply with state procedures does not, by itself, violate due process. Board of Curators v. Horowitz, 435 U.S. 78, 92 n. 8, 98 S.Ct. 948, 956 n. 8, 55 L.Ed.2d 124; Hall v. Medical College of Ohio at Toledo, 742 F.2d 299, 309 (6th Cir.1984), cert. denied,—U.S.-, 105 S.Ct. 796, 83 L.Ed.2d 789 (1985); Hill v. Trustees of Indiana University, 537 F.2d 248, 252 (7th Cir.1976); Bates v. Sponberg, 547 F.2d 325 (6th Cir.1976); Jaksa v. Regents of the University of Michigan, 597 F.Supp. 1245, 1251 (E.D. Mich.1984).

The only question for me is whether Picozzi received constitutionally adequate notice and hearing. I have already discussed and passed upon the constitutional adequacy of the hearing procedure. In addition, I hold that Picozzi received constitutionally adequate notice of the basis for defendant’s action. “The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394, 34 S.Ct. 779, 783, 58 L.Ed. 1363 (1914). Constitutionally adequate notice is that which provides a person with sufficient information to make the eventual hearing meaningful. See Mullane v. Central Hanover Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Already in his first letter to Picozzi, Sandalow made it clear that the purpose of conditioning Picozzi’s re-enrollment was to determine his responsibility for the fire. See Complaint, Ex. N (“The information available to us has led me to conclude that I would not be warranted in permitting you to re-enroll without a close examination of the question whether you are the person responsible for setting the March 8 fire.”). This is precisely the question that the 1985 administrative hearing finally adjudicated. Picozzi had official notice of it during May, 1983. Even if Sandalow had not made this perfectly clear by letter, I cannot believe anyone in Picozzi’s position could have been unaware of the basis for the Dean’s action.

3. Timing of the Administrative Hearing

Finally, Picozzi argues that the administrative hearing ultimately held should have taken place sooner than it did, even if not prior to Sandalow’s preliminary action. Picozzi relies upon Goss, which permits suspension in some cases without a pre-suspension hearing, but requires in those eases that a hearing follow suspension “as soon as practicable.” Goss, 4l9 U.S. at 583, 95 S.Ct. at 740. Picozzi argues that Sandalow failed to satisfy this requirement. I reject this argument.

First, Sandalow had no duty in this case to satisfy the strictures of Goss. See supra pp. 1578-79. Second, Picozzi himself is responsible for the delay in the hearing’s commencement. In both his first and second letters to Picozzi, Sandalow urged prompt reply. See Complaint, Exs. N, O. In his second letter, Sandalow expressed his hope that the entire matter could be resolved prior to the beginning of 1983 Fall Term. See Complaint, Ex. O. Unfortunately, Picozzi’s medical condition prevented such an early disposition of the matter. But even after he recovered, Picozzi—not Sandalow—resisted holding a hearing. See Prelim.Inj.Trans. at 14-18, 27-29. Picozzi cannot now complain of the delay he occasioned.

C. Qualified Immunity

Even if Sandalow did violate Picozzi’s procedural due process rights, and I hold he did not, I also hold that Sandalow is entitled on the facts of this case to qualified immunity. Qualified immunity seeks to provide state and federal officials, acting reasonably, with the authority to make difficult decisions and to exercise discretion without fear of being held to answer in damages. See Wood v. Strickland, 420 U.S. 308, 319-20, 95 S.Ct. 992, 999, 43 L.Ed.2d 214 (1975). In the words of the Supreme Court:

Even defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard.

Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 3018, 82 L.Ed.2d 139 (1984). It is now clear that qualified immunity shields officials from damage liability as long as 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, 2738, 73 L.Ed.2d 396 (1982). See also, Davis, 104 S.Ct. at 3018; Windsor v. The Tennessean, 719 F.2d 155, 165 (6th Cir.1983), cert. denied,—U.S.-, 105 S.Ct. 105, 83 L.Ed.2d 50 (1984).

In this case, Sandalow’s action was objectively reasonable because it did not violate a clearly established right of which a reasonable person would have known. Neither Goss, Mathews, nor any other federal law clearly requires a hearing prior to the preliminary action Sandalow took in this case. He faced a situation calling for prompt action and requiring reliance on information supplied by other people, precisely the situation in which Wood calls for application of the qualified immunity doctrine. Wood, 420 U.S. at 319, 95 S.Ct. at 999, quoting Scheuer, 416 U.S. at 246, 94 S.Ct. at 1691 (“As with executive officers faced with instances of civil disobedience, school officials, confronted with student behavior causing or threatening disruption, also have an ‘obvious need for prompt action, and decisions must be made in reliance on factual information supplied by others.’ ”). He responded by altering Picozzi’s status pending the outcome of a polygraph test, or a full administrative hearing. Even if this action violated Picozzi’s constitutional right, Sandalow cannot be held liable for damages because the right violated was not clearly established at the time he took the action.

III. OTHER MATTERS

A. Equal Protection

Counts II and IV of the complaint allege that Sandalow denied Picozzi equal protection by treating him differently than other students at the University. It is true that Sandalow conditioned the re-enrollment rights of Picozzi only. But he rightfully treated Picozzi differently than other students because Picozzi was not similarly situated with any other student. The unexplained arson fire took place in Picozzi’s room, and no one else’s room. No other student was seen near Picozzi’s room at the time of the fire. In fact, the Ann Arbor Police Department informed Sandalow that they considered Picozzi the primary, if not the only, suspect. See Sandalow Affidavit 114. These factors provided a rational basis for his action with respect to Picozzi. Since Picozzi is not alleging denial of a fundamental right or a classification based on suspect class lines, this is all equal protection requires. See, e.g., Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-73, 99 S.Ct. 2282, 2291-93, 60 L.Ed.2d 870.

B. Self-Incrimination

Picozzi alleges in Count III that Sandalow deprived him of his privilege against self-incrimination. Although the complaint does not articulate a theory for this cause of action, he argues in his brief that Sandalow deprived him of his privilege by asking him to submit to a polygraph test. In Picozzi’s words:

This request imposed an unconstitutional choice upon Mr. Picozzi. He either had to waive his right to silence ... or he had to request an administrative hearing at which his failure to take the examination was to be considered substantive evidence of his guilt.

Plaintiffs Brief at 20. I hold that Picozzi was not deprived of his privilege against self-incrimination by Sandalow’s request that plaintiff take a polygraph test.

Sandalow never conditioned Picozzi’s re-enrollment rights on a polygraph test. He presented the polygraph test to Picozzi as an option to accept or reject. In fact, if Picozzi submitted to a polygraph test and failed, Sandalow would still have permitted him to go through an administrative hearing. See Complaint, Ex. Q (“If, however, you decide against taking the examination or if you fail to pass it, a hearing would be necessary to determine your eligibility to re-enroll.”). That Picozzi’s refusal to take the test might be used at the administrative hearing as evidence that he set the fire does not threaten his privilege. In the first place, the refusal would have virtually no probative value because Sandalow gave him the option of a polygraph or a hearing. I do not think this' point would escape the attention of a qualified hearing officer. Furthermore, even though a person may assert the privilege against self-incrimination during a civil proceeding, the privilege protects a person from only criminal exposure. See, e.g., Kastigar v. United States, 406 U.S. 441, 444, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). The administrative hearing was a civil proceeding.

