Uberoi v. University of Colorado

594-95, Here judgment directions to reinstate with actions, together parties’ taken with the trial court. intent, indi- the statements letters ERICKSON, J., specially concurs. a final contract had been reached cate that parties believed all essential and that J., DUBOFSKY, participate. does been terms had finalized. See contract ERICKSON, Justice, specially concur- Wheeler, P.2d Co. v. Federal Lumber ring: (Colo.1981). majority opinion. I concur with leased the certifi- Rocky Mountain PUC However, I that the “Letter do not believe conveyance necessity cation of “Modi- Agreement” Intent and and later per The PUC from I.M.A. for month. $500 jury fication and Amendment” created gave emergency temporary approval for be- question on a contract existed whether lease, Rocky began Mountain then Rocky Air- Mountain tween I.M.A. Durango. Denver air between service view, ways. the conduct of both my to renegotiate I.M.A. action also took exchange of the parties subsequent to the landing Durango airport at the and to lease provided evidence create a letters approval agree- obtain shareholder jury’s finding. support jury issue and Rocky Finally, ment Mountain. express specially my view I concur fur- Rocky moved I.M.A.’s office Mountain opinion. II Part of the court’s equipment Rocky niture into Moun- hangar tain in Denver. majority opinion demonstrates Rocky from Mountain to the two letters beyond yet had advanced

I.M.A. forming agree-

negotiation stage in under-

ment. The first letter stated: “It is Agree- of Intent and

stood that this Letter nature, preliminary and that party toward more defini-

each will work agree- the execution of tive statements and UBEROI, S. Mahinder contracts, that ments and resolutions and Plaintiff-Appellant, required the overall to consummate agreement let- purposes this intent ter.” letter also said the contract COLORADO, a State OF UNIVERSITY “contingent upon satisfaction” of five Institution, McInerny, Joe William (see majority opin- major “contingencies” Arai, Roy, Holloway, Gary Rich John ion, 885-886). In view of ex- these Tharp, Defendants-Appellees. ard statements, is clear that the two plicit No. 84SA9. negoti- preliminary part letters not, apart Supreme Court parties and do ation between the En Banc. parties, and conduct action contract. See establish existence Jan. Bernstein, 348 Canning Ellis Co. 24,1986. Rehearing Denied Feb. (D.Colo.1972); F.Supp. 1212 D.A.C. Ura- Benton, nium Co. v.

(D.Colo.1956).

It is basic law evidence contract clarify the intent or

tending explain show parties is admissible to as writing assented to been expression agreement. final of their Fulenwider, Inc., 146 Colo.

Miller L.C.

See also P.2d 785. Uberoi, pro S.

Mahinder se. P.C., Rau, Cooper Kelley, & Gretchen C. Denver, Ayres, Ted D. defendants-ap- pellees.

