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EUSTER v. PENNSYLVANIA STATE HORSE RACING COMMN.

May 11, 1977

EUGENE EUSTER and SHIRLEY EUSTER, husband and wife
v.
PENNSYLVANIA STATE HORSE RACING COMMISSION and ANDREW A. JOHNSON, ind. and in his capacity as a member of the PENNSYLVANIA STATE HORSE RACING COMMISSION and A. MARLYN MOYER, JR., ind. and in his capacity as a member of the PENNSYLVANIA STATE HORSE RACING COMMISSION and WILLIAM D. GROSS, ind. and in his capacity as a member of the PENNSYLVANIA STATE HORSE RACING COMMISSION and GAIL HAYWARD, ind. and in his capacity as EXECUTIVE SECRETARY of the PENNSYLVANIA STATE HORSE RACING COMMISSION and JOSEPH KELLY, ind. and in his capacity as INSPECTOR for the PENNSYLVANIA STATE HORSE RACING COMMISSION and PENNSYLVANIA STATE HARNESS RACING COMMISSION and PHILIP AHWESH, ind. and in his capacity as CHAIRMAN of the PENNSYLVANIA STATE HARNESS RACING COMMISSION and J. L. DOUDS, ind. and as a member of the PENNSYLVANIA STATE HARNESS RACING COMMISSION and EDWARD KANE, ind. and in his capacity as a member of the PENNSYLVANIA STATE HARNESS RACING COMMISSION and BERNARD HAMMER, EXECUTIVE SECRETARY of the STATE HARNESS RACING COMMISSION and CLIFFORD WOODWARD, ind. and in his capacity as LABORATORY SUPERVISOR for the PENNSYLVANIA STATE HARNESS RACING COMMISSION and THE HONORABLE MILTON J. SHAPP, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA



The opinion of the court was delivered by: GORBEY

 GORBEY, J.

 This civil rights action seeking money damages is brought pursuant to Title 42 U.S.C. § 1983, with jurisdiction based upon Title 28 U.S.C. § 1343, names as defendants two state agencies, Pennsylvania State Horse Racing Commission and Pennsylvania State Harness Racing Commission.

 The complaint must be dismissed as to both Commissions under the well settled rule that a state and its agencies are not "persons" within the meaning of § 1983. MONROE v. PAPE, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); UNITED STATES ex rel. GITTLEMACKER v. PHILADELPHIA, 413 F.2d 84 (3d Cir. 1969).

 The complaint against the two Commissions must be dismissed for the additional reason that both are state agencies under the general and financial control of the Commonwealth. Any judgment against either would require payment from state funds and there is no allegation in the complaint that the Commonwealth has given its consent to this kind of suit. Thus, the action as respects the two Commissions is barred by the Eleventh Amendment. MEYER v. STATE OF NEW JERSEY, 460 F.2d 1252 (3d Cir. 1972).

 The action against the defendants who are Commonwealth officials, sued in their official capacity, is barred for the reason that a claim for damages, if awarded, would necessarily have to be paid out of state funds. The Eleventh Amendment deprives the court of jurisdiction with respect to suits against a state by citizens of another state or by citizens or subjects of any foreign state. Although the Amendment by its terms does not bar suits against a state by its own citizens, the Supreme Court has consistently held that an unconsenting state is immune from suits brought in federal courts by her own citizens. HANS v. LOUISIANA, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890); PARDEN v. TERMINAL RY. OF ALA. ST. DOCKS DEPT., 377 U.S. 184, 84 S. Ct. 1207, 12 L. Ed. 2d 233 (1964); EDELMAN v. JORDAN, 415 U.S. 651, 663, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974).

 That the Commonwealth is not named as a party defendant, is immaterial because:

 
"It is also well established that even though a State is not named a party to the action, the suit may nonetheless be barred by the Eleventh Amendment. In Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S. Ct. 347, 89 L. Ed. 389 (1945) the Court said: '[When] the action is in essence one for the recovery of money from the state, the state is the real, substantial party in interest and is entitled to invoke its sovereign immunity from suit even though individual officials are nominal defendants'".
 
Edelman v. Jordan, supra, at p. 663.

 SARTESCHI v. BURLEIN, 508 F.2d 110, 113 (3d Cir. 1975); GREAT NORTHERN LIFE INSURANCE CO. v. READ, 322 U.S. 47, 88 L. Ed. 1121, 64 S. Ct. 873 (1943); KENNECOTT COPPER CORP. v. STATE TAX COMM'N., 327 U.S. 573, 90 L. Ed. 862, 66 S. Ct. 745 (1946). Thus the complaint must be dismissed for lack of subject matter jurisdiction as to defendants sued in their official capacity, Hammer, Johnson, Moyer, Gross, Hayward, Kelly, Ahwesh, Douds, Kane, Woodward and Governor Shapp.

 This leaves the question whether any cause of action has been stated against named defendants in their individual capacities. In this circuit it is definitely established that a civil rights complaint must set forth with specificity the acts and conduct of the defendant which are alleged to have worked an infringement of plaintiff's civil rights. KAUFFMAN v. MOSS, 420 F.2d 1270 (3d Cir. 1970), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84; NEGRICH v. HOHN, 379 F.2d 213 (3d Cir. 1967); DOWNS v. DEPARTMENT OF PUBLIC WELFARE, 368 F. Supp. 454 (E.D. Pa. 1973).

 With the exception as to defendants Kelly and Woodward, the complaint contains no allegations of specific conduct which purportedly violates any constitutional rights of plaintiffs. As to them it is impossible to determine what actions, taken as individuals, are claimed to be violations of plaintiffs' civil rights. Accordingly, any actions which such defendants took, since they were identified as state officials, have been taken pursuant to their state duties, and, as previously shown, the court lacks subject matter jurisdiction.

 Therefore the complaint against the aforementioned defendants in their individual capacities must be dismissed for failure to state a claim upon which relief can be granted.

 A brief recital of the alleged facts is necessary for a determination as to any individual liability on the part of the defendants Kelly and Woodward. The plaintiff, Eugene Euster, is a licensed trainer of thoroughbred horses in the Commonwealth of Pennsylvania. Shirley Euster is his wife. On November 2, 1976, a horse, "Bronze Tablet", trained by plaintiff, Eugene Euster, was the winner of the second race at Keystone Race Track. Following the race the horse was taken to a detention barn at the track and an urine sample was extracted by ...


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