C. Contract

Count Y of Picozzi’s complaint alleges that he entered into a contract with the University upon enrollment at the Law School, and that the terms of this contract were contained in the Law School Handbook. He alleges that Sandalow breached this contract by failing to use the disciplinary procedures contained in the handbook. I reject this claim because I hold as a matter of law that Picozzi never entered into a contract to be governed by the procedures contained in the Law School Handbook. Even if he did enter into such a contract, I hold that Sandalow did not breach it in the manner alleged because Sandalow never sought to discipline Picozzi. Furthermore, Pennhurst, supra, forbids me from exercising pendent jurisdiction over a state law claim against state officials for the purpose of ordering state officials to comply with state law, or of assessing damages against state officials for violation of state law.

D. Defendant Shapiro

Plaintiff’s counsel stated before me on the record that he was retaining defendant Shapiro solely to preserve a motion for § 1988 attorney fees arising out of the Preliminary Injunction hearing and the administrative hearing. Although Picozzi has not presented the Court with a formal motion for fees, I sua sponte consider the matter now.

Under 42 U.S.C. § 1988, attorney fees are available to civil rights claimants. But no such fees may be awarded unless I find the party seeking fees to be a prevailing party. I hold that Picozzi was not a prevailing party at the Preliminary Injunction hearing. He wanted me to order defendants to issue an unqualified letter of good standing on his behalf. I did not enter such an order. Instead, the parties agreed after two mornings of discussion to conduct an administrative hearing to determine Picozzi’s responsibility for the fire. Although defendants pressed for the hearing, Picozzi initially resisted it. As is evident from the transcript of the hearing, Picozzi was not a prevailing party. Accordingly, he is not entitled to § 1988 fees for the Preliminary Injunction hearing.

Picozzi did prevail at .the administrative hearing conducted pursuant to the parties’ agreement. But that outcome, although important to him, does not make him the prevailing party on his underlying civil rights cause of action. On the contrary, I have just held that his civil rights were not violated. Accordingly, the administrative hearing cannot support § 1988 fees.

There being no reason for Shapiro to remain a defendant in this case, I order that he be dismissed with prejudice.

IV. DISPOSITION

For the reasons given in this opinion, defendant Sandalow’s Motion for Summary Judgment is GRANTED on all counts, and plaintiff Picozzi’s Motion for Partial Summary Judgment is DENIED on all counts. In addition, defendants Shapiro and Board of Regents are DISMISSED with prejudice.

IT IS SO ORDERED.

      . President Harold Shapiro and the University of Michigan Board of Regents are also defendants. Picozzi’s counsel agreed on the record before me to dismiss the Board of Regents based on their Eleventh Amendment immunity. No stipulation and order of dismissal has yet been filed with the Court. I therefore order the dismissal with prejudice of the Board of Regents, thus conforming the record to counsel’s agreement with me.
      The Eleventh Amendment also provides immunity to Sandalow and Shapiro in their official capacities. Accordingly, I order that these defendants, in their official capacities, be dismissed with prejudice.
      This leaves Shapiro and Sandalow as defendants in their individual capacities. This opinion deals primarily with defendant Sandalow’s liability. Accordingly, unless otherwise indicated, a reference to "defendant” means "defendant Sandalow." I dismiss with prejudice defendant Shapiro for the reasons given infra, pp. 1582-1583.

      . On August 24, 1984, Picozzi filed a verified complaint seeking a preliminary injunction ordering Sandalow to issue a letter of unqualified good standing on behalf of Picozzi. During a hearing on Picozzi’s Motion for Preliminary Injunction, the parties agreed to resolve through an administrative hearing the questions of Picozzi's responsibility for the March 8, 1983, fire, and of his standing at the Law School. The Hearing Officer issued his decision "that the University of Michigan has not, by clear and convincing evidence, established that James M. Picozzi started the fire in Room K-33 at the University of Michigan Law School on March 8, 1983” on August 22, 1985. Hearing Officer’s Decision at 42. Pursuant to this decision, Sandalow issued a letter of good standing on August 23, 1985. After presenting this letter, Picozzi was accepted by Yale Law School, where he is currently enrolled. Picozzi Supplemental Affidavit jfIf 7, 8.

      . Although Picozzi charges Sandalow in the complaint’s first paragraph with intentional infliction of emotional distress, he does not state this theory in a separate count or cause of action. I must conclude that he does not assert the theory against Sandalow. Even if Picozzi had raised the theory, I would find that the allegations of the complaint fail to support such a cause of action under Michigan law. See Roberts v. Auto-Owners Insurance Company, 422 Mich. 594, 374 N.W.2d 905 (1985). Furthermore, Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), forbids my exercise of pendent jurisdiction to award damages against state officials for violation of state law.

      . Whether the interest is best termed “property" or "liberty” is not material. What is important is that Picozzi has an interest triggering due process.

      . Picozzi has variously characterized Sandalow’s action as suspension, expulsion, and de facto expulsion. Although I am bound in considering Sandalow’s Motion for Summary Judgment to accept Picozzi’s factual allegations as true (at least where the allegations are not contradicted by unanswered affidavit), nothing requires me to accept Picozzi’s characterization of the factual allegations. No factual allegations support Picozzi’s characterization of Sandalow’s action. Cf. Prelim.Inj.Trans. at 37 ("[Defendants’ counsel]: [W]e are not seeking to discipline Mr. Picozzi by these proceedings. We are seeking to determine whether or not he can be re-enrolled in good standing.”).

      . See Preliminary Injunction Transcript at 14-18, 27-29.

      . Picozzi’s counsel conceded this during oral argument on these motions. Counsel stated that under Goss, Sandalow could have legitimately suspended Picozzi without a hearing immediately after the fire. Counsel qualified his concession by arguing that Goss permits suspension without a prior hearing only if a hearing takes place promptly after the suspension. In this case, counsel noted, the hearing took place nearly two years after the fire. I consider Picozzi's timing argument elsewhere in my opinion. See infra pp. 1580-81.

      . Picozzi was hospitalized until May, 1983, and remained in a body cast until October, 1983. See Prelim.Inj.Trans. at 23. Sandalow first offered Picozzi a hearing by letter dated May 13, 1983. See Complaint, Ex. N.

      . I do not mean to imply a finding that Sandalow violated applicable state or Law School procedures.

      . Only federal law is relevant to the application of qualified immunity. See Davis, 104 S.Ct. at 3019-21.

      . Pennhurst's rationale does not forbid me from exercising pendent jurisdiction to rule that state officials complied with state law. Such a ruling by a federal court is not an “intrusion on state sovereignty.” Pennhurst, 465 U.S. at 106, 104 S.Ct. at 911.

