UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM SIMONS,

Plaintiff-Appellant,

v.

WEST VIRGINIA UNIVERSITY; WEST

VIRGINIA UNIVERSITY BOARD OF

TRUSTEES; NEIL S. BUCKLEW,

President of West Virginia

No. 95-1712

University, in his official capacity;

GERALD E. LANG, Dean of the

College of Arts & Sciences, in his

official capacity; HARVEY R.

DIAMOND, Interim Chairman of the

Department of Mathematics, in his

official capacity,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Robert Earl Maxwell, District Judge.

(CA-94-70-C)

Argued: March 4, 1996

Decided: May 7, 1996

Before HAMILTON, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Paul Joseph Harris, WALLACE & HARRIS, Elkins,

West Virginia, for Appellant. Laurie L. Crytser, STEPTOE & JOHNSON, Morgantown, West Virginia, for Appellees. ON BRIEF:

Joseph A. Wallace, WALLACE & HARRIS, Elkins, West Virginia,

for Appellant. Susan S. Brewer, STEPTOE & JOHNSON, Morgantown, West Virginia, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

William Simons appeals the dismissal of his complaint by the district court for failure to state a claim upon which relief can be granted,

see Fed. R. Civ. P. 12(b)(6). We affirm, although on reasoning

slightly different from that of the district court.

I.

Simons is a tenured professor in the Math Department at West Virginia University (the University). On September 10, 1992, Simons

circulated a memorandum addressed to graduate students in the Math

Department, responding to comments made by fellow math professor

Sam Nadler regarding the termination of two employees. In the memorandum, Simons called Nadler "a liar" and accused him of conducting a "malicious campaign to discredit the department." (J.A. at 65.)

Simons concluded by exhorting the students not to"let [Nadler]

demoralize you with his deprecations against the department and its

faculty, and don't believe much of what he has to say." (J.A. at 65.)

In March 1993, in response to further memoranda by Simons

accusing Nadler of misconduct, interim department chairman Harvey

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Diamond instructed Simons to pursue his complaints about Nadler

through the University's grievance procedure. Diamond warned

Simons that further dissemination of allegations against Nadler outside the context of the grievance procedure would be considered

insubordination and might warrant disciplinary action. Simons replied

by circulating a memorandum asserting that Diamond's directive was

invalid in that it violated Simons's First Amendment right to free

speech. In response to Simons's continued propagation of memoranda, Gerald Lang, Dean of the College of Arts and Sciences, disciplined Simons for insubordination by suspending him without pay for

one week. Simons appealed his suspension though the University's

grievance procedure.

Simons subsequently filed this action pursuant to 42 U.S.C.A.

§ 1983 (West 1994), alleging that Appellees 1 had violated his First

Amendment right by punishing him for speaking out against Nadler's

alleged misconduct and Diamond's "unlawful" directives and that

Appellees had violated his rights under the Due Process Clause of the

Fourteenth Amendment by failing to investigate his allegations

against Nadler and by failing to process his grievance in a timely

fashion. Appellees moved to dismiss pursuant to Rule 12(b)(6). The

district court granted the motion to dismiss, concluding that Simons's

First Amendment claim failed as a matter of law because his speech

did not address a matter of public concern; as Simons's speech was

unprotected, its truth or falsity was irrelevant, and thus Appellees

could not have violated Simons's due process right by failing to

investigate his allegations; and Simons's claim regarding the delay in

the processing of his grievance was not actionable because Simons

had failed to allege that he suffered an injury as a result of the delay.2

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1 Simons brought suit against West Virginia University, the West Virginia University Board of Trustees, Neil Bucklew in his official capacity

as President of the University, Lang in his official capacity as Dean of

the College of Arts & Sciences, and Diamond in his official capacity as

Interim Chairman of the Department of Mathematics. We refer to these

parties collectively as "Appellees."

2 Appellees also argued before the district court, as they do here, that

they are not subject to suit because the University, its Board of Trustees,

and its officers are arms of the State of West Virginia, and thus they are

not "persons" within the meaning of § 1983. See Will v. Michigan Dep't

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Simons now appeals, asserting that the district court erred in reaching

each of these conclusions.

