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SABATINI v. REINSTEIN

November 29, 1999

DONALD S. SABATINI
v.
ROBERT J. REINSTEIN, DEAN OF TEMPLE UNIVERSITY SCHOOL OF LAW AND VICE PRESIDENT, TEMPLE UNIVERSITY AND TEMPLE UNIVERSITY SCHOOL OF LAW AND TEMPLE UNIVERSITY



The opinion of the court was delivered by: Ludwig, District Judge.

ORDER — MEMORANDUM

AND NOW, this 24th day of November, 1999, defendants' partial motion to dismiss counts III, IV, VII, and VIII of the amended complaint, filed pro se, is granted.*fn1 Fed.R.Civ.P. 12(b)(6).*fn2 Jurisdiction is federal question. 28 U.S.C. § 1331.

In this § 1983 case, defendants are alleged to have violated plaintiff's First and Fourteenth Amendment rights. Factually, according to the amended complaint, plaintiff was prevented by campus police from distributing leaflets critical of Temple Law School at its graduation ceremonies in May of 1997 and 1998.*fn3

Counts III and VII describe the claims as due process violations under the Fourteenth Amendment.*fn4 "Defendants impermissibly infringed upon Plaintiff's protected Liberty Interest (under the Due Process Clause) in lawful, free exercise of his First Amendment rights to Freedom of Speech, Freedom of Assembly, Freedom of Petition, and Freedom of Association." Amended Complaint at ¶ 62. This wording suggests that plaintiff's inability to exercise his First Amendment rights constituted a substantive due process violation.

These claims come within the contours of the First, not the Fourteenth Amendment.*fn5 As noted by the Supreme Court, "[w]here a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims.'" Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 813, 127 L.Ed.2d 114 (1993) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Here, plaintiff's allegations — preventing plaintiff from distributing leaflets — plead a specific First Amendment violation, and are properly denominated as such.

Plaintiff cites the recent decision in City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), for the proposition that a First Amendment violation can also amount to a violation of substantive due process. Morales struck down a Chicago criminal ordinance aimed at prohibiting gang members from loitering in public places. However, Morales was not decided on First Amendment grounds, but rather on the ground that the ordinance was impermissibly vague under the due process clause of the Fourteenth Amendment.*fn6 119 S.Ct. at 1857. ("the law does not have ...


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