      . Even if Picozzi were a prevailing party for purposes of § 1988, I would exercise my statutory discretion to deny an award of attorney fees in this case.


source: Caselaw Access Project

author: ALLEN SHARP,

license: Public Domain

text:
    PORTER COUNTY CABLE COMPANY, INC., Plaintiff, v. Charles MOYER, and Charles Moyer, d/b/a F.A. Distributors, Defendants.
    No. S 82-172.
    United States District Court, N.D. Indiana, South Bend Division.
    Jan. 13, 1983.

      F. Joseph Jaskowiak, Valparaiso, Ind., for plaintiff.
    Alban L. Smith, Michigan City, Ind., William L. Hoehner, Valparaiso, Ind., Charles G. Nightingale, Portage, Ind., for defendants.
   MEMORANDUM AND ORDER

ALLEN SHARP,

Chief Judge.

This case is before the Court on plaintiff’s Motion for Summary Judgment filed December 9, 1982. No response has been filed within the time limits fixed by Rule 7 of the local rules of this Court. The allegations of plaintiff’s Motion for Summary Judgment stand before this Court without dispute and disclose that plaintiff is entitled to judgment as a matter of law.

I.

On April 21, 1982 plaintiff, Porter County Cable Company, Inc., filed its complaint against defendants, Charles Moyer and Charles Moyer d/b/a F.A. Distributors. On that same day, plaintiff filed a Motion for Temporary Restraining Order and for a Preliminary Injunction and a Memorandum in Support of Application for Temporary Restraining Order. Along with that Motion and Memorandum, plaintiff also filed two affidavits, one by Ronald Ellis and one by Debora Butterfield. Neither Mr. Ellis nor Ms. Butterfield are currently employed by plaintiff. All depositions filed are ordered published. On May 5, 1982, plaintiff’s motion was continued indefinitely, as a result of a tentative agreement to settle the case. On June 28, 1982 the Court granted the withdrawal of defendants’ counsel, Murphy, Bums and Mclnerney, P.C. Defendants are presently represented by Attorney Alban L. Smith. On July 14, 1982, the deposition of Charles T. Moyer was taken by plaintiff’s counsel.

Porter County Cable Company, Inc., (hereinafter Porter Cable) provides cable television service only to those customers who pay subscription fees. [Ronald Ellis, Affidavit, filed on April 21, 1982, par. 2-5]. The programs offered by Porter Cable are not intended for use by the general public, but are intended only for the use of paying subscribers. [Éllis, Aff. par. 2-5]. The customers must pay an additional fee to view each of two premium channels— “Showtime” and “Cinemax”. [Ellis, Aff., par. 5]. Defendants have made available to Porter Cable customers devices which allow the customers to decode “Showtime” and “Cinemax” transmissions so that they may be viewed without paying the additional fee. [Ellis, Aff., par. 11-13; Debora Butterfield, Affidavit, filed on April 21, 1982; Charles T. Moyer, Deposition, July 14, 1982, p. 8 1. 18-20 & p. 11 1. 5-8].

In his deposition, defendant, Charles T. Moyer, described an advertisement, which defendants had placed in a newspaper, and which stated in part: “This unit [a Jerrold System decoder] will pay for itself in approximately ten months.” [Moyer, Depo., p. 50 1. 9-25, p. 511. 1 & p. 51 1. 7-24]. In explaining what this portion of the advertisement meant, defendant stated that it would pay for itself within ten months because a basic cable subscriber would not have to pay any additional fee to view any of the premium channels offered through plaintiff if the subscriber purchased a decoder from Moyer, through his business. [Moyer, Depo., p. 53 1.10-15, p. 54 1.19-25 & p. 55 1. 1-6]. Defendant, Charles T. Moyer, admitted that he, through his business, sold decoding devices to Porter Cable subscribers. [Moyer, Depo., p. 8 1. 18-20 & p. 111. 5-8. See Orlo H. Jackson Affidavit.]

In addition, defendant stated that he had previously “sold equipment that was illegal for the customer to use” and that he considered these sales of unauthorized decoder, boxes to be “the same.” [Moyer, Depo., p. 54 1. 9-18]. Moyer concluded his deposition by stating that although neither he nor F.A. Distributors were in the business of selling decoder devices at the time of the deposition, “they may be in the future”. [Moyer, Depo., P. 68 1. 3-9].

The issues here presented are:

1. Were defendants’ actions in selling and otherwise making electronic decoders available to Porter Cable subscribers a violation of the laws of the United States?

2. Were defendants’ actions in selling and otherwise providing unauthorized decoder boxes to Porter Cable subscribers a violation of the laws of the State of Indiana, which provide relief in the form of treble damages and attorney fees for such violation.

II.

Defendants actions in selling and otherwise making electronic decoders available to Porter Cable subscribers is a violation of Section 605 of the Communications Act of 1934, 47 U.S.C. § 605. That act provides, in pertinent part:

[N]o person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto;

Id. The Courts have recognized the existence of a private right of action under Section 605. Chartwell Communications Group v. Westbrook, 637 F.2d 459, 466 (6th Cir.1980); Reitmeister v. Reitmeister, 162 F.2d 691, 694 (2d Cir.1947).

Further, Section 605 has served as the basis for injunctive relief in cases almost identical to the present one. In Chartwell Communications Group v. Westbrook, the operator of an over-the-air subscription television service sued to enjoin the defendants from selling equipment that would enable non-subscribers to receive the plaintiff's programs. Chartwell, 637 F.2d at 460-62. The Chartwell court noted that “Section 605 protects radio communications, (which include television communications, ...) from unauthorized reception, interception, divulgence, publication, etc.” Id. at 462. The court held that selling decoders constituted assistance to third parties in receiving communications to which they were not entitled. Id. at 466. These activities were found to be a violation of the Communications Act. Id.

A similar result was reached in National Subscription Television v. S & H TV, 644 F.2d 820 (9th Cir.1981). The owners and operators of a subscription television service sued the, makers and distributors of decoding devices which were not authorized by the service. Id. at 821. The decoding devices enabled television sets to decode and unscramble the services’ encoded and scrambled signals, without the use of a decoder leased from the service. Id. The court held that the distribution of unauthorized decoding devices violated 47 U.S.C. § 605. Id. at 826. Thus, in this case, defendants’ actions of selling and making available decoding devices to Porter Cable subscribers was a violation of the laws of the United States, namely 47 U.S.C. § 605.

III.

As was stated in the pleadings, this Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, because defendants’ actions are in violation of a federal statute, specifically 47 U.S.C. § 605. In addition, defendants’ actions are a violation of state law, specifically Indiana Code Sections 35-43-5-3, 35-43-4-3, and 34-4-30-1. These specific state statutes provide for additional relief for plaintiff in this case, namely attorneys fees and treble damages. This Court has jurisdiction to hear plaintiff’s claim as to the defendants’ violation of state law under the doctrine of “pendent jurisdiction”.