NEIGHBORS, Justice. Uberoi, plaintiff, appeals Mahinder judgment County from the of the Boulder dismissing District Court1 the claims for assault, slander, arrest, battery, false civil violations, negligence, conspir- civil acy, denial of due asserted University of Colorado and employees.2 some trial gave First, reasons for three its decision. University because the and the Act, 24-10-109, accept jurisdiction Immunity required 1. We over mental C.R.S. appeal in this case 13-4- section 102(l)(b), 6 C.R.S. because the challenged constitutionality the no- 2. AH of Uberoi’s tort claims are based on com- tice under the Colorado Govern- torts. mon law University at all times material Regents of the of Colorado complaint. Im- covered the Colorado Governmental (Act),3 give munity Uberoi’s failure to Act arose out events which barred required the notice under the Act date, May 1982. On occurred Second, since the word his tort claims. went to the office of the defendant does “persons” in 42 U.S.C. Mclnerny on the of Col- William con- or override traditional include states Boulder, campus requested orado at and sovereign immunity, cepts of state which he claimed were obtainable records event, and, provides no relief Open Act.5 under the Records Colorado proscribed plain- eleventh amendment sought plaintiff The records the were those Third, university. against tiffs claims to pertaining the Joint Institute for Labo- complaint alleges because Uberoi’s ratory Physics. Mclnerny Astro his and torts, for it does claims common law give atten- staff did Uberoi immediate relief 42 U.S.C. state a claim for minutes, After tion. about fifteen Uberoi 1983. long how would before he asked take dismissal request- We affirm the trial court’s receive would the records had of his during the tort claims and the dismissal A ed. confrontation ensued names, defendants alleges Mclnerny 1983 claim him U.S.C. Uberoi called him, due deprived right against him of negligently his an door and slammed office pushed the fourteenth amend- repeatedly University law under him. of Colo- (1) Roy that: The eleventh and Department ment. We hold rado Police Officers (2) case; inapplicable to this amendment Arai were summoned and arrested Uberoi person probable grabbed is a under U.S.C. without cause. Arai 1983; (3) claims warning. and certain Uberoi's Uberoi informed Uberoi without complaint adequately state professor in his Arai that he was a at the univer- Therefore, sity visiting claims Mclner- and his dismissing order those ny’s kept we reverse the office Arai Uberoi was lawful. directions. custody any purpose probable claims and remand with without approximately one-half hour. cause I. that, while the inci- Uberoi later learned us to the trial This case is before review Roy Mclnerny progress, was in and dent judgment granting the defendants’ court’s de- telephone conversations with the had C.R. motion to dismiss Holloway, attorney for the John an fendant Therefore, appropriate we deem it C.P. conversations, university. During these allegations summarize Uberoi’s factual conspired keep Uberoi these defendants com- legal in his and theories contained probable and to ob- confined without cause plaint.4 prejudicial to from tain statements Uberoi Roy, allegations Mclnemy’s The defendants plaintiff’s staff. We first outline the Arai, Holloway conspired, Mclnerny, fact. a resident of the State Uberoi is cause, maliciously probable Each and without States citizen. Colorado and a United 18-9-109, agent, violating section cite Uberoi for defendants is an individual interference with officer, University of C.R.S. intentional employee in his On information and being activities. each sued Colorado and belief, acting that the defendants agent as Uberoi claims capacity individual an Tharp, at- Holloway Richard another scope duties on behalf within Arnold, -118, E.g., (1982 pleaded are true. Bell v. & 1985 the facts 10 C.R.S. §§ 24-10-102 (1971); & Colo. P.2d 545 Denver Supp.). Wood, Colo.App. R.G.W.R.R. v. ruling fail- a motion to dismiss for 4. When claim, appellate ure to both trial -206, (1982 light 10 C.R.S. & 1985 24-72-201 to 5.§§ courts must construe Supp.). assuming plaintiff by to the most favorable torney university, engaged complaint for the in a “are second with the district court continuing conspiracy to frame into un- time, and, this served the defendants. plaintiffs lawful requests acts lawful raises ap- number of issues on inspection records.” However, peal. the resolution of the fol- Uberoi’s issue sets here lowing principal disposes four issues of all forth eleven claims for relief. In his first arguments: (1) pertinent Whether the claim, Mclnerny Uberoi states that slan- Act, Immunity Governmental dered him. His second claim is -118, (1982 24-10-101 to 10 C.R.S. & §§ Mclnerny pleads the tort of assault. applies Supp.), University claim, against Mclnerny, third al- Colorado; whether the eleventh amend- leges battery. tort of his fourth bars bringing suit claim, Uberoi asserts that Arai assaulted of Colorado under him. The fifth claim the tort of 1983; (3) 42 U.S.C. Universi- battery against Arai. Officers Arai ty of is “person” under 42 Roy charged with false arrest in Uber- 1983; (4) U.S.C. and whether the oi’s § sixth claim. The seventh claim sufficiently pleaded alleges deprived relief the a claim for relief that defendants rights, privileges, Uberoi of his and immu- 42 1983 to U.S.C. withstand the defend- § first, fourth, him by nities secured to the ants’ motion to dismiss for failure to state tenth, fifth, ninth, and fourteenth amend- upon may granted. claim which relief Constitution, ments to the States United Colorado, of the Constitution State of II. and 42 eighth U.S.C. The claim generally alleges that the was Uberoi contends that Govern negligent selecting, appointing, training, in Immunity apply mental Act does not to the supervising, retaining and/or the individual regents. or its board of The Negligence defendants. is also the basis argument his thrust of is that universi Uberoi’s ninth claim for relief. claim That ty “public entity” is not a within mean incorporates by reference claim the seventh ing argument. Act. reject of the We Mclnerny negligent and that was portion pertinent sec- failing comply requirements with the tion in the Act states: Open Act. Records Uberoi also asserts negligent state, that the when recognized defendants It is further its they failed to ascertain that he was subdivisions, political public em- any activity, negligent involved in unlawful entities, by ployees such virtue arrested, in the manner in which he was provided, services and functions negligent using inappropriate force exercised, powers conse- during the arrest. tenth claim quences gov- to the unlimited con- states that defendants have process ernmental should liable for him spired deprive of his constitutional agents their their actions and those of rights. Finally, eleventh claim subject such an only to extent and relief, alleges the con- Uberoi defendants’ provided by such as are conditions deprived duct him of due of law article. under the fourteenth amendment 24-10-102, (1982) (emphasis 10 C.R.S. two United States The last Constitution. added). “public entity” The Act as: defines incorporate claims also reference state, seventh relief. county, county, claim for city incor- district, city town, spe- porated school complaint Boul- Uberoi first filed district, improvement every oth- cial July He der District on did Court district, agency, instrumentali- er kind on copy not serve a ty, political subdivision the state Approximately ten the defendants. 9, 1983, later, May organized to law. months Uberoi 482, 484-85, P.2d More- 189 Colo. 24-10-103(5), 10 C.R.S. (1975). Accordingly, that the uni- over, “university” specifically we hold the word “public governing Act: board are versity and its mentioned meaning of the Act. entities” within be com- the state A and on behalf of or settled for promised argues that our decision Uber attorney general, with the state University P.2d 785 oi v. the affect- of the head of the concurrence (Colo.1984), holding here precludes a board, commis- agency, department, ed university. We dis applies to the the ACt univer- institution, college, sion, hospital, agree. instrumentality thereof. sity, or other before us was case the issue 24-10-112(1), (emphasis 10 C.R.S. Act, not the Open Records added). Act, applica- Immunity Governmental established University of Colorado university. While we held that ble to the of constitu- by combination governed apply to the Open Records Act did not provisions. The uni- statutory tional and that “the act no- university, we observed institution of as a state versity is created specifically refers to the where by the Colorado Constitu- higher education in- governing bodies of educational nor to Const, VIII, 5(1). Sim- art. tion. Colo. every general It is in sense stitutions. re- the board of ilarly, “body politic,” Here, As- law.” Id. at 788. the General university, is established gents of the sembly included in the Governmental Const, IX, art. Colo. the constitution. Immunity specific reference to “uni- Act a Fraternity Regents Sigma also Chi governing “board.” versity” and to its University of (1982). 24-10-112(1), 10 C.R.S. (D.Colo.1966). The constitution governing boards provides that “[t]he Next, argu address Uberoi’s we education, higher institutions of the state applies if Act to universi ment that by this constitution established complied with the notice re ty, he then supervision law, general have the by shall 24-10-109, 10 C.R.S. quirements of section the ex- respective institutions and their (1982). his'position is conclude that We of all funds of and direction clusive control merit. without respective insti- appropriations to their 24-10-109, (1982), re- 10 C.R.S. Section tutions, provided by law.” otherwise unless suf- anyone who claims to have quires that Const, 5(2). VIII, 23- Section art. Colo. public entity or injury caused fered an (1973 Supp.), 20-111, con- C.R.S. & acting scope within employees its while supervi- regents “general fers on employment: of their control and di- sion of the within one appropriations [Fjile to a written notice ... of and rection of all funds discovery general powers days to eighty after university....” hundred granted compliance to the university are govern injury. Substantial 23-20-112, 9 C.R.S. regents by provisions section of this section the notice with enact regents shall (1973): precedent any board to shall be a condition “[t]he universi- of the government provisions laws for brought under the action statu- Additionally, various other ty_” article, of substantial and failure powers and re- tory provisions detail complete defense compliance shall be 23-20-101 board. sponsibilities of the §§ any such action. (1973 Supp.). We -135, & 1983 C.R.S. these constitutional recognized that have an against the state or If the claim dis- grant “broad statutory provisions thereof, the notice shall be employee governing regents as a cretion to the attorney general. If the presented to the “specific body in that and create board” any public entity against other claim is operate the uni- powers” particular thereof, the notice shall employee Regents, an Students Associated versity. presented governing body requirement notice of the rationally Act public entity attorney repre- or the legitimate furthered state interests. We senting public entity. also held that of the notice requirement “prompt is to foster investiga- Id. (emphasis added). argues fresh; tion while the evidence is still repair original complaint July con- condition; any dangerous quick and am- compliance stitutes substantial with the no- claims; icable settlement of meritorious requirements. tice original While Uberoi’s preparation planning of fiscal to meet complaint contained many statutory Fritz, any possible liability.” Colo., requirements, citing Antonopoulos, P.2d at pro- with Boulder District Court. He 187 Colo. 532 P.2d 346 no notice With vided of his claim whatsoever to entities,” respect “public we either the stated that or the individual de- 24-10-118, the notice is to aid the fendants. Section state or C.R.S. assessing (1982), imposes requirements liability arising subdivisions the notice 24-10-109, governmental Id. activities. contained section C.R.S. involving on suits public employees, reasons, For these we affirm the district (a) Filing required by of the notice sec- ruling dismissing first, court’s Uberoi’s sec- public entity, tion 24-10-109 with the ond, third, fifth, fourth, sixth, eighth provided form and within the time against claims for relief all defendants.6 24-10-109, be a section shall condition any precedent against such action III. public employee, and failure of substan- challenges Uberoi next the district compliance complete tial shall be de- ruling court’s that the eleventh amendment fense such action his suit the university. barred Af employee. raising ter the issue of whether the univer 24-10-118, (1982) (emphasis 10 C.R.S. sity “person” was a the trial added). Therefore, provision the notice dispensed question rul applied the Act to the individual de- ing that Uberoi’s 1983 suit could not be fendants. maintained the because of eleventh amend Finally, require- Uberoi claims the notice agree We ment. with Uberoi’s contention imposed by ment the Act is unconstitution- hold that the eleventh is amendment guarantee it al because denies him his claims, inapplicable to 1983 which § equal protection of the law. His claim of initiated in rather than in feder unconstitutionality premised argu- is on the court. al persons damaged by ment that a tort com- The eleventh amendment states: by public entity give mitted notice judicial of power the United States entity damaged persons by to that while any shall not be construed to extend to by private per- similar conduct committed equity suit in law or pros- commenced or required give notice son are against ecuted one United States alleged rejected a tortfeasor. We similar state, by by citizens of another or citi- Regents Fritz v. the Uni- argument subjects any foreign zens or state. versity Colo. 196 586 Antonopoulos (1978); v. Town The eleventh amendment is a jurisdictional 23 P.2d Telluride, generally Nowak, 187 532 P.2d Colo. 346 amendment. J. R. (1975). Young, In both held that Rotunda Constitutional Law cases we the & J. relying (Colo.1984), district court on the that "a erred in Act we held is not required complaint repeat- when dismissed Uberoi’s ninth claim for re- to file an amended eighth ing allegations missed, Unlike the for lief. negligence, common law contained in claims later dis- incorporates by incorporated by ninth claim ref- when the claims was based erence alleged seventh claim which reference Accordingly, a claim not dismissed.” Id. at 942. Hadley 42 U.S.C. violations. In Uberoi’s ninth claim must be § 1983 eval- RE-1, County § under 42 School District uated U.S.C. Moffat (2d ed.1983). person jurisdic- jurisdic States or other within the It bars federal 52-61 such, any governments, deprivation as when tion thereof tion over state they by rights, privileges, than the or secured anyone are sued other immunities laws, In government or another state. shall be federal Constitution and Thiboutot, 1, n. Maine in an party injured 448 U.S. liable action at (1980), law, equity, proper pro- n. L.Ed.2d S.Ct. suit in or other ceeding Eleventh Amend purposes Court stated redress. For the “[n]o course, question present, where section, ment Congress applica- Act of brought in a state court since an action is exclusively to District of ble Colum- Amendment, terms, restrains its shall considered to be a bia statute power Judicial the United the District of Columbia. ‘[t]he ” held in Additionally the Court States.’ added). (emphasis Of 42 U.S.C. Treasure Department Florida State v. principal import to is the this issue Court’s Salvors, Inc., 3304,4 S.Ct. U.S. v. Department decision in Social (1982), that amend L.Ed.2d York, City New Services of 436 U.S. by implication also bars suits feder 658, 98 L.Ed.2d 611 S.Ct. state. al court citizens of the defendant governing there local The Court held in Penn recently, More the Court held directly bodies can be sued Hospital v. Halder hurst School & State monetary, declaratory, injunctive man, 89,104 900, 79 L.Ed.2d where the action those situations im eleventh amendment imple- that is to be unconstitutional from munizes state officers fed statement, ordi- ments executes pendent to a eral on state claims nance, officially regulation, or decision officer, if 1983 action even adopted promulgated by those whose and the has violated state law officer repre- fairly or acts be said to edicts jurisdiction federal court over addition, policy. official local sent 1983 claim. “per- governments, every like other Here, brought suit son," may depri- be sued constitutional court, not court.7 university in state federal resulting governmental “cus- vations inappli- simply amendment is eleventh tom,” though such custom has not even initiated in state court. cable to suits approval through formal received decision-making government’s official chan- IV. Monell did though Id. nels. Even is not the eleventh amendment Since question wheth- specifically address the suit, now address the a bar we to Uberoi’s “person” er a state is a question of whether reasoning logically requires us provides: “person" under § university is a that a state to conclude meaning who, any “person” of 1983. Every person under color of within announced, custom, juris- Since ordinance, or was other statute, regulation, Territory dictions have relied on its rationale usage, or of State Columbia, university “person” a to be a subjects, or causes have declared of District v. 1983.8 See Walsh Louisiana of within subjected, any to citizen the United be Monell, jurisdiction to to Prior courts were divided as have 8. State courts concurrent 7. person a under was brought U.S.C. claims under 42 entertain held that universi 1, 1983. Some of those that Thiboutot, v. U.S. 100 Maine 448 § 1983. Regents ty person was were the Univ. 2502, (1980); v. of of S.Ct. 65 L.Ed.2d 555 Martinez Ass’n, Collegiate 560 v. Nat'l Athletic Minnesota 553, 277, California, 62 100 S.Ct. 444 U.S. cert, 978, dismissed, Cir.), (8th F.2d 352 434 U.S. (1980). The courts of L.Ed.2d 481 (1977); v. S.Ct. L.Ed.2d 472 Prostrollo 98 54 statutory jurisdiction accepted of this have Cir.), Dakota, (8th F.2d Univ. 507 952, 775 South of O'Dell, P.2d Espinoza v. 633 cause of action. cert, denied, 44 421 U.S. 95 S.Ct. (Colo.1981). 455 (1974); v. Univ. L.Ed.2d Blanton State 106 of Cir.1973); York, (2d Student New F.2d 377 489