II.

The purpose of a Rule 12(b)(6) motion is to test the legal sufficiency of the complaint, Randall v. United States, 30 F.3d 518, 522

(4th Cir. 1994), cert. denied, 115 S. Ct. 1956 (1995); such motions

"should be granted only in very limited circumstances." Rogers v.

Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir. 1989). A

court considering a Rule 12(b)(6) motion must accept as true all of

the plaintiff's factual allegations and all favorable inferences that may

reasonably be drawn from those allegations. See Mylan Lab., Inc. v.

Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993), cert. denied, 114 S. Ct.

1307 (1994). Although we must assume that the plaintiff can prove

all of the facts alleged in his complaint, "`it is not . . . proper to

assume that [the] plaintiff[ ] can prove facts that [he has] not alleged

or that the defendants have violated the . . . law[ ] in ways that have

not been alleged.'" Estate Constr. Co. v. Miller & Smith Holding Co.,

14 F.3d 213, 221 (4th Cir. 1994) (quoting Associated Gen. Contractors v. California State Council of Carpenters, 459 U.S. 519, 526

(1983)). A motion to dismiss should not be granted"unless it appears

certain that the plaintiff can prove no set of facts which would support

its claim and would entitle it to relief." Mylan Lab., Inc., 7 F.3d at

1134. We review de novo the district court's decision to dismiss

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of State Police, 491 U.S. 58, 71 (1989) (holding that state officials are

not "persons" within the meaning of § 1983 in a suit for damages).

Simons counters that Appellees are more accurately likened to a municipal corporation and its officers, and as such they are "persons" amenable

to suit under § 1983. See Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 279-81 (1977) (holding that a local school district

is not an arm of the state). We agree with the district court that at the

very least, Appellees may be sued for declaratory and injunctive relief

even if they are arms of the state. See Will, 491 U.S. at 71 n.10 (noting

that a state official sued in his official capacity for injunctive relief is a

"person" within the meaning of § 1983). We need not resolve the more

difficult question of whether Appellees are immune from Simons's claim

for damages because we affirm on other grounds the district court's dismissal of Simons's complaint.

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Simons's complaint for failure to state a claim upon which relief can

be granted. See Randall, 30 F.3d at 522.

A.

Simons first asserts that the district court erred in dismissing his

First Amendment claim on the basis that his speech did not address

a matter of public concern. Simons maintains that his "comments

were motivated purely by his desire to preserve the reputation of [the

University] and [were made] with the express intention of maintaining the morale of the students in the Department of Mathematics."

(Appellant's Br. at 2-3.) He further maintains that,"[a]s a public institution, the reputation and integrity of [the University] are issues of

public concern, as is the morale of its students." (Appellant's Br. at

11.) Appellees respond that, regardless of Simons's motivations, his

speech did not address a matter of public concern and so it was not

protected by the First Amendment.

That the University, a public institution, "cannot condition public

employment on a basis that infringes [Simons's] constitutionally protected interest in freedom of expression" is beyond question. Connick

v. Myers, 461 U.S. 138, 142 (1983). Simons's interest in free expression may be limited, however, by the University's interest "`in promoting the efficiency of the public services it performs through its

employees.'" Id. (quoting Pickering v. Board of Educ., 391 U.S. 563,

568 (1968)). The determination of whether the University has

infringed Simons's First Amendment right to freedom of speech is

guided by a three-part inquiry. See Daniels v. Quinn, 801 F.2d 687,

689 (4th Cir. 1986). First, we must determine whether Simons's

speech touched upon matters of public concern. Hall v. Marion Sch.

Dist. No. 2, 31 F.3d 183, 192 (4th Cir. 1994). If so, we must then proceed to the question of whether the protected speech was the "but for"

cause of Simons's suspension. See id. If Simons's complaint survives

this inquiry, we must turn finally to the question of whether Simons's

interest in exercising his free speech right outweighs the University's

interest "in providing the public service [he] was hired to provide."

Stroman v. Colleton County Sch. Dist., 981 F.2d 152, 156 (4th Cir.