Pendent jurisdiction exists whenever there is a claim “arising under [the] Constitution, the laws of the United States, ..., and the relationship between that claim and the state claim permits the conclusion that the entire action before the Court comprises but one constitutional ‘case’”. United Mine Workers of Amer ica v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). See also Uptown People’s Community Health Services Board of Directors v. Board of Commissioners of Cook County, 647 F.2d 727 (7th Cir.1981). The state claim must arise out of the same nucleus of operative fact as the federal claim. Uptown, 647 F.2d at 732. Pendent jurisdiction exists where a plaintiff would be expected to try both state and federal claims in one judicial proceeding. See Gibbs, 383 U.S. at 726, 86 S.Ct. at 1139; Uptown, 647 F.2d at 732. The requirements for pendent jurisdiction are met in the present case. Defendants’ same actions violated both federal and state law.

Indiana law specifically prohibits the use of unauthorized decoder boxes by cable subscribers or others. Indiana’s Deception Statute states in pertinent part:

[a] A person who:
(6) With intent to defraud another person furnishing ... cable TV service, ... avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service;
commits deception, a Class A misdemean- or.

I.C. § 35-43-5-3 (Burns 1979)

In addition to the specific prohibition under Indiana law, persons who use unauthorized decoder boxes are in violation of Indiana’s Conversion Statute, which provides “[a] person who knowingly or intentionally exerts unauthorized control over property of another person commits criminal conversion, a Class A misdemeanor.” Ind.Code. § 35-43-4-3 (Burns 1979).

Both the deception and conversion statutes were discussed in Moser v. State, 433 N.E.2d 68 (Ind.App.1982), a case involving cable television. The defendant Moser had moved into an apartment and had been advised by another tenant that when the tenant had lived in his apartment, the television had been hooked up to cable. Id. at 69. Moser hooked the aerial wire in his apartment to his television. Id. Moser knew that the cable company’s line had been illegally spliced. Id. He was never billed for cable television service. Id. Moser was convicted of criminal conversion for obtaining cable television without paying for it, and without the consent of the company, Total Cable Television. Id. at 68.

The Moser court stated in a footnote that Moser was not charged pursuant to Indiana Code Section 35-43-5-3. Moser, 433 N.E.2d at 68 n. 1. The court, in the footnote, described that portion of the statute which was applicable to the unauthorized use of cable television service. Id. The footnote was presumably included because the Indiana Court of Appeals believed that defendant Moser was in violation of that statute as well.

In the present case, defendants violated Indiana’s Deception and Conversion Statutes, since defendants provided the means whereby Porter Cable subscribers converted plaintiff’s “property” and since defendants participated in a “scheme” whereby plaintiff would be defrauded and deprived of its due fee for cable service. Defendants knew that should purchasers use the unauthorized decoder boxes, which use was the most obvious reason for the purchase, such use would be illegal, since it would result in deception and conversion in violation of Indiana law. Defendants’ actions were violative of Indiana’s Deception and Conversion Statutes, since all who participate in an act or transaction which is a misdemeanor are liable as principles. McDaniels v. State, 185 Ind. 245, 113 N.E. 1004, 1006 (1916). See Mitchell v. State, 233 Ind. 16, 115 N.E.2d 595, 599 (1953); State v. Sutherlin, 228 Ind. 587, 92 N.E.2d 923, 925 (1950).

In the present case, defendants provided unauthorized boxes to cable subscribers for use, knowing that such use, in fact the only use for which such boxes were intended, would be illegal. [See Moyer, Depo., p. 54 1. 8-18]. In so providing, defendants violated Indiana’s Aiding Statute, Ind.Code § 35-41-2-4 (Burns 1979), by aiding plaintiffs subscribers in committing offenses under Indiana’s Deception and Conversion Statutes. By violating Indiana’s Aiding Statute, defendants became guilty of violating Indiana’s Deception and Conversion Statutes. Indiana Code Section 35-41-2-4 provides that: “[a] person who knowingly or intentionally aids, induces or causes another to commit an offense commits that offense even if the other person:

(1) has not been prosecuted for the offense;

(2) has not been convicted of the offense or

(3) has been acquitted of the offense.”

In another recent case, the Indiana Court of Appeals approved the application of this statute to a defendant who was charged with aiding in the commission of a misdemeanor, criminal mischief. Tilton v. State, 416 N.E.2d 870, 873 (Ind.App.1981). That case indicates that Indiana’s Aiding Statute applies to misdemeanors as well as felonies. Thus defendants’ actions, which actions aided in the commission of two misdemeanors under Indiana’s Deception and Conversion Statutes, were in violation of Indiana’s Aiding Statute. With respect to the deception statute, defendants, in the present case, aided Porter Cable subscribers in avoiding lawful charges for the viewing of premium cable channels. As defendant, Charles T. Moyer, stated in his deposition, by purchasing a decoder from him, basic cable subscribers could avoid the additional premium channel fees. [Moyer, Depo., p. 53 1. 10-15, p. 54 1. 19-25 & p. 55 1. 1-6]. Thus, defendants’ actions violated Indiana Code Section 35-43-5-3, Indiana’s Deception Statute. With respect to the conversion statute, defendants aided Porter Cable subscribers in converting plaintiff’s property by providing plaintiff’s subscribers with unauthorized decoder boxes. [Moyer, Depo., p. 8 1. 18-20 & p. 11 1. 5-8. See Orlo H. Jackson, Aff.]. These boxes enabled the subscribers to exert unauthorized control over plaintiff’s property, thereby violating Indiana Code Section 35-43-4-3, Indiana’s Conversion Statute. Thus, whether defendants are principles in the commission of misdemeanors or whether defendants have violated Indiana’s Aiding Statute, the result is that defendants violated both Indiana’s Deception Statute and Indiana’s Conversion Statute.

With respect to damages in this action, both Indiana Code Sections 35-43-4-3 and 35-43-5-3 are criminal statutes. However, the Indiana legislature has provided that they may be used as the basis for imposing civil liability. The Indiana Code provides that “[i]f a person suffers a pecuniary loss as a result of a violation of I.C. 35-43 (35-43-1-1 — 35-43-5-5) he may bring a civil action against the person who caused the loss for: (1) an amount equal to three [3] times his actual damages; (2) the costs of the action; and (3) a reasonable attorney’s fee.” Ind.Code § 34-4-30-1 (Burns Supp.1982). In order to impose civil liability under the statute, it is not necessary for the defendants to be convicted in a criminal case. American Leasing, Inc. v. Maple, 406 N.E.2d 333, 335 (Ind.App.1980).