901 Association, High School Athletic 616 Consciousness, Krishna liberally. strued (5th Cir.1980) (while F.2d 152 Jones, 368; associa- Morrison v. 607 F.2d cert, tion agency was neither an of (9th Louisiana denied, Cir.1979), 1269 445 U.S. provided law, nor for under Louisiana 64 L.Ed.2d 237 court person held that was suable as a pertinent portions of Uberoi’s com- 1983); Gay Student under Services plaint dealing with his 1983 claims state: Texas University, A M & F.2d Paragraphs 1 through 49 are in- cert, denied, Cir.), 101 S.Ct. corporated by herein reference. (1980) (state L.Ed.2d 495 51. During all times mentioned in this “person” purposes of this sec- Complaint, all Defendants acted under tion); Michigan Weisbord v. State Univer- pretense law, color and wit, sity, F.Supp. (D.Mich.1980) (state statutes, ordinances, regulations, cus- university, presi- its board of trustees and usages toms and of the State of Colorado “persons” dent meaning within and the a State section); Johnson v. San Jacinto Jr. institution. College, (D.Tex.1980) (Jun- college “person” ior During within the all times mean- mentioned here- section); ing in, Defendants, Aumiller Universi- of this acting while Delaware, ty F.Supp. 1273, deprived color law Plaintiff of (D.Del.1977) (“University ... and liberties could secured to him purposes treated States, person as a of actions the Constitution the United brought 1983].”). including: [§ a) right liberty; V. b) right law; to due Finally, argues the district c) right physical to freedom from when it erred dismissed his abuse, intimidation; coercion and claims upon for failure to state a claim d) right person secure in his granted. which relief can be With ex- seizure; and effects from unreasonable ception of his ninth claim which includes negligent deprivation e) right freedom from unlawful process rights, due agree we with Uberoi’s interference arrest. contention. having engaged 53. The Defendants To state a claim for relief under § described, illegal conduct herein (1) allege only the claimant need that some Plaintiff, injury deprived Plaintiff person deprived complainant right, of a rights, privileges of his and immunities privilege, immunity secured the fed First, Fourth, secured to him constitution; person eral that such Fifth, Ninth, Tenth and Fourteenth acted Parratt under color state law. Amendments to the United States Consti- Taylor, U.S. 101 S.Ct. tution, the Constitution of State Society (1981); International L.Ed.2d 420 Colorado, and 42 U.S.C. 1983. Consciousness, Inc. Krishna v. Colo Exposition rado State Fair & action, As Industrial a sole result of said

