# Cooperman v. University Surgical Associates, Inc. > Ohio Supreme Court · September 2, 1987 · 32 Ohio St. 3d 191 URL: https://www.frixlaw.com/law-library/cases/6759918 ## Case - **Full name:** Cooperman, and v. University Surgical Associates, Inc. Carey, and - **Court:** Ohio Supreme Court - **Decided:** September 2, 1987 - **Citations:** 32 Ohio St. 3d 191; 513 N.E.2d 288; 1987 Ohio LEXIS 370 - **Precedential status:** Published - **Opinion:** Concurrence by Douglas - **Judges:** Brown, Douglas, Holmes, Locher, Moyer, Strausbaugh, Sweeney, Tenth, Wright - **Cited by:** 73 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6759918 ## Opinion text Douglas, J., concurring in part and dissenting in part. I concur in paragraphs one and two of the syllabus in this case, and in the analysis and the language underlying them. I do not concur, however, with paragraphs three and four of the syllabus. I disagree with the majority’s conclusion that an adequate state remedy is available to appellee under these facts such that he is precluded from maintaining an action under Section 1983, Title 42, U.S. Code. To justify today’s holding that Count One failed to state a claim upon which relief can be granted under Section 1983, “it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery.” O’Brien v. Univ. Community Tenants Union (1975), 42 Ohio St. 2d 242 , 71 O.O. 2d 223, 327 N.E. 2d 753 , syllabus. I am convinced that the allegations of the complaint at bar, if proved, would entitle appellee to recovery under Section 1983. I do not accept the majority’s position that appellee’s Section 1983 action cannot be maintained because adequate state remedies are available as a means of redress. In support of its holding, the majority relies on Parratt v. Taylor (1981), 451 U.S. 527 , and Hudson v. Palmer (1984), 468 U.S. 517 . This reliance is misplaced. Parratt involved a Section 1983 action by a prisoner who alleged that prison officials had negligently lost certain mail order materials the prisoner had ordered. The prisoner claimed that he had been deprived of property without due process of law under the Fourteenth Amendment to the United States Constitution. In analyzing the question of whether this claim properly states an action under Section 1983, the court first noted that “* * * in any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Id. at 535. The court was satisfied that the first element was present, but found that the second element was not. The court reasoned that although the prisoner had clearly been deprived of property, the Fourteenth Amendment protects against only those deprivations which are without due process of law. Id. at 537. The deprivation of the prisoner’s property was not “without due process of law” since the state provided tort remedies as a means of redress for property losses which satisfy the requirements of procedural due process, in that full compensation would have been provided for the loss suffered. Id. at 542-544. Thus, since the property deprivation was not one “without due process of law,” the conduct com *203 plained of did not deprive the prisoner of a constitutional right, and no Section 1983 action lies. The majority today holds that the second requirement for a cause of action under Section 1983 is absent here because appellee has not alleged that available state tort remedies are inadequate to compensate him for his loss, citing Parratt and Hudson, supra. However, both these cases are distinguishable from the instant cause. The court in Parratt emphasized that the nature of the deprivation therein was such that the aggrieved party could have been fully compensated through available state tort remedies. Here, no available procedure can fully compensate appellee for the violation alleged. Unlike Parratt , the instant cause involves more than a deprivation of an item of property whose value can be proved for purposes of computing the compensation to which the aggrieved party is entitled. Rather, the case at bar involves a continuing deprivation of non-measurable property rights for which no adequate compensation is otherwise available. An award of money damages would not provide complete relief, in that it would not make appellee whole, nor would it ensure that the alleged violations will cease. Contrary to the implication by the majority, mandamus is not available under these facts, since the alleged injury inflicted on appellee was caused by appellants’ exercise of the discretionary authority inherent in their positions. Thus, appellants have no “clear legal duty” to grant appellee the rights and privileges denied him. See State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St. 2d 141 , 40 O.O. 2d 141, 228 N.E. 2d 631 , paragraph nine of the syllabus. This conclusion, that no adequate state remedy is available to appellee, is unaffected by the United States Supreme Court’s subsequent decision in Hudson, supra, which extended the holding in Parratt to intentional deprivations of property. The Hudson court held that “* * * an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. ” (Emphasis added.) Id. at 533 . As explained above, the state does not provide an adequate postdeprivation remedy for appellee’s loss under these facts, and a Section 1983 action is not precluded. I am convinced that Count One of appellee’s complaint satisfies the two prerequisites for a Section 1983 action as set forth in Parratt . The majority acknowledges that the conduct alleged in the complaint was performed by persons acting under color of state law, satisfying the first requirement. The second requirement in Parratt , that the conduct complained of must have caused a deprivation of rights, privileges, or immunities secured by the United States Constitution or federal laws, has also been satisfied in