In addition to the damages requested under state law claims, which are enumerated in Indiana Code Section 34-4-30-1, plaintiff is entitled to permanent injunctive relief under both federal and state law claims. As a requisite to the granting of injunctive relief, plaintiff must demonstrate that he has no adequate legal remedy. Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959). An adequate legal remedy has been defined as a “remedy which is plain and complete and as practical and efficient to ends of justice and its prompt administration as remedy in equity by injunction.” Local Union 499 of International Brotherhood of Electrical Workers, AFL-CIO v. Iowa Power and Light Co., 224 F.Supp. 731, 738 (D.Iowa 1964). The legal remedy may not be adequate where damages would be speculative, since the amount of damage is difficult or impossible to measure, Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 584-85, 72 S.Ct. 863, 865, 96 L.Ed. 1153 (1952); International Brotherhood of Electrical Workers, 224 F.Supp. at 738; 11 Wright & Miller Federal Practice and Procedure § 2994 (1973), or where the plaintiff could obtain legal relief only through multiple actions, Reed Enterprises v. Corcoran, 354 F.2d 519 (D.C.Cir. 1965); 11 Wright & Miller Federal Practice and Procedure § 2994.

In the present case, defendant, Charles T. Moyer, has stated F.A. Distributors may be in the business of selling decoders in the future, [Moyer, Depo., p. 68 1. 3-9], just as it had been in the past, [Moyer, Depo., p. 8 1. 18-20 & p. 11 1. 5-8. See Orlo H. Jackson, Aff.]. Hence, to effectively stem defendants’ illegal actions, plaintiff would be forced to sue defendants each and every time they sold a decoding device to one of plaintiff’s subscribers. This prospect of multiplicity of suits dictates that plaintiff has no adequate legal remedy in this matter and should be granted permanent injunctive relief.

Therefore, in light of the foregoing memorandum, the pleadings, the previously-filed affidavits, the affidavit of Orlo H. Jackson, filed in support of the Motion for Summary Judgment, and exhibits and the depositions, this Court now grants plaintiff’s Motion for Summary Judgment, issues a permanent injunction, enjoining defendants from selling decoder boxes to Porter County Cable Company subscribers in the future, and sets a hearing on the issue of damages, including reasonable attorney fees.

SO ORDERED.

Hearing on damages is set for the 3d day of March, 1983 at 1:30 o’clock P.M. in South Bend, Indiana.


author: KEHOE, District Judge.

text:
    NATIONAL FOOTBALL LEAGUE and Miami Dolphins, Ltd., Plaintiffs, v. The ALLEY, INC., American, Embassy, Inc., Frank and Helen DeCesare, d/b/a DeCesares Place For Ribs, Hernandez-McGeehan Corp., Hotel Properties, Ltd., Scotchel Enterprises, Inc., and Starship Odyssey, Inc., Defendants.
    No. 83-0701-CIV-JWK.
    United States District Court, S.D. Florida.
    Dec. 29, 1983.

      John Vanderstar, Margaret R. Alexander, Covington & Burling, Washington, D.C., for NFL.
    Robert Shevin and Brian Dervishi, Sparber, Shevin, Rosen, Shapo & Heilbronner, Miami, Fla., for Miami Dolphins.
    Richard G. Lubin, Lubin, Hamill & Gomberg P.A., West Palm Beach, Fla., for Scotchel Enterprises, Inc., American Embassy, Inc. and Hernandez-McGeehan Corp.
    Goldberg Young & Borkson, Ft. Lauder-dale, Fla., for Starship Odyssey, Inc.
   ORDER CONTAINING FINDINGS OF FACT AND CONCLUSIONS OF LAW

KEHOE, District Judge.

This is a civil action in which plaintiffs, the National Football League and Miami Dolphins, Ltd., assert that certain local bar and restaurant owners violated federal and state rights by intercepting private satellite transmissions of football game telecasts and showing such programs in their bars. After a bench trial and consideration of all parties’ oral and written submissions, the Court ruled for plaintiffs on the copyright issue and took the other claims under advisement. By the Declaratory Judgment and Injunction dated September 16, 1983, defendants were permanently enjoined from infringing plaintiffs’ copyrights in NFL game programs.

On November 22, 1983, after further briefing, the Court ruled orally on the remaining claims under the Federal Communications Act and Florida state law, Counts III, IV and V of the Amended Complaint. Pursuant to Federal Rule of Civil Procedure 52(a), the following are the Court’s findings of fact and conclusions of law with respect to Counts III, IV and V.

FINDINGS OF FACT

The Parties

1. Plaintiff National Football League (“NFL”) is an unincorporated nonprofit association constituted under the laws of New York. The NFL is composed of 28 member clubs that are engaged in the business of exhibiting professional football games. Through the NFL, the member clubs schedule games against one another and otherwise manage their affairs as a league.

2. Plaintiff Miami Dolphins, Ltd. (“Dolphins”) is a Florida limited partnership located in Miami. It is in the business of exhibiting professional football games. It holds the NFL franchise in Miami and is a member club of the NFL. Its “home games” are played in the Orange Bowl in Miami, Florida.

3. Defendants Hernandez-McGeehan Corporation (“Hernandez”), American Embassy, Inc. (“American Embassy”) and Scotchel Enterprises, Inc. (“Scotchel”) are all Florida corporations that own and operate public restaurants and lounges located in Miami and West Palm Beach, Florida.

Plaintiffs’ Interest in Game Telecasts

4. On March 16, 1982, the Commissioner of the NFL, on behalf of the member clubs, entered into contracts with the three major networks, ABC, CBS and NBC, to provide for the telecasting of live television programs of NFL regular season and postseason games for five seasons commencing in the fall of 1982. By these contracts, each network obtained exclusive rights to televise certain NFL games, subject to contractual limitations, among them the requirements that unsoldout games not be broadcast live — i.e., that they be “blacked out” — in the home club’s “home territory,” which means the area within a 75-mile radius of the club’s home city, and that all of a club’s “away” games be broadcast live back to the home city.

5. These exclusive contracts with their limitations on broadcast rights serve plaintiffs’ economic interest in controlling the distribution of the sports entertainment product that the clubs create. The contract limitations also foster development of a local following for individual clubs.

6. In accordance with the contracts, the networks telecast live the Dolphins home games of December 5, 18 and 27, 1982 and January 8, 16 and 23, 1982. The live telecasts of December 5, 18 and 27, 1982, and January 8, 1983, were “blacked out” in the Dolphins home territory and thus were unavailable for viewing by the general public on any television station broadcasting in south Florida. The live telecasts of the games played on January 16 and 23, 1983, were not “blacked out.”

The Telecasting Process

7. Each of the Dolphins home game programs was created in a network mobile unit near the Orange Bowl, and transmitted by satellite and telephone line to network studios in New York. At the studios, nationwide commercials, promotional announcements and sports news updates were added and the signal was then instantaneously transmitted to certain network affiliated television broadcast stations by means of telephone lines and microwave transmission, or, on occasion, by satellite. Local broadcast stations then inserted their own commercials and other material, and broadcast over the air.

8. Until all of the national and local commercials, commentary and station identification materials were added, the transmissions were not complete for broadcast purposes.

9. The satellite signals capable of being intercepted were transmitted in the so-called “C band” frequencies, 3700 to 4200 megahertz.

