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HARVEY v. WILLIAMS

February 10, 1988

Corliss Harvey, Plaintiff
v.
Howard Williams, Administrator of the Arkansas State Contractors Licensing Board, Individually and in his official capacity, and Arkansas State Contractors Licensing Board, Defendants



The opinion of the court was delivered by: WOODS

 Pending now is the motion for summary judgment of the defendants, Howard Williams individually and in his official capacity as Administrator of the Arkansas State Contractor's Licensing Board, and the Arkansas State Contractor's Licensing Board, an agency of the State of Arkansas. For the reasons that follow, the motion is granted in part and denied in part.

 I. Background

 The plaintiff, Corliss Harvey, was employed by the defendant Arkansas State Contractor's Licensing Board in February, 1980 as a clerk-typist. She was later promoted to the position of Assistant Administrator. She alleges in her complaint that she discussed with her superior, defendant Williams, a discrepancy between the percentage of her salary increase and that received by other employees of the Board. And, further, that Williams refused her request for a commensurate increase and instructed her to take the matter up with the members of the Board directly. She goes on to state that, in accord with Williams' instructions, she communicated her request directly to the Chairman of the Board, Sam Clark, but that upon learning of this communication Williams discharged her.

 Harvey brought suit under 42 U.S.C. §§ 1983 and 1985 alleging the discharge to be in retaliation for her exercise of her First Amendment right of free speech. She also brought suit directly under the Fourteenth Amendment alleging that her discharge constituted a deprivation of property without due process. In support of her claims she contends that her communication with Sam Clark was a constitutionally protected activity because it involved a matter of legitimate public concern. She further argues that at the time of her discharge she possessed a protected property interest in continued employment, and that she was therefore entitled to some form of due process.

 II. Discussion

 A. The Eleventh Amendment

 The first question the court must address is whether the Arkansas State Contractor's Licensing Board and Howard Williams, in his official capacity as Administrator of the Board, may remain as named defendants in this action. The court finds they may not.

 The duties and authority of the Arkansas State Contractor's Licensing Board, as set out in Ark. Stat. Ann. §§ 71-701 through 71-720, clearly indicate that the Board is but the alter ego of the State itself. It is a fundamental principle of constitutional law that, in the absence of consent, a federal court suit in which the State or one of its agencies or departments is named as the defendant is prohibited by the Eleventh Amendment. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 79 L. Ed. 2d 67, 104 S. Ct. 900 (1984). Also prohibited are "official capacity" suits which are, in all respects other than name, to be treated as suits against the particular entity of which the officer is an agent. Kentucky v. Graham, 473 U.S. 159, 165-66, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985) (noting the confusion between individual-and official-capacity suits). No argument has been made that the State of Arkansas has waived its Eleventh Amendment immunity.

 Although Congress has power with respect to rights guaranteed by the Fourteenth Amendment to abrogate a State's Eleventh Amendment immunity, that intent must be unequivocally expressed. Quern v. Jordan, 440 U.S. 332, 342, 59 L. Ed. 2d 358, 99 S. Ct. 1139 (1979); Pennhurst State School & Hospital v. Halderman, 465 U.S. at 99. The plaintiff's claims here are brought under 42 U.S.C. §§ 1983 and 1985 and directly under the Fourteenth Amendment. None of these bases for suit, however, contain a sufficient, unequivocal expression of Congressional intent to abrogate the State's Eleventh Amendment immunity. Quern, supra; Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) (§ 1983 not intended to abrogate Eleventh Amendment immunity); Monell v. New York Dept. of Social Services, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 n. 54 (1978) (§ 1983 liability is limited to local government units which are not considered part of the state for Eleventh Amendment purposes); Deretich v. Office of Administrative Hearings, 798 F.2d 1147, 1154 (8th Cir. 1986) (state agencies are not § 1983 persons).

 Accordingly, the court finds that the plaintiff's complaint against defendants Arkansas State Contractor's Licensing Board and Howard Williams, in his official capacity as Administrator of the Board, must be dismissed for lack of jurisdiction. The court now turns its attention to the plaintiff's claims as they remain against Howard Williams in his individual capacity.

 A suit challenging the constitutionality of a state official's actions, as an individual, is not a suit against the state, and the federal courts may award an injunction which covers the official's future conduct. *fn1" Pennhurst, 465 U.S. at 102. But, the Eleventh Amendment still prohibits an award of retroactive monetary relief if it is to be paid from the state treasury. Id. (citing Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908) and Edelman v. Jordan, supra). Therefore, the plaintiff's claim for an award of back pay, insofar as it would be paid from the state treasury, must be dismissed for lack of jurisdiction. To summarize, all claims against the Board and Williams in his official capacity are barred by the Eleventh Amendment. And, as to claims against ...


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