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JIMENEZ v. LAKELANDS RACING ASSN.

July 13, 1983

MIGUEL A. JIMENEZ
v.
LAKELANDS RACING ASSOCIATION, INC., THOROUGHBRED RACING PROTECTIVE BUREAU and COMMODORE DOWNS RACETRACK, and all employees and anyone acting in consort or in participation with said parties, Defendants, v. PENNSYLVANIA STATE HORSE RACING COMMISSION and HART STOTTER, individually and as agent for the STATE OF PENNSYLVANIA and JOAN PEW, Additional Defendants



The opinion of the court was delivered by: WEBER

[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 567 F. Supp.]

 ORDER

 AND NOW this 13th day of July, 1983, in consideration of defendants' motion to dismiss, the court orders the following:

 1. With respect to Count I of plaintiff's complaint against additional defendants, defendants' motion to dismiss is GRANTED;

 2. With respect to Count II and III of plaintiff's complaint against additional defendants, defendants' motion to dismiss is DENIED;

 3. Pending resolution of plaintiff's petition for review in the Commonwealth Court, the docket in this matter will be marked CLOSED until such time as further proceedings become necessary.

 July 13, 1983

 This matter is before the court on the additional defendants' motion to dismiss plaintiff's civil rights action.

 Plaintiff is a professional horse jockey employed at various racetracks in the United States. On or about May 27, 1982, he was barred from admission to the Commodore Downs Racetrack in Fairview, Pennsylvania, based on charges of alleged involvement in race fixing. This denial of admission is the basis for the lawsuit brought by the plaintiff on June 9, 1982 in Federal Court. Plaintiff has also filed a Petition for Review of the Commonwealth defendants' decision in the Commonwealth Court of Pennsylvania, which action is still pending at No. 1572 C.D. 1982.

 When passing on motions to dismiss, we must take as true the well-pleaded allegations of plaintiff's complaint. Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). In Count I of his complaint against the Commission, plaintiff alleges that pursuant to an appropriate appeal filed with the Commission, a hearing was held to consider the denial of plaintiff's admission at the Commodore Racetrack. Plaintiff alleges that testimony was taken based upon hearsay and "other undocumented testimony" which resulted in an adjudication upholding plaintiff's ejectment from the racetrack. The adjudication was signed by Commissioner Pew who was not in attendance at the hearing. Plaintiff avers that the foregoing actions amount to a violation of his constitutional due process and equal protection rights, as well as a violation of 42 U.S.C.A. ยง 1983. Count II and Count III, respectively, contain like allegations against the Commissioners Stotter and Pew for their role in the hearings and their knowledge of Pew's non-participation at the hearings.

 The additional defendants present three arguments in support of their motion to dismiss which the court will now consider. First, defendants maintain that the jurisdiction of the court over the Pennsylvania State Horse Racing Commission (Commission) is barred by the Eleventh Amendment to the Constitution of the United States. Second, the defendant Horse Racing Commission is not a "person" and cannot be a defendant in actions pursuant to Section 1983. And third, the Eleventh Amendment also provides immunity from monetary liability to the individual additional defendants in this case.

 In considering a state's constitutional immunity from suit in federal court we look first to the Eleventh Amendment which provides:

 
The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against any one of the United States by ...

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