Commission, (Colo.1983). severely injured physically P.2d 368 It Plaintiff was complaints is also well-settled that and suffered severe mental and emotion- Rights disgress, suffering. Act are to pain Civil be con- al [sic] Serv., (D.Miss.1976); Gay Rights Peay F.Supp. Gay Coalition v. Austin State 424 1242 Lib. for Univ., (D.Tenn.1979); F.Supp. Missouri, (1976), F.Supp. M77 1267 v. v. 416 Gross Univ. 1350 Tennessee, 245, (8th F.Supp. aff'd, grounds, Univ. 448 620 rev’d on other 558 F.2d 848 Cir. cert, Cir.1978); 1080, 1977), denied, F.2d 109 v. Schare State Univ. U.S. S.Ct. 434 98 Brook, (D.N. (1978); Stony F.Supp. College New York at 437 969 55 L.Ed.2d 789 Dennis v. Y.1977); Islands, (D.V.I.1975); F.Supp. Virgin Escobar v. State New Univ. York 1317 Wood, College (D.N. Westbury, rehearing, at Old v. Brown 575 P.2d Y.1977); (Alaska 1979). Mississippi Co-op. v. Wade Extension may to the consti- injuries, a care violate amendments As sole result of said 55. process in damages has suffered other than the due clause actual tution $100,000.00 special the amount amendment consistent the fourteenth $25,000.00. Parratt, in damages the amount of in decision Court’s L.Ed.2d 420 S.Ct. U.S. added.) (Emphasis (1981). There, implied Court that university argues that Uberoi’s alle- in analysis employed case process that due pleading re- gations do meet either involving viola- inapplicable to cases was begin our quirement We consideration eight tions of first amendments. deciding argument by first whether at 101 S.Ct. at 1913. U.S. pleaded he de- sufficiently that - — Davidson, -, n. U.S. right, immunity privilege, a or prived of (Blackmun, J., 674 n. 6 dissent- S.Ct. of the by the or laws secured constitution (“the negli- recognized ing) Court has that United States. gent other constitu- behavior violate amendments”). addition, A. tional In both in- Daniels Davidson make clear that complaint alleges deprivations Uberoi’s tentional conduct remains actionable under by guaranteed constitutional — Daniels, at-n. U.S. ninth, tenth, first, fourth, fifth, — 3; Davidson, 667 n. at S.Ct. at U.S. Recently, amendments. the Su- fourteenth -, Moreover, at 672. Williams, Court held Daniels preme — in Daniels specifically in Court declined -, 662, 88 L.Ed.2d U.S. 106 S.Ct. something less inten- Cannon, decide whether than -(1986),9 Davidson and in — conduct, or tional such as recklessness -, 668, 88 106 S.Ct. L.Ed.2d U.S. gross negligence, trigger is sufficient -(1986),10 protections afforded process protections of the due clause. by clause of the fourteenth due — Daniels, at-n. 106 S.Ct. amendment, procedural or U.S. sub- stantive, lack of due 667 n. implicated by are not a part pris- on prison