1992). Each part of the inquiry provides an independent basis for

decision. See Daniels, 801 F.2d at 689. Thus, if we conclude that

Simons's speech does not arguably relate to a matter of public con-

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cern, we need only address that prong of the inquiry. See Connick,

461 U.S. at 146, 149-50 (noting that if employee's speech does not

address a matter of public concern "it is unnecessary for us to scrutinize the reasons for [the employee's] discharge" and stating that the

question of whether speech addressed a matter of public concern is "a

threshold inquiry"); Arvinger v. Mayor & City Council, 862 F.2d 75,

77 (4th Cir. 1988) (noting that if the employee's speech "concerns

private rather than public matters, it is not necessary to proceed to a

consideration of the employer's interests"); see also Stroman, 981

F.2d at 158 (stating that court should apply balancing test when

employee's speech "arguably" involves a matter of public concern).

With these principles in mind, we now turn to an examination of the

factual allegations contained in Simons's complaint to determine

whether these allegations, if proven, would state a legally cognizable

claim for violation of Simons's First Amendment right to freedom of

speech.

The question of whether Simons's speech addressed matters of

public concern is one of law for the court to answer. Connick, 461

U.S. at 148 n.7; Arvinger, 862 F.2d at 77. As we have previously

noted, "[t]he essential question is whether the employee is speaking

out as a citizen, upon matters of public concern, or as an employee,

upon matters only of personal interest." Hall , 31 F.3d at 192. In other

words, "the purpose of the inquiry is to prevent turning every public

employee expression of private grievance into a constitutional case."

Berger v. Battaglia, 779 F.2d 992, 998-99 (4th Cir. 1985), cert.

denied, 476 U.S. 1159 (1986). The determination of whether

employee speech addresses matters of public concern turns on the

content, form, and context of the speech, as revealed by all of the circumstances. See Connick, 461 U.S. at 147-48.

We begin by examining the content of Simons's speech to determine whether it addressed a matter of public concern. In resolving the

question of whether Simons's speech addressed a matter of public

concern in terms of its content, we are guided by our explanation of

the content inquiry in Jurgensen v. Fairfax County, 745 F.2d 868 (4th

Cir. 1984):

If the speech relates primarily to a matter of "limited public

interest" and does not "seek to bring to light actual or poten-

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tial wrongdoing or breach of public trust," centering instead

on matters primarily, if not exclusively "of personal interest"

to the employee such as employee grievances over internal

working conditions, etc., that fact must be weighed in determining whether a matter of true public concern is involved

for the "First Amendment does not require a public office to

be run as a roundtable for employee complaints over internal office affairs."

Id. at 879 (quoting Connick, 461 U.S. at 148-49). Moreover, we note,

content is a "significant factor[ ]" in determining whether speech

involves a matter of public concern. See id.

Here, the content of Simons's speech consisted of two complaints:

first, that Nadler lied to students about the circumstances surrounding

the resignation of two fellow Math Department employees; and second, that Diamond unconstitutionally instructed Simons to air his

complaints about Nadler through the University's grievance procedure. These comments, viewed in the light most favorable to Simons,

at most amount to personal gripes about the conduct of a fellow professor and about discipline imposed upon him as a result of his

actions. Such comments simply do not relate to matters of public concern. See Connick, 461 U.S. at 148 (holding that employee's questions related to workers' trust in their supervisors, office morale, and

the need for a grievance committee were mere extensions of employee's protest over her transfer to another department and as such did

not relate to a matter of public concern); Kurtz v. Vickrey, 855 F.2d

723, 728-29 (11th Cir. 1988) (concluding that professor's statements

criticizing university president for mischaracterizing salary increases

as "good," stating inaccurately that university was at the geographical

center of state, and using the term "average" incorrectly did not relate

to matters of public concern); Daniels, 801 F.2d at 690 (holding that

complaint by teacher to board of education member that the teacher

had not received certain teaching materials did not relate to a matter

of public concern, noting that although failure to receive teaching

materials affected the teacher's ability to teach,"[t]he identical point

can be made about innumerable conditions at a school" and concluding that "[q]uestions of this sort do not belong in federal court");