10. Expert testimony established that it is not possible to receive “C band” transmissions with ordinary home television equipment. Instead, special earth stations — or “dish antennas” — are required. This Court has already held that such antennas are not commonly used in private homes. Declaratory Judgment and Injunction, ¶ 5.

Defendants’ Activities

11. Defendants have motorized receive-only earth stations (“dish antennas”) approximately 13 feet in diameter installed on their business premises, together with satellite receivers and other auxiliary equipment. By means of these devices, satellite signals are received and converted to a frequency that can be displayed on the multiple television sets and viewing screens in Bogie’s Lounge, American Embassy Lounge and the Yorkshire Inn.

12. Defendants’ dish antennas and their auxiliary equipment were purchased and installed at a cost of approximately $6,000-6,500 for each system.

13. By using the dish antenna, each defendant obtained satellite signals embodying some or all the “blacked out” Dolphins home game programs of December 5, 18 and 27, 1982, and January 8, 1983, and at least one of the “non-blacked out” Dolphins homegames of January 16 and 23, 1983.

14. All defendants made the live programs available to patrons at their bars on multiple television sets and viewing screens. Such patrons purchased meals and/or drinks while viewing the programs. On occasion defendant Scotchel charged admission or solicited donations from patrons wishing to view the intercepted programs.

15. At no time have plaintiffs or any of the three telecasting networks authorized defendants’ reception or public showing of the satellite feeds carrying Dolphins home game programs.

16. The NFL and Dolphins have sustained, and will continue to sustain, irreparable injury due to defendants’ activities. The defendants have testified that they will continue to engage in activities complained of unless enjoined by this Court.

Players’ Interest in Game Telecasts

17. Dolphins team members have consented to the use of their names and likenesses in game telecasts by participation in televised games and by entering into player contracts granting plaintiffs the right to so use their names and likenesses.

18. Defendants’ use of such names and likenesses by public showings of intercepted telecasts, while it conferred commercial advantages, was not a trade or advertising use that directly promoted defendants’ bar/restaurant services or any product.

19. Defendants’ customers were attracted to defendants’ establishments by the football game telecasts which were of current legitimate public interest.

CONCLUSIONS OF LAW

1. This Court has jurisdiction of the Communications Act claim under 28 U.S.C. § 1331, and pendent jurisdiction of the state law claims which share with the federal issues a common nuncleus of operative fact. United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966).

Federal Communications Act

2. Satellite transmissions of NFL game programs are radio communications within the meaning of Section 605 of the Federal Communications Act of 1934 as amended, 47 U.S.C. § 605. See In the Matter of Regulation of Domestic Receive-Only Satellite Earth Stations, 74 F.C.C.2d 205, 216 (1979).

3. Plaintiffs have demonstrated important economic and professional interests in the integrity of the communications system that distributes their entertainment product. Such interests are within the protective sphere of Section 605. Indeed, plaintiffs concerns are not logically distinguishable from those of the transmitting networks. The Court therefore concludes that the NFL and Dolphins have standing to bring this private action for violation of their statutory rights. Cf. American Television and Communications Corp. v. Western Techtronics, Inc., 529 F.Supp. 617 (D.Col.1982).

4. The satellite transmissions at issue are not deprived of protection by Section 605’s proviso exempting interception of “any radio communication which is broadcast or transmitted ... for the use of the general public.” First, the Federal Communications Commission restricts use of the C band frequencies to “point-to-point” communications, not broadcasts. See Regulation of Receive-Only Earth Stations, supra, 74 F.C.C.2d at 216; 47 C.F.R. § 2.106. Second, the necessity of special and expensive receiving equipment not in common household Use demonstrates that the satellite transmissions cannot have been intended for use by the general public.

5. Each defendant’s activities violated the express language of Section 605. The interceptions of protected satellite communications were unauthorized. The communications’ comments were “divulged” to the paying public present at defendants’ lounges. The defendants thereby used, “for their own benefit,” intercepted communcations to which they were not entitled.

6. Plaintiffs have demonstrated irrepable injury to which there is no adequate remedy at law. Moreover, defendants’ unlawful practices are inimical to the public interest embodied in Section 605. Injunctive relief is therefore appropriate.

Florida’s Statutory “Right of Publicity”

7. Section 540.08 of the Florida Statutes prohibit unconsented use of an individual’s name and likeness only when such directly promotes a commercial product or service. Loft v. Fuller, 408 So.2d 619 (Fla. 4th D.C.A., 1981). Because defendants did not so use Dolphins players’ appearances in the intercepted transmissions, such use did not violate Section 540.08.

8. Moreover, Section 540.08 exempts from its prohibition unconsented use of names or likenesses as part of a “presentation having a current or legitimate public interest.” Defendants’ use of the intercepted telecast falls within this statutory exemption.

9. Even if a prohibited use had occurred, the players’ contractual consent to appear in game telecasts constituted waiver of their rights under the Florida statute.

Common Law “Right of Publicity”

10. Assuming, without holding, that Florida’s common law recognizes a right of publicity, the right is a personal one and may not be assigned to another entity. Consequently, these plaintiffs lack standing to bring a common law action on behalf of individual players.

11. Even if plaintiffs could properly assert players’ rights, defendants’ use of players’ professional personalities has not been shown to be an advertising use such as would offend those rights. Whatever commercial benefit defendants derived, it was not sufficient to recover under the common law doctrine.

CONCLUSION

12. Final Judgment on the remaining counts of the amended complaint will be entered by separate order pursuant to these findings of fact and conclusions of law.

FINAL JUDGMENT AND INJUNCTION

THIS ACTION came on for final hearing before the Court, the undersigned judge presiding, and a decision having been duly rendered by the Court’s Findings of Fact and Conclusions of Law, it is therefore

ORDERED AND ADJUDGED as follows:

(a) Defendants’ interception, divulgance and use of private satellite communications for their own benefit by public showings in their places of business violated plaintiffs’ rights under Section 605 of the Federal Communications Act of 1934, as amended.

(b) Defendants American Embassy, Inc., Hernandez-McGeehan Corporation and Scotchel Enterprises, Inc., their officers, agents, servants, employees and attorneys, and all persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise, are hereby permanently enjoined from intercepting satellite transmissions of live NFL football game programs by means of satellite earth stations and divulging or publishing the existence, contents, substance, purport, effect or meaning of such transmissions, or using such transmissions for their own benefit or the benefit of anyone else not entitled thereto, without the prior written consent of the National Football League and participating home clubs.

(c) Count IV of the Amended Complaint is hereby dismissed with prejudice.

(d) Count V of the Amended Complaint is hereby dismissed with prejudice.