care inmates for tenth, seventh, elev Uberoi’s Parratt on officials. The Court overruled denominated as enth claims for 1908, 68 Taylor, 101 S.Ct. and, in considered 1983 claims when that Par- (1981), to the L.Ed.2d 420 extent allege complaint, that context by a ratt holds negligent that conduct deliberate, conduct was defendants’ life, may “deprive” an official individual and, amounting possi torts to intentional liberty, property under the fourteenth — negligence. bly, gross recklessness Daniels, at-, amendment. U.S. Thus, pa within the these fall Court, however, did “not S.Ct. at 666. The foregoing principles rameters possibility that there are other rule out adequately for relief. How state claims provisions would be vio- constitutional ever, incorporates by ninth hold, Uberoi’s claim by mere care in order lated lack of (seventh 1983 claim do, reference his impli- as we that such conduct does relief) violations of the Due Clause of the Four- cate the Process — fourth, amendments, first, fifth, and Daniels, tenth U.S. at teenth Amendment.” -, the fourteenth amendment. lack of due addition to 106 S.Ct. at 667. That the Daniels, damages injuries pris- prisoner brought sustained because In suit federal er 1983, seeking negligent protecting him court under recover officials were district on injuries slipped damages he prisoner sustained when had sent from another inmate. The negligently left pillow claimed was prison report- on he superintendent note ing stairway by deputy jail sta- a correctional he another had been threatened facility which was incarcerat- tioned at the prison No action was taken inmate. officials, ed. days prisoner was two later other inmate and with a fork attacked seriously Davidson, brought prisoner suit feder- 10. injured. 1983, seeking to al court under recov- district Therefore, In rule presented order to on the issues cance. we hold that Uberoi’s claim, therefore, Uberoi’s ninth must complaint, except we allegations for the light specific evaluate that claim in negligence under the fourteenth amend- allegations concerning negligence and claim, sufficiently his ninth relating those to other conduct. Consistent alleges deprivation prong under the first discussion, foregoing with our we conclude of the test. negli- that to the extent the claim