Chitwood v. Feaster, 468 F.2d 359, 360-61 (4th Cir. 1972) (noting

that "bickering and running disputes with the department heads" do

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not constitute speech on matters of public concern). Stated another

way, Simons's speech did not address matters of public concern in

terms of its content because Simons did not "seek to bring to light

actual or potential wrongdoing or breach of public trust" on the part

of Nadler or Diamond. Connick, 461 U.S. at 148-49 (concluding that

employee's survey question regarding whether other employees were

pressured to participate in political campaigns addressed matter of

public concern); see Stroman, 981 F.2d at 157-58 (concluding that

teacher's statements regarding alleged mismanagement of school budget, standing alone, would constitute speech addressing matters of

public concern); Kurtz, 855 F.2d at 729-30 (concluding that professor's statements regarding university's budget priorities addressed a

matter of public concern).

We next consider whether the form of Simons's speech indicates

that the speech addressed a matter of public concern. While an

employee's decision to speak privately rather than publicly is not dispositive of the question of whether his speech addressed a matter of

public concern in terms of its form, see Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415-16 (1979) (holding that speech does

not lose its protected status merely because it is communicated privately rather than publicly); Stroman, 981 F.2d at 154, 157-58 (concluding that statements contained within internal memorandum

arguably related to a matter of public concern), we cannot ignore that

speech on matters of public concern frequently is made in the form

of a public communication. See Hall, 31 F.3d at 193 (speech made

through letters to the editor and through Freedom of Information Act

requests); Chitwood, 468 F.2d at 360-61 (public criticism of college

officials). Here, Simons's complaint establishes that his speech was

disseminated through memoranda that were circulated to students and

faculty within the Math Department alone, rather than through an airing of his concerns to the public. See Connick , 461 U.S. at 148 (noting that distribution of questionnaire to fellow employees within the

district attorney's office did not constitute speech to the public). Thus,

the form of Simons's speech indicates that he was speaking not as a

citizen, but as an employee aggrieved over the actions of a colleague.

See Kurtz, 855 F.2d at 729 (noting that professor's assertion that his

speech related to matters of public concern "loses force when it is

considered that he took no affirmative steps . . . to inform the public

at large about[ ] the problems with which he was so gravely con-

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cerned"). Accordingly, we conclude that the form of Simons's speech

weighs against a conclusion that the speech involved a matter of public concern.

Our next consideration, an examination of the context of Simons's

speech, requires an inquiry into "`the underlying circumstances,

including the employee's reasons for speaking.'" Wright v. Illinois

Dep't of Children & Family Servs., 40 F.3d 1492, 1501 (7th Cir.

1994) (quoting Smith v. Fruin, 28 F.3d 646, 651 (7th Cir. 1994), cert.

denied, 115 S. Ct. 735 (1995)). Here, Simons's complaint reveals that

the underlying circumstances of his speech were that Simons was personally upset by what he viewed as Nadler's lies and by Diamond's

instruction that Simons relegate his complaints about Nadler to the

University's grievance procedure. Even assuming that Simons can

prove that his desire to maintain the morale of students in the Math

Department motivated his speech regarding Nadler, this reason for

Simons's speech does not establish that the speech related to a matter

of public concern. See Connick, 461 U.S. at 148 (holding that issues

regarding office morale do not amount to matters of public concern).

And, with respect to Diamond's directive, Simons spoke out to vent

his anger at being disciplined, not to remedy any abuse of public trust.

See id. (holding that speech was not protected because it merely "reflect[ed] one employee's dissatisfaction with a transfer and an attempt

to turn that displeasure into a cause celebre" (footnote omitted)). We

therefore conclude that the context of Simons's speech indicates that

the speech did not address a matter of public concern.

We conclude that Simons can allege no set of facts in support of

his claim that his speech involved a matter of public concern. Taking

the factual allegations of the complaint and all reasonable inferences

that may be drawn therefrom in the light most favorable to Simons,

we are compelled to reach the conclusion that neither the content, the

form, nor the context of Simons's speech indicates that Simons was

speaking on "any matter of political, social, or other concern to the

community." Id. at 146. Because Simons's speech did not address a

matter of public concern, we need not consider the remaining two

prongs of the inquiry. See id. Accordingly, we affirm the district

court's dismissal of Simons's First Amendment claim.