      . The other defendants named in the complaint, The Alley, Inc., Hotel Properties, Inc., Frank and Helen DeCesare d/b/a/ DeCesare’s Place for Ribs and Starship Odyssey, Inc., settled prior to trial. The complaint against The Alley, Inc. was voluntarilly dismissed. Consent judgments have been entered against the other defendants.


author: BROOKS, District Judge.

text:
    Rodney SANTINI, Plaintiff, v. The TOWN OF NEW HARMONY, Board of Trustees of Town of New Harmony, Donald Hatfield and Ralph Hardy, Individually and as members of the Board of Trustees, Town of New Harmony; and Gary Watson, Individually and as Town Marshal of the Town of New Harmony, Defendants.
    No. EV 82-317-C.
    United States District Court, S.D. Indiana, Evansville Division.
    July 9, 1984.

      Rodney H. Grove, Evansville, Ind., for plaintiff.
    Charles Berger, Berger & Berger, Evansville, Ind., for defendants.
   FACTUAL SUMMARY

BROOKS, District Judge.

On June 2, 1980, defendant, Board of Trustees of Town of New Harmony, (hereinafter “Board”) hired plaintiff, Rodney Santini as Town Marshal for the Town of New Harmony. As a condition of his employment, defendant required plaintiff to serve as Town Marshal for six (6) months on a probationary basis. According to plaintiff's amended complaint, the terms of plaintiff’s employment contract stipulated that the Board would then retain plaintiff as Town Marshal and would send him to the Police Academy for the required training.

In January, 1981, seven (7) months after defendants hired plaintiff, the Board dismissed plaintiff from his duties as Town Marshal. Plaintiff received neither a hearing nor notice prior to his dismissal.

MEMORANDUM ENTRY

COUNT ONE

Plaintiff invokes the jurisdiction of this Court under 28 U.S.C. § 1343 upon a claim that defendants violated his civil rights as guaranteed by 42 U.S.C. § 1983. Plaintiff alleges that defendants wrongfully terminated his employment and in so doing denied him equal protection under the laws and due process. Plaintiff makes two arguments in support of his claim. First, plaintiff contends that Indiana Code 18-3-1 — 16(d) [Indiana Code 18-3-1-16, recodified as Indiana Code 36-5-7-3 by Acts 1980, P.L. 212 § 4] and Indiana Code 18-1-11-3 [Indiana Code 36-8-3-4, as added by Acts 1981, P.L. 309 § 52; 1981, P.L. 315 § 2.] protected his employment from termination without due process. Alternatively, plaintiff argues that he possessed a “property interest” in his position which was protected by 42 U.S.C. § 1983. The Court will address each argument in turn.

Plaintiffs initial argument that Indiana Code 18-3-l-16(d) and Indiana Code 18-1-11-3 guaranteed to him due process proceedings prior to termination must necessarily fail for lack of complete applicability. Indiana Code 18-3-l-16(d) provides:

The board of trustees of every town not operating under the metropolitan police department system shall appoint a marshal who shall serve during the pleasure of the board and whose salary shall be fixed by the board. However, before terminating or suspending any marshal or deputy marshal who has satisfied the basic training requirements of the law enforcement training board, and who has been employed by the town for more than six (6) months after completing the basic training requirements the board of town trustees must follow the disciplinary removal and appeals procedure prescribed by I.C. 18-1-11-3 [Acts 1969, ch. 252, § 214; 1977, P.L. 204 § 1; 1979, P.L. 170, § 1].

Indiana Code 18-1-11-3 calls for notice and hearing procedures prior to termination. In order to fall within the protection of 18-1-11-3, plaintiff must fulfill the requirements of Indiana Code 18-3-l-16(d).

Indiana Code 18-3-l-16(d) establishes a probationary period during which the marshal serves solely “during the pleasure of the board.” This probationary period extends for six (6) months after the marshal “has satisfied the basic training requirements of the law enforcement training board.” At the time of his dismissal and by his own admission, plaintiff had not satisfied the basic training requirements adopted by the Law Enforcement Training Board under Indiana Code 5-2-l-9(b) [Acts 1967, ch. 209, § 9; 1982, P.L. 31 § 1.] This statute, in part, requires an officer to successfully complete the program of The Indiana Law Enforcement Academy. Plaintiff has not attended the Academy and has therefore, not fulfilled a critical element of Indiana Code 18-3-l-16(d).

Plaintiff contends that he was not allowed to complete these requirements because he was dismissed before he was sent to the Academy. By this contention, plaintiff is implying that the Board had a duty to send him to the Academy; that is, that defendants had a duty to guarantee plaintiff an opportunity to fulfill the requirements of Indiana Code 18-3-l-16(d). This Court is unaware of any statute which requires a town or municipality to send a marshal or officer to the Academy. Without case or statutory support, this Court will not draw that inference.

Plaintiff cannot hold defendants liable for a violation of Indiana Code 18-1-11-3 because plaintiff did not meet the standards imposed by Indiana Code 18-3-1-16(d). Plaintiff served as Town Marshal for only six (6) months and did not attend the Law Enforcement Academy. Indiana Code 18-1-11-3 is, therefore, inapplicable to this case, and plaintiff cannot claim entitlement to the due process and equal protection guarantees of 18-1-11-3 as granted by Indiana Code 18-3-l-16(d). In an effort to counter this result, plaintiff asserts that defendants are estopped from bringing the defense of the inapplicability of Indiana Code 18-3-l-16(d) and Indiana Code 18 — 1— 11-3.

In order to sustain his contention that the theory of estoppel is relevant to this action, plaintiff must demonstrate his detrimental reliance upon the words or acts of the defendants. The court in Amendola v. Schliewe, Rude and Koessl, 732 F.2d 79, 85 (E.D.Wis.1984) summarized this requirement:

Equitable estoppel requires a showing that the party seeking estoppel relied to his detriment upon some intentionally misleading statement or conduct of the party to be estopped. Citation Cycle Co., Inc. v. Yorke, 693 F.2d 691, 695 (7th Cir.1982); Triple Interest, Inc. v. Motel 6, Inc., 414 F.Supp. 589, 595 (W.D.Wis. 1976).

Plaintiff, in his amended complaint, does not allege any facts which indicate that he relied to his detriment upon words or acts of the defendants. Without this factual allegation, plaintiff cannot maintain a defense of equitable estoppel. For the foregoing reasons, plaintiffs first argument does not support his cause of action.

Plaintiffs second argument centers upon his contention that he possessed a “property interest” in his position as Town Marshal which was protected by 42 U.S.C. § 1983. 42 U.S.C. § 1983 guarantees:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of The United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. (R.S. § 1979).

In the event plaintiffs allegations are true, this Court would properly have jurisdiction over the subject matter of this case. Therefore, in order to sustain his claim, plaintiff must show not only that he possessed a “property interest” in his position, but also that the Constitution and laws protected that property interest.

The standard which plaintiff must follow in order to establish a constitutionally protected property interest was set forth in Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 2077, 48 L.Ed.2d 684 (1976). The Bishop court, by reference to state law, concluded that a discharged policeman did not hold a property interest in his employment status which the Fourteenth Amendment would guarantee. In so holding, the Court stated:

A property interest in employment can, of course, be created by ordinance, or by an implied contract. In either case, however, the sufficiency of the claim of entitlement must be decided by reference to state law.