gent process violation of the due clause B. amendment, the fourteenth claim be factor, dismissed. As Daniels Davidson second whether the clearly negligent activity hold that employees does university, regents implicate process concerns the due university the university itself clause of fourteenth amendment. “acting law,” were under color of state we However, to the extent that ninth Uberoi’s begin by noting that while the university alleges gross claim negligence, reckless- may sued be under it does not ness, or intentional under the due conduct necessarily follow that it is liable under process clause the fourteenth amend- statute all of actions taken ment; and to the that his claim extent employees. Monell, In the Court held negligence asserts under amendments language legislative history the constitution other the fourteenth than compel the conclusion that Con- clause, amendment’s due claim gress government did not intend a local may be maintained. be held liable conduct unless which was government cogni- accord with official urges to take us particular zance of the fact that was caused In Uberoi’s lawsuit constitutional tort. attempt municipality as a result to enforce the Court concluded mistakenly what he law- believed to be his cannot held solely liable because em- right inspect ful ac- “public records on Monell, ploys a tortfeasor. 436 U.S. at pur- counts entitled JILA administration” Here, Mclnerny S.Ct. at -206, suant 24-72-201 to to sections an worker. office Uberoi bases his (1973). C.R.S. See Uberoi v. against Mclnerny on conduct he However, 686 P.2d 785 slander, assault, claims constitutes and bat- question we fundamental tery. ruling Without on the merits of presented sufficiency involves the claim, unlikely Uberoi’s it is that Mclner- Therefore, complaint. possi- Uberoi’s ny’s right included force duties to use ble motivation immaterial to that deter- Thus, persons. or slander express opinion mination. We no on could be held under the rationale liable merits of Whether Uberoi’s claims. there Monell, U.S. at 98 S.Ct. at plain- sufficient evidence to establish the Mclnerny, In campus peace contrast to of- tiff’s claim that the defendants’ conduct authorized, Roy likely ficers and Arai are rises level of a tort constitutional circumstances, under certain to use some is an which cannot be issue degree physical discharging force in dis- resolved in the context of a motion to If, alleged, their duties. as their actions claim. miss for failure to state a Our university policy to official concern is con- tort, caused constitutional sufficiently tained in Uberoi’s could recover 1983 claims satisfy requirements necessary to university. the officers and maintain a 1983 cause of action. See supra note VI. Here, al- complaint sets forth Uberoi’s conclusion, which, hold that we the Universi-

