Unpublished Disposition, 931 F.2d 60 (9th Cir. 1991)

MEMORANDUM^** 

Sammy Hurst appeals pro se the district court's denial of his motion to proceed in forma pauperis ("IFP") and dismissal of his action¹  against the University of Washington ("UW"), et al. as frivolous under 28 U.S.C. § 1915(d).²  Hurst also contends that Judge Barbara J. Rothstein erred in denying his motion to recuse Judge Coughenour. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, and reverse and remand in part.

* Dismissal

Under 28 U.S.C. § 1915(d), the district court may deny leave to proceed IFP and dismiss the case if the action is frivolous. See 28 U.S.C. § 1915(d); Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). An action is frivolous if the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989). The district court, however, must afford a pro se plaintiff notice of the deficiencies in the complaint and an opportunity to amend prior to dismissal unless it is absolutely clear that the deficiencies cannot be cured. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987). Moreover, in civil rights cases where the plaintiff is pro se, we have an obligation to construe the pleadings liberally. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

In his complaint, Hurst contends that the UW, its president, and seventeen of its instructors conspired to give Hurst low grades "because of his race, age, and/or handicap." He seeks monetary damages in excess of $10 million and equitable relief in the form of reevaluation and regrading of his academic work. The complaint is conclusory and fails to assert a cognizable federal cause of action. Hurst fails to indicate his race, age, or handicap, and offers no connection between his course grades and the alleged conspiracy to discriminate against him based upon these factors. Nevertheless, we must review the complaint to determine whether it contains any arguable basis in law or fact such that Hurst should have been given notice of the deficiencies and an opportunity to amend. See Noll, 809 F.2d at 1448.

In Board of Curators, Univ. of Mo. v. Horowitz, the Supreme Court assumed, without deciding, that federal courts can review an academic decision of a public educational institution under a substantive due process standard. 435 U.S. 78, 91-92 (1978). In Horowitz, the student filed a section 1983 action alleging that she had been improperly dismissed from medical school for failing to meet academic standards. 435 U.S. at 79-80. The Court rejected the substantive due process claim because there was no showing of arbitrariness or capriciousness. Id. at 91-92. Similarly, in Regents of the Univ. of Mich. v. Ewing, a student filed a section 1983 action following his dismissal from a joint undergraduate/medical school program because he failed a written examination. 474 U.S. 214, 215 (1985). The Court in Ewing held that judges may not override "a genuinely academic decision ... unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment." Id. at 225.³ 

Neither the Supreme Court nor the Ninth Circuit, however, has addressed the issue of whether students at a public educational institution have a cognizable claim if they allege that they received lower grades because of their race, age, or handicap. Given these circumstances, it is not absolutely clear that such a claim lacks any arguable basis in law, and therefore the district court erred in dismissing the action as frivolous. See Neitzke, 109 S. Ct. at 1831; see also Guti v. INS, 908 F.2d 495, 496 (9th Cir. 1990) (" [t]he [frivolousness] standard is not met when there is no controlling authority requiring a holding that the factors as alleged fail to establish even an arguable claim as a matter of law"). Moreover, Hurst arguably can state a substantive due process claim if his failing grades prevented his graduation or led to his academic dismissal. See Ewing, 474 U.S. at 215-17; Clements v. County of Nassau, 835 F.2d 1000, 1001 (2d Cir. 1987) (plaintiff's section 1983 complaint "asserted that [defendants'] bad faith grading and evaluation of her clinical performance as a nursing student resulted in her inability to graduate"); Schuler v. Univ. of Minn., 788 F.2d 510, 513 (8th Cir. 1986) (student excluded from graduate program after failing oral exam), cert. denied, 479 U.S. 1056 (1987); Hubbard v. John Tyler Community College, 455 F. Supp. 753, 754 (E.D. Va. 1978) (pursuant to college policy, student who received a "D" and "F" in two courses was not permitted to graduate from a nursing program). Accordingly, we find the district court erred in not notifying Hurst of the deficiencies in his complaint and allowing him an opportunity to amend his complaint to allege a cognizable claim. See Noll, 809 F.2d at 1448.

To the extent that Hurst seeks to bring an action for damages against the UW or its officials acting in their official capacity, however, the action is barred by the eleventh amendment to the United States Constitution.

Under the eleventh amendment, a state is immune from suit brought in federal court by her own citizens or citizens of another state. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Federal court actions against agencies or instrumentalities of a state also are barred by the eleventh amendment. See Shaw v. State of Cal. Dep't of Alcoholic Beverage Control, 788 F.2d 600, 603 (9th Cir. 1986). Moreover, a suit against state officials, in their official capacity, is no different than a suit against the state itself and therefore is subject to the eleventh amendment. See Kentucky v. Graham, 473 U.S. 159, 165-67 (1985) (observing that "official-capacity" suits are equivalent to suits against the entity itself, and raise an eleventh amendment issue if the entity is a state); see also Will v. Michigan Dep't of State Police, 109 S. Ct. 2304, 2311-12 (1989) (citing Graham, the Court held "that neither a [s]tate nor its officials acting in their official capacity are 'persons' under Sec. 1983"). Thus, unless the state unequivocally waives sovereign immunity or Congress exercises its power under section five of the fourteenth amendment to override the immunity, the state, its agencies, and its officials--acting in their official capacity--are immune from suit under the eleventh amendment. See Will, 109 S. Ct. at 2309; Pennhurst, 465 U.S. at 104.

