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July 6, 1981

Constant A. MADON, Plaintiff,
LONG ISLAND UNIVERSITY C. W. POST CENTER, Long Island University and Faculty of C. W. Post Center, Long Island University, Greenvale, New York, Defendants

The opinion of the court was delivered by: NEAHER


Plaintiff pro se in this action brought under the Fourteenth Amendment to the Constitution and 42 U.S.C. ยง 1983 is a former professor at defendant C.W. Post Center of Long Island University ("LIU"). *fn1" Claiming that he was denied procedural due process when he was dismissed from his position, plaintiff seeks an order reinstating him as a tenured faculty member. The action is now before the Court on defendants' motion to dismiss for failure to state a claim. Rule 12(b)(6), F.R.Civ.P.

 On such a motion, the issue is not whether plaintiff will ultimately prevail but whether he is entitled to offer evidence in support of his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). Therefore, all well-pleaded material allegations will be accepted as true and the complaint will be construed in favor of the complaining party, Cruz v. Beto, 405 U.S. 319, 323, 92 S. Ct. 1079, 1082, 31 L. Ed. 2d 263 (1972), recognizing that there cannot be a dismissal unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). Finally, while the Court is cognizant of the liberal reading to be given pro se complaints, Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), we note that plaintiff possesses a doctoral degree, Complaint, Exh. 37, and it is apparent from his own submissions on this motion that he does not suffer from an inability to articulate his view of either the relevant facts or the applicable law. See Morpurgo v. Board of Higher Ed., 423 F. Supp. 704, 707 (S.D.N.Y.1976) (Weinfeld, J.). Applying the standards outlined above, the Court is of opinion that dismissal is appropriate.

 The following facts are gleaned from the complaint and its attached exhibits, and they are presumed true for the purposes of this motion. In 1970 plaintiff began teaching as an associate professor in the Graduate School of Education at the C.W. Post Center of LIU. Three years later he was granted tenure. During the 1972-73 academic year, plaintiff developed two proposals for graduate degree programs he sought to institute within the School of Education. Plaintiff submitted the proposals to the New York State Education Department ("NYSED"), and during the next two years corresponded with NYSED officials with a view towards refining his proposals so as to make them ultimately acceptable for accreditation by NYSED. Plaintiff incorporated some of the officials' suggestions in his programs, which, in 1974, received the final approvals of both LIU and NYSED and were instituted at C.W. Post. Plaintiff and other professors began instructing other faculty members and graduate students who enrolled in the courses necessary for satisfaction of the new degree requirements.

 In the Spring of 1976, LIU's Vice President for Academic Affairs initiated an investigation into allegations of unprofessional conduct arising out of the granting of course credits and grades to faculty members enrolled in certain graduate courses at C.W. Post. On December 22, 1976, the President of C.W. Post sent plaintiff a letter containing the following notice:

"On November 11, 1976 the Center Tenure and Promotion Board of C.W. Post Center of Long Island University recommended to me that formal proceedings be instituted to consider your dismissal because it appeared to that Board that you had engaged in unprofessional conduct reflecting upon your fitness as a faculty member.
"Accordingly, and pursuant to the AAUP's (American Association of University Professors) 1940 Statement of Principles on Academic Freedom and Tenure as supplemented by its 1958 Statement of Procedural Standards in Faculty Dismissal Proceedings, it is hereby charged that you awarded credits and grades to other faculty members of C.W. Post Center for courses in the Graduate School of Education not actually taken and completed, and for which appropriate work was not done, as follows:
(particularized list of 19 faculty members who received credits and grades from plaintiff)
"If you so request in writing not less than one week before the hearing date, a hearing to determine whether you should be removed from your faculty position will be conducted by a faculty committee on or after January 26, 1977. At that hearing, you will be accorded the procedural rights set forth in the above mentioned 1940 and 1958 AAUP Statements. On the basis of the hearing the committee will decide whether you should be removed, subject to review and final decision by the Board of Trustees of Long Island University." Complaint, Exh. 12.

 Plaintiff requested the hearing and a committee was selected from the LIU faculty. The hearing was held on May 31, 1977, and plaintiff, represented by counsel of his own choosing, appeared and contested the charges. By letter dated June 27, 1977, plaintiff was informed:

"After a thorough hearing and a careful review of the evidence in the record considered as a whole, as presented in the hearings and contained in the transcripts and exhibits, the Hearing Committee has found that the charges made against you have been established by clear and convincing evidence. The Committee recommends that you be dismissed as a member of this faculty." Complaint, Exh. 35.

 Plaintiff's attorney filed with the LIU Board of Trustees a brief and presented oral argument contesting the Hearing Committee's recommendation. By letter dated September 7, 1977, however, plaintiff was notified that the Board of Trustees had voted to accept the faculty Committee's recommendation to dismiss him.

 Alleging a series of irregularities at the hearing into the charges against him, plaintiff complains that he was deprived of a property interest in his tenured position without procedural due process. Defendants deny any irregularities and have moved to dismiss on the ground that the complaint wholly fails to allege the "state action" necessary for relief under either the Fourteenth Amendment or the Civil Rights Act. *fn2"

 The Supreme Court has squarely placed on plaintiffs in civil rights actions the burden of alleging and proving that the person or entity that caused a deprivation of a federal right acted "under color of state or territorial law." *fn3" Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 1923, 64 L. Ed. 2d 572 (1980). See Monroe v. Pape, 365 U.S. 167, 171, 81 ...

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