leged deprivations proven if “public ty entity” sufficiently na- is a shown to of a serious that, ture, Immunity signifi- be of Act and would constitutional Governmental Slidell, (5th City v. 728 F.2d 762 nett comply with the notice failed to denied, reh’g (en banc), and, therefore, Cir.) 735 F.2d 861 act, requirements of that Cir.1984). Because is the official of his tort claims the court’s dismissal trial that governmental policy custom consti- the next hold that elev- proper. We body’s governing of the tutes the basis apply not to Uberoi’s enth amendment does existence liability, general the charac- amendment claims because that § must al- policy ter that or custom be jurisdictional it-prohibits in citizens that complaint. leged plain- the in in federal bringing § suit states allege any complaint tiff in his failed to suit in state initiated the courts. Uberoi university policy or custom which cáused or court, also not federal court. We hold allegedly unconstitutional “person” under resulted is a § underlying conduct 1983 claim. alleged consti- Finally, § we hold that Uberoi university was there- to state a deprivations sufficient tutional properly fore dismissed for failure to state relief under claim for granted. upon relief a claim could be Accordingly, judgment trial court’s through first dismissing plaintiff’s ROVIRA, Justice, part concurring in sixth, eighth relief is af- claims for dissenting in part: ruling dismissing The trial court’s firmed. af- ninth claim for plaintiff’s disagree part V majority I with firmed, only to extent but opinion in holding that trial court erred of the due claim violations ninth dismissing Uberoi’s U.S.C. the fourteenth amend- clause of against the As the Colorado. negligence. trial ment based on out, correctly points majority conclu- dismissing plaintiff’s sev- court’s order Department sion Monell v. Social in claims, tenth, enth, as well as and eleventh York, City Services New 436 U.S. in remaining allegations made the ninth 2018, (1978), 56 L.Ed.2d 611 98 S.Ct. claim, and the is remanded is reversed case governments, every like other that “local with rein- district court directions to ‘person,’ may be sued constitu- those claims. state govern- deprivations resulting from tional ‘custom’,” has been extended to a mental C.J., QUINN, part in and dis- concurs 900-901, Majority op. at university. part. in sents However, therein. cases cited that, ROVIRA, J., “Congress dissents Monell part also added did concurs be held liable un- municipalities part. intend municipal less action official C.J., QUINN, joins the concurrence policy of some sort caused constitutional and dissent. 98 S.Ct. at 2036 tort.” U.S. Justice, concurring part QUINN, Chief Gay see Student added); (emphasis dissenting part: University, A & M Services Texas Cir.1980) (“Of course, 160,164 (5th partial dissent of Justice Rovira F.2d join I opin- suable under V of the court’s be respect to Part policy injury must due to an official Department So- Under ion. cert, denied, York, custom.”), City New cial Services (1980). Thus, 66 L.Ed.2d 495 L.Ed.2d 611 S.Ct. U.S. discriminatory policy is a or custom body, such as since governing a local government local subject university, may 1983 liabili- plaintiff’s complaint respondeat supe- theory ty, injuries re- allege were the rior, gov- official on the basis of some but governmental policy or cus- in a such a that results sult of ernmental or.custom Incorporated Zanghi Village rights, privi- tom. of constitutional deprivation Brookville, 752 F.2d (2d Ben- Cir. generally Old immunities. leges, or 1985). In Zanghi, the Second Circuit af- dismiss); cient survive motion to Mui v. against Dietz, firmed dismissal of 485, a 1983 action F.Supp. (N.D.Ill.1983) (claim municipality a for failure to state a claim dismissed where no facts to grounds allegation customs); that an limited to support Durkin v. asserted negligence permitting in Township, Bristol the con- 613, (E.D. “[m]ere F.R.D. employment personnel Pa.1980) tinued of ... does (conclusory allegation of official not rise to the level of ‘action policy to insufficient to meet the ” municipal policy official particularized of some nature.’ pleading fact in civil Id.; Alabama, Slay see v. State cases); Geist, Bready v. 83 F.R.D. (5th Cir.1981); Glaros v. F.2d (E.D.Pa.1979) (claim against de Perse, (1st Cir.1980). 628 F.2d 679 township fendant dismissed where conclu sory allegations impossible made it to de conclusory allegation A of a discriminato- precise termine the nature of the custom or ry policy custom or is not sufficient to meet policy which may produced have the al pleading requirement. Plaintiff must leged deprivation); Snyder, Luera v. cf which, also set forth factual if F.Supp. (D.Colo.1984) true, would establish the existence of such (granting a directed verdict for defendant City Strauss v. policy a or custom. city plaintiff presented where no evidence Chicago, F.2d 766-67 Cir. discriminatory city a policy). Strauss, 1985). In the Seventh dis- Circuit This additional pleading requirement a against City missed 1983 claim maintaining against a 1983 action Chicago claim, gov- a despite for failure to state a entity ernmental entirely consistent complaint alleged the fact that the that an holding both our International in Society arresting plaintiff pursu- officer struck the Krishna Consciousness v. police department’s ant to the “custom and Fair, State (Colo.1983), 673 P.2d 368 practice” hiring history officers with a the Colorado Rules of Civil Procedure. brutality, brutality investigative in Consciousness, Krishna we held procedures, prisoners’ that: violation of civil rights, exonerating and of officers for such To state a claim for relief under section Id. Strauss court held wrongdoing. complainant allege (1) a need that: person deprived that some complainant right, privilege of a immunity policy secured