Here, Washington State has not waived its eleventh amendment immunity from suit. See Clallam County v. Department of Transp., State of Wash., 849 F.2d 424, 427 (9th Cir. 1988) (" [n]either the State [of Washington] nor the agency [has] waived the eleventh amendment immunity"); Draper v. Coombs, 792 F.2d 915, 918 (9th Cir. 1986). Moreover, Hurst has asserted no cause of action based on any federal law which overrides Washington State's immunity. Thus, if the UW is an instrumentality of Washington State, then the UW and its officials, acting in their official capacity, are immune from damages.

The UW is a public educational institution created by Washington State statute. Spaulding v. Univ. of Wash., 740 F.2d 686, 692 (9th Cir.) (citation omitted), cert. denied, 469 U.S. 1036 (1984), overruled on other grounds, Antoniov v. Wardscove Packing Co., 810 F.2d 1477 (9th Cir. 1987). Given Washington State's creation, funding, and control of the UW, it functions, for purposes of the eleventh amendment, as an instrumentality of the State of Washington. See Thompsen v. City of Los Angeles, 885 F.2d 1439, 1442 (9th Cir. 1989) (University of California was state instrumentality for purposes of the eleventh amendment); Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982); see also Spaulding, 740 F.2d at 694 (the parties agreed that UW was a state agency subject to immunity under the eleventh amendment). Accordingly, the district court did not err in dismissing Hurst's action to the extent that he sought to sue the UW and its officials acting in their official capacity for damages in federal court. See Will, 109 S. Ct. at 2311-12.

The eleventh amendment, however, does not bar suits against state officials sued in their individual capacity. See Price v. Akaka, No. 89-15169, slip op. at 2957, 2965-66 (9th Cir. Mar. 21, 1991) (citing Blaylock v. Schwinden, 862 F.2d 1352, 1354 (9th Cir. 1988)). Nor does it "preclude suit against a state official in federal court if the relief sought is prospective." Clallam County, 849 F.2d at 427; see also Will, 109 S. Ct. 2311 n. 10 (noting the availability of prospective injunctive suits against the state); Graham, 473 U.S. at 167 n. 14 ("official-capacity actions for prospective relief are not treated as actions against the [s]tate"). Here, Hurst's complaint does not specifically seek prospective relief nor does it specifically name the defendants in their individual capacity. Hurst, however, may be able to cure these deficiencies by amendment. See Brady v. Smith, 656 F.2d 466, 469 (9th Cir. 1981) (under liberal construction given pro se plaintiffs, complaint could state a Bivens claim against individual federal officials despite pro se's failure to specifically name the defendants in their individual capacity). Accordingly, we remand the case to give Hurst the opportunity to do so.

II

Recusal

Hurst contends that Judge Barbara J. Rothstein erred in denying his motion to recuse Judge Coughenour. This contention may have merit. This court reviews a denial of a motion for recusal for an abuse of discretion. See United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (citation omitted). "The standard for recusal under 28 U.S.C. §§ 144, 455 is 'whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.' " Id. (quotation omitted).

Under section 144, a party must file a timely affidavit setting forth facts and reasons for the belief that bias or prejudice exists. See 28 U.S.C. § 144. An affidavit filed pursuant to section 144 is not legally sufficient unless it specifically alleges facts that fairly support the contention that the judge exhibits bias or prejudice directed toward a party that stems from an extrajudicial source. See United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980) (citations omitted).

In his affidavit, Hurst asserted that Judge Coughenour was prejudiced against Hurst because Coughenour's former law firm had represented the Earle M. Jorgensen Company ("Jorgensen") in Hurst's prior action against Jorgensen. Hurst's affidavit, however, did not allege that Coughenour had personally represented Jorgensen or that he had been directly involved in the prior action.

On the record before us, we are unable to determine whether Judge Coughenour was still a member of the firm when Hurst brought his action against Jorgensen. Accordingly, we remand for Judge Rothstein to resolve this factual issue. If the evidence shows that Judge Coughenour was still a member of the firm while the action against Jorgensen was pending, then a reasonable person with knowledge of all the facts might reasonably question Judge Coughenour's impartiality. If not, then Judge Rothstein did not abuse her discretion in denying Hurst's motion to recuse Judge Coughenour. See Studley, 783 F.2d at 939; 28 U.S.C. § 455.

AFFIRMED in part, REVERSED and REMANDED in part.