this case. My review of the relevant authorities leads me to conclude that the loss asserted by appellee amounts to a deprivation of a constitutionally protected interest. The landmark United States Supreme Court decisions on the question of whether employment is a protected property interest under the Fourteenth Amendment involve actual termination of the aggrieved party from the position rather than curtailment of associated rights and privileges as in the instant cause. However, the decisions provide valuable guidance on the central issue of whether the employment interests *204 asserted by appellee in Count One are constitutionally protected. Board of Regents v. Roth (1972), 408 U.S. 564 , and its companion case, Perry v. Sindermann (1972), 408 U.S. 593 , are particularly instructive. Roth involved a teacher at a state university, hired for a fixed term of one academic year, who was informed without explanation that he would not be rehired for the following year. In analyzing whether the renewal of this nontenured state teacher’s contract constituted a protected property interest, the court noted at the outset that “* * * [t]o determine whether due process requirements apply in the first place, we must look not to the ‘weight’ but to the nature of the interest at stake.* * *” (Emphasis sic.) Roth, supra, at 570-571 . The property interests protected by procedural due process are not limited to tangible items of property. Id. at 571-572 . But the Fourteenth Amendment safeguards only those interests or benefits already acquired. Id. at 576 . “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. * * *” Id. at 577 . “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. * * *” Id. In holding that the teacher’s expectancy of continued employment did not amount to a constitutionally protected property interest, the Roth court relied heavily on the fact that the terms of the teacher’s appointment “* * * secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the * * * [teacher] surely had an abstract concern in being rehired, but he did not have a property interest” (emphasis sic) sufficient to invoke constitutional safeguards. Id. at 578 . Perry, supra, involved a teacher employed in a state college under a series of one-year written contracts whose contract, without explanation or prior hearing, was not renewed. The college had no tenure system, but the teacher alleged that a binding defacto tenure policy was in place upon which he had legitimately relied. In holding that the teacher’s expectancy of continued employment was a constitutionally protected property interest under these facts, the Perry court noted that the absence of an explicit contractual provision entitling a party to continued employment is not dispositive of the existence of a property interest in reemployment. Id. at 601 . A contract may be implied from the policies and practices of the institution such that a legitimate claim of entitlement to continued tenure is established. Id. at 602 . In such a case, the aggrieved party would have more than a mere subjective expectancy which is not protected. Applying these principles to the instant cause, I would conclude that ap-pellee has alleged an interest in certain benefits of his employment sufficient to rise to the level of a constitutionally protected property interest. The complaint alleges that appellee was deprived of staff and faculty appointments which had been previously promised to *205 him and which he had earned. These assertions compel the conclusion that appellee’s rights, as alleged, amounted to more than purely subjective expectancies or privately cherished hopes. According to the complaint, the employment-related opportunities of which appellee was deprived had already been earned or acquired. Thus, appellee has alleged a legitimate entitlement to the benefits described amounting to a constitutionally protected property right. However, I would reject appellee’s argument that the complaint states a cause of action under Section 1983 as against the members of the Ohio State University Board of Trustees and the Ohio State University Hospitals Board. As to these parties, the complaint alleges that individual members, “* * * despite being advised of the problems related to * * * Carey, Tzagournis and Mekhjian, have, under color of state law, failed to remedy these problems, to the further detriment and deprivation of the economic rights of * * * [appellee].” Appellee does not allege any affirmative acts or participation in misconduct. Essentially, the complaint asserts that the members of the two boards were negligent in failing to take action against appellants to protect appellee’s rights. In concluding that these allegations are inadequate to state a claim under Section 1983, I rely on recent companion decisions from the United States Supreme Court: Daniels v. Williams (1986), 474 U.S. ___ , 88 L. Ed. 2d 662 , and Davidson v. Cannon (1986), 474 U.S. ___ , 88 L. Ed. 2d 677 . In these decisions, the court held that mere negligence or a knowing failure to act on the part of state officials or employees is not actionable under Section 1983, Title 42, U.S. Code, as a deprivation of the aggrieved party’s right to due process of law under the Fourteenth Amendment to the United States Constitution. Thus, Count One of the instant complaint does not state a cause of action against the members of the Ohio State University Board of Trustees and the Ohio State University Hospitals Board. Accordingly, I would reverse the court of appeals’ holding that no claim for relief was stated in Count One of appellee’s complaint, but only as to Carfey, Tzagournis and Mekhjian. Sweeney, J., concurs in the foregoing opinion. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6759918. Public record. Not legal advice.