The existence of a that caused a constitution; the federal plaintiff’s that injury part is an essential person such acted under color of state liability, Section 1983 so that some fact Toledo, law. Gomez v. indicating the existence of some such (1980).... 64 L.Ed.2d 572 policy pled. must be Without some evi- apart dence employ- the fact of 673 P.2d at 373. ment, regardless slight, a how that Neither Krishna Consciousness nor Go- causing plaintiff’s exist, injury might mez considered the question governmen- plaintiff simply proceed in cannot under Monell. tal authorized municipality.... Rather, limiting in pleading require- ment for govern- 1983 claims a imply plain- We do not mean to that a official, Court, in Go- Supreme detail, plead greater tiff must but mez, simply reversed a lower court dismis- merely plaintiff plead must some failing allege sal for to the actions tending support fact or facts to his alle- complained faith, of were committed bad gation municipal policy that a exists that ground good on the that since faith is injury.... could have caused his merely possible defense, affirmative pleaded by plaintiff: need not be absence City 760 F.2d at 769. See also Silo v. Philadelphia, (E.D. Nothing language legislative in the Pa.1984) (conclusory allegation history 1983, however, of policy suggests to of § prisoner pro se petitions mishandle brought against insuffi an action position him otherwise might whose entitle To allow would be tantamount official faith, respon- immunity good allowing if he suit to acted be filed on superior plaintiff allege must bad faith order deat Plaintiffs could file basis. plain By a claim relief. whenever a officer abused police claims only two—al- them, terms of two —and add allegations, boilerplate required state a cause of legations are proceed discovery hope First, action under statute. turning up support some evidence person allege that some made. “claims” right. deprived him Sec- of a federal 760 F.2d at ond, person allege must who view, my sufficiently Uberoi has deprived right him of that acted alleged that defendants individual law. color of state territorial acting to discrimi- pursuant this case 639-40, 1923-24. at 100 S.Ct. policies natory customs or of the Universi- Thus, in actions pleading requirements Indeed, ty. to such cus- reference against government simply track officials policies plaintiff’s toms or amended com- statutory requirements plaint is contained 51 of his paragraph Where, governmental in claims relief, claim for states: 7th which entities, Supreme quasi-governmental During all mentioned in this times requirement added the Court has additional Complaint, under color Defendants acted deprivation pursuant to a be made statutes, law, wit, pretense entity, require- policy or custom of the ordinances, regulations, and us- customs alleged is that the or custom be ages State of Colorado and not inconsistent. a State institu- holdings in Krishna Consciousness added). (emphasis tion. provi- and Gomez displace also do not best, allegation conclusory. At is Rules of Civil Proce- sions of pro se civil complaint, While a such 8(a)(2) requires that a dure. C.R.C.P. here, as the one filed held to less strin- plain state- pleading set forth “a short and gent standards than drafted an at- one pleader showing ment of the conjure up torney, courts still need of a is entitled relief.” conclusory unpled support facts to such the defendant rea- afford Carver, Hurney See (cid:127)allegations. general notice of nature of the sonable (1st Cir.1979); Guy v. Swift F.2d Charles St. presented. Vance matter Co., Cir.1980). 612 F.2d Ass’n, 313, 460 P.2d Mesa Water 170 Colo. no facts that Since allegation that indi- mere indicate the of discrimina- would existence in- to an vidual defendants acted policies, tory customs or he has not met the custom, describing that stitutional without finding govern- terms, superficial custom even most 1983. I mental under 42 U.S.C. § provide adequate notice to the does not therefore trial court’s dis- would affirm the conclusory defendant since such missal Uberoi’s claims Uni- precise “impossible make it to ascertain versity of Colorado. ‘policy’ nature of the or ‘custom’ alleged depriva- resulted in the have I authorized to say am that Chief Justice Geist, Bready F.R.D. at 434. tion.” QUINN joins in this and dis- concurrence least, very a custom At the such sent. sufficiently defendant identified for the matter investigation its own conduct begin to construct a defense. General-

ly, require that other that identification will

incidents of unconstitutional conduct Strauss,

pled. at 768. As 760 F.2d

the court in Strauss points out:

Case Details

Case Name: Uberoi v. University of Colorado

Court Name: Supreme Court of Colorado

Date Published: Jan 31, 1986

Citation: 713 P.2d 894

Docket Number: 84SA9

Court Abbreviation: Colo.