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Rush v. Perryman

July 17, 2007

DOUGLAS W. RUSH PLAINTIFF
v.
BARBARA PERRYMAN, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY, ET AL. DEFENDANTS



The opinion of the court was delivered by: Susan Webber Wright United States District Judge

ORDER

Plaintiff Douglas Rush ("Rush") brings this action under 42 U.S.C. § 1983 against Ozarka College, members of the Ozarka College Board of Trustees, and the Ozarka College Vice President of Finance. Rush sues the individual defendants in their individual and official capacities. In addition to claims for constitutional violations brought under § 1983, Rush pursues supplemental claims under state law. Before the Court is Defendants' motion to dismiss (docket entry #11)*fn1 and Rush's response in opposition (docket entry #14). After careful consideration, and for the reasons that follow, the motion to dismiss will be granted in part and denied in part. All claims will be dismissed, with the exception of Rush's free speech and due process claims for equitable relief under § 1983.

I.

In deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, all facts alleged in the complaint are assumed to be true. Doe v. Northwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir. 1997). The complaint must be reviewed in the light most favorable to the plaintiff, McMorrow v. Little, 109 F.3d 432, 434 (8th Cir. 1997), and should not be dismissed unless it is clear beyond doubt that the plaintiff can prove no set of facts thereunder which would entitle him or her to relief. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996).

The Court may grant a motion to dismiss on the basis of a dispositive issue of law.

Neitzke v. Williams, 490 U.S. 319, 326 (1989). However, a motion to dismiss is not a device for testing the truth of what is asserted or for determining whether the plaintiff has any evidence to back up what is in the complaint. ACLU Foundation v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991). The issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims. Id. See also Hickman v. Tosco Corp., 840 F.2d 564, 565 (8th Cir. 1988); Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). Thus, a motion to dismiss should be granted "as a practical matter . . . only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).

II.

Rush served as the president of Ozarka College from 1993 until 2005. In 2003, the college undertook to build an on-campus fitness center, and the Ozarka College Institutional Committee ("the Committee") supervised the project. The Committee was required to make purchases for the fitness center using a competitive sealed bidding process. However, in 2004, a legislative audit revealed that 2 purchases for fitness equipment were not obtained by competitive bidding as required by Arkansas law. The report stated, in part, that "reassignment of responsibilities . . . from the business office to a committee, contributed to the noncompliance." Docket entry #1, ¶ 11.

On November 10, 2004, Rush responded to the audit report by letter, stating that the Committee was aware of the purchasing procedures required under state law and that it was the intent of Ozarka College to comply with state law.

On May 26, 2005, the Ozarka College Board of Trustees ("the Board") convened for its annual meeting. At previous annual meetings, the Board's activities included completing Rush's annual performance evaluation and extending his employment contract for an additional year. However, no such action was taken at the 2005 meeting. Additionally, without announcing a reason, the Board called a closed executive session during the annual meeting.

On June 9, 2005, Rush provided testimony to the Arkansas Legislative Joint Auditing Committee on Educational Institutions regarding the aforementioned purchases for fitness equipment noted in the legislative audit report.

On June 13, 2005, the Board reconvened to complete its agenda from the May 26, 2005 annual meeting. The Board called an executive session and included Defendant Gayle Cooper, the college's vice president for finance, in the closed meeting. Rush alleges that Cooper gave a written statement to the Board in which he reported false information. Rush alleges: "[Cooper] erroneously stated that Mr. Rush had said the Committee was not going to follow state bidding procedures, that Cooper checked with Mr. Rush several times about Cooper's concerns that the equipment was not being purchased properly, and . . . that Mr. Rush had threatened that he would make Mr. Cooper look bad." Docket entry #1, ¶18.

On June 30, 2005, Defendant Perryman, a Board member, learned that Rush talked to reporters regarding the Board's "potentially illegal executive sessions." Id., ¶19. Perryman informed another Board member that she was upset about Rush's communication with reporters. Id.

On July 7, 2005, the Board terminated Rush's employment contract on the stated grounds of dishonesty, insubordination, failure to comply with state laws, and willful disregard of board policy. Id., ¶20. On August 24, 2005, Rush requested that the college reinstate him and provide him a name-clearing hearing. Rush's requests were denied.

Rush filed this action pursuant to 42 U.S.C. ยง 1983, naming Ozarka College, Cooper, and the Board members as defendants. Rush sues Cooper and the Board members in their individual and official capacities, alleging that they (1) retaliated against him for speech activities protected under the First Amendment and (2) deprived him of procedural due process and equal protection guaranteed under the Fourteenth Amendment. Rush also brings supplemental state law claims for breach of contract, defamation, tortious interference with contract, violation of the Arkansas Whistle-Blower Act, and violation of the Arkansas Freedom of Information Act. By way of relief, Rush seeks "any and all compensatory ...


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