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B.

As a corollary to his First Amendment claim, Simons asserts that

Appellees violated his Fourteenth Amendment right to substantive

due process by refusing to investigate his allegations against Nadler.

The district court granted Appellee's motion to dismiss this claim,

concluding that "[s]ince [Simons's] speech is not constitutionally protected, the accuracy of the speech is irrelevant." (J.A. at 57.) Simons

fails to assert any authority to support his argument that he has a due

process right to have his allegations against Nadler investigated by the

University. Accordingly, we affirm the dismissal of this claim by the

district court.

C.

Finally, Simons maintains that the district court erred in dismissing

his claim that Appellees violated his procedural due process right by

failing to process his grievance in a timely fashion. The University

has established a three-tiered grievance procedure, pursuant to which

the grievant first complains within the department. If not satisfied

with the resolution of the grievance within the department, the grievant may appeal to the dean of the department within 15 days. The

dean must rule on the grievance within 15 days of receiving a report

of the grievance from the department. Thereafter, the grievant may

appeal to the president of the University. The president must rule on

the grievance within 15 days of receiving the recommendation of an

appeal committee formed to review the grievance; however, the grievance procedure does not impose any limitation on the amount of time

the appeal committee may take to generate its report. Simons argues

that the district court erred in dismissing his due process claim

because he properly alleged in his complaint that he had a property

interest in his employment as a result of his status as a tenured professor,3

his suspension by the University constituted a deprivation of that

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3 Simons also asserts that his suspension also violated "a liberty interest

in exercising his First Amendment right to free speech." (Appellant's Br.

at 17.) We decline to address this argument as it was raised for the first

time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is

the general rule . . . that a federal appellate court does not consider an

issue not passed upon below.").

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property interest, and this deprivation occurred without due process

of law in that the appeal committee delayed in issuing a recommendation on Simons's grievance.

Appellees do not dispute that, as a tenured professor, Simons has

a property interest in his employment, nor do they contend that

Simons's suspension did not deprive him of a property right. Rather,

Appellees maintain that Simons has not stated a claim for violation

of his procedural due process right because the delay in the processing of his grievance did not injure Simons, and thus did not affect his

due process right. The district court relied on similar reasoning, concluding that Simons could not allege a claim pursuant to 42 U.S.C.A.

§ 1983 for violation of his procedural due process right because his

complaint contained no allegation that he was injured as a result of

the due process violation. We reject this reasoning. Simons's failure

to allege actual injury resulting from a violation of his procedural due

process right does not bar him from asserting a claim under § 1983;

it merely means that he may not recover more than nominal damages.

See Carey v. Piphus, 435 U.S. 247, 266 (1978) (holding that "the

denial of procedural due process [is] actionable for nominal damages

without proof of actual injury").

Nevertheless, we conclude that dismissal of Simons's due process

claim for failure to state a claim upon which relief can be granted was

appropriate. Simons's complaint alleges neither that the University's

grievance procedure provides an inadequate post-deprivation remedy

nor that Appellees failed to abide by the requirements of the grievance procedure. Rather, Simons asserts that his due process right was

violated by the delay of the appeal committee's decision. However,

not only is the complaint devoid of any allegation that the delay in the

appeal committee's decision was due to an intent to harm Simons,

such an intent cannot reasonably be inferred from the allegations of

the complaint. We are left, then, with the bare assertion that Simons

has been deprived of procedural due process merely by the length of

time taken to process his grievance, when the delay did not violate

any requirement of the grievance procedure. This assertion, even if

true, simply does not constitute a procedural due process claim.

Accordingly, we affirm the dismissal of this portion of Simons's complaint.

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III.

Having examined the factual allegations of the complaint, and all

inferences reasonably drawn therefrom, in the light most favorable to

Simons, we conclude that he has not stated a claim upon which relief

can be granted with respect to any of the counts of his complaint.

Accordingly, we affirm the district court's dismissal of his complaint.

AFFIRMED

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