This standard places upon the plaintiff the additional burden of making his claim under well-defined Indiana law. Accord, Glenn v. Newman, 614 F.2d 467, 471 (5th Cir.1980); Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972).

In Sheridan v. Town of Merrillville, 428 N.E.2d 268, 270 (Ind.App.1981), the court determined that, according to the applicable Indiana statutes, a demoted police chief was not denied due process because demotion from rank as Chief of Police did not create a claim of entitlement under the Fourteenth Amendment. The court in Sheridan relied heavily on prior Indiana law when it stated:

Town of Speedway v. Harris, (1976) 169 Ind.App. 100, 346 N.E.2d 646, and its progeny, establish that where a statute or ordinance affirmatively creates an expectation that a particular employment will continue unless and until certain defined events occur, such interest is a property right which is protected by the due process clause of the Fourteenth Amendment to the Constitution of The United States. Such interest and claim of entitlement must be more than an abstract desire or unilateral expectation; the claimant must have a legitimate claim of entitlement.

Indiana law, therefore, requires plaintiff to demonstrate that he had a reasonable expectation that his employment would continue beyond the six (6) month probationary period. There are two main theories which this Court examined in making its determination of this issue. First, the Court re-examined the language of Indiana Code 18-3-l-16(d). Second, the Court considered the terms of the employment contract between plaintiff and defendant, The Board of Trustees of the Town of New Harmony. After thorough consideration, this Court has decided that plaintiff did not have a reasonable expectation of continued employment which would be sufficient to maintain his claim under 42 U.S.C. § 1983.

First, the language of Indiana Code 18 — 3—1—16(d) guarantees due process notice and hearing to a marshal or deputy marshal only after he/she has completed all the basic training requirements and has remained employed in that position for six (6) months after completion of those requirements. Plaintiff had not attended the Indiana Law Enforcement Academy and, therefore, was aware that he did not meet all the requirements of Indiana Code 18-3-l-16(d). Until plaintiff fulfilled all the conditions of Indiana Code 18 — 3—1—16(d), he served solely “during the pleasure of the Board.” Therefore, any expectation by plaintiff that his employment would be continued and/or protected by the Constitution could not be considered reasonable.

Second, plaintiff has alleged in Count Four of his amended complaint that a legal and binding contract existed between plaintiff and defendant, the Board. In Paragraph three (3) of Count Four, plaintiff details his understanding of that contract:

Under the terms and conditions of said contract of employment, after completion of the six (6) month probationary period and conditioned upon the satisfactory performance of his duties, the defendants were to retain the plaintiff as Town Marshal and send the plaintiff to the Police Academy for the required training period prior to the plaintiffs completion of one (1) year of employment.

By this statement, plaintiff is putting forth a breach of contract allegation. Plaintiff claims that he did perform his duties satisfactorily and defendants should, therefore, have fulfilled their obligations under the contract. Plaintiff contends he did, at that time, have a reasonable expectation in the continuation of his employment. While this may be true, and the Court will address that issue later, plaintiff has not pointed to an applicable statute or ordinance which created a reasonable expectation that his employment relationship would continue. Sheridan, 428 N.E.2d at 270 prescribes this showing of an existing, applicable ordinance or statute. See also Natural Resources Commission v. Sullivan, 428 N.E.2d 92, 97 (Ind.App.1981). (Court determined that demoted officer would have a sufficient property interest in his rank to invoke due process protections if he could point to “a state statute or administrative regulation which provided him with a ‘legitimate claim of entitlement’ to continued employment.”) Plaintiff’s interpretation of the existing contract alone is insufficient to establish a reasonable expectation of continued employment. Having failed to establish this reasonable expectation, plaintiff may not proceed upon the premise that he was denied an interest in property without due process or equal protection of the laws.

Were there language within an applicable statute or ordinance which limited the defendant, Board of Trustees’ discretion in discharging a marshal to “for cause” reasoning, plaintiff would conceivably have a valid due process claim. Natural Resources Commission, 428 N.E.2d at 98. (The court decided that the imposition of the “for cause” requirement upon the employment relationship invokes the constitutional due process requirement of notice and hearing). The relevant statute to this case, Indiana Code 18-3-l-16(d) expressly states that prior to certain defined events, a marshal serves solely “during the pleasure of the board.” There is no requirement that the Board discharge a marshal only “for cause”. Therefore, plaintiff may not invoke this Court’s jurisdiction on the ground that he was not discharged “for cause” and was denied due process. This Court, having considered the relevant theories, has determined that plaintiff has not established a claim under 42 U.S.C. § 1983.

COUNTS TWO AND THREE

In Count Two of his amended complaint, plaintiff alleges that defendant, Gary Watson, conspired with defendants Donald Hatfield and Ralph Hardy, members of the Board of Trustees, in an effort to aid defendants in violating their obligations under the existing contract between plaintiff and defendants. Plaintiff further alleges that as a result of this conspiracy, defendants breached plaintiffs employment contract.

Plaintiff does not bring this claim upon an independent basis of jurisdiction, but instead relies upon the constitutional and federal claims and violations alleged in Count One of his amended complaint. Notwithstanding the fact that a conspiracy claim is more properly brought under 42 U.S.C. § 1985, this Court still lacks jurisdiction to hear this claim. This Court has previously determined that plaintiff has not alleged a valid § 1983 claim nor a violation of any pertinent federal law. Without a valid federal claim, plaintiff may not invoke this Court’s jurisdiction under either 42 U.S.C. § 1983 or § 1985. Howard v. State Department of Highways of Colorado, 478 F.2d 581, 585 (10th Cir.1973).

In Count Three of his amended complaint, plaintiff alleges that defendant, Gary Watson, “intentionally interferred with the contractual relationship” existing between plaintiff and defendant, Board of Trustees. Plaintiff also charges that defendant, Watson, “intentionally induced” defendant, Board of Trustees to breach this contract.

As with Count Two, plaintiff relies solely upon his Count One constitutional and federal claims to invoke this Court’s jurisdiction over his claim of intentional interference and inducement. This jurisdictional foundation cannot support Count Three because this Court has already dismantled that foundation. As plaintiff has not alleged an independent, valid basis of jurisdiction, this Court must dismiss Counts Two and Three for lack of subject matter jurisdiction.

COUNT FOUR

Breach of contract is the theory upon which plaintiff bases Count Four of his amended complaint. As previously mentioned, this may be a valid claim, but this Court does not have jurisdiction to determine that issue. There is no valid allegation of jurisdiction within plaintiff’s amended complaint; plaintiff relies solely on his Count One constitutional and federal claims. Without a sound allegation of jurisdiction, Rule 12(h)(3) of the Federal Rules of Civil Procedure forces this Court to dismiss Count Four.

For all the above reasons and pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the defendants’ motion to dismiss this amended complaint is hereby GRANTED on the ground that this Court lacks subject matter jurisdiction. Due to this Order, the Court need not rule upon plaintiff’s motion to compel answers to interrogatories filed on August 18, 1983.