OpenJurist

612 F2d 946 Patsy v. Florida International University

612 F.2d 946

24 Fair Empl.Prac.Cas. 1372

Georgia PATSY, Plaintiff-Appellant,
v.
FLORIDA INTERNATIONAL UNIVERSITY, Board of Regents of the
State of Florida, a body corporate, for and on
behalf of Florida International
University, Defendant-Appellee.

No. 79-2965

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Feb. 28, 1980.

Denis Dean, Sr., Miami, Fla., for plaintiff-appellant.

Mahoney, Hadlow & Adams, Jeffrey H. Klink, Jacksonville, Fla., Mahoney, Hadlow & Adams, John W. Kozyak, Miami, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before GODBOLD, REAVLEY and ANDERSON, Circuit Judges.

GODBOLD, Circuit Judge:

Appellant Georgia Patsy brought this action under 42 U.S.C. § 1983 after her applications for employment with the University had been rejected a number of times. The district court dismissed the suit on the grounds that Patsy had not exhausted her administrative remedies within the state university system, relying on Penn v. Schlesinger, 497 F.2d 970 (5th Cir. 1974) (en banc), Cert. denied, 426 U.S. 934, 96 S.Ct. 2646, 49 L.Ed.2d 385 (1976). Patsy appeals. We reverse and remand.

Exhaustion of administrative remedies is not a prerequisite of a § 1983 suit. See, e. g., Ellis v. Dyson, 421 U.S. 426, 432-33, 95 S.Ct. 1691, 1694-95, 44 L.Ed.2d 274 (1975) ("Exhaustion of state judicial or administrative remedies . . . was ruled not to be necessary, for we have long held that an action under § 1983 is free of that requirement"); Steffel v. Thompson, 415 U.S. 452, 472, 94 S.Ct. 1209, 1222, 39 L.Ed.2d 505 (1974) ("When federal claims are premised on 42 U.S.C. § 1983 . . . we have not required exhaustion of state judicial or administrative remedies"); Gibson v. Berryhill, 411 U.S. 564, 574, 93 S.Ct. 1689, 1695, 1696, 36 L.Ed.2d 488 (1973) ("But this Court has expressly held in recent years that state administrative remedies need not be exhausted where the federal court plaintiff states an otherwise good cause of action under 42 U.S.C. § 1983"); Hardwick v. Ault, 517 F.2d 295 (5th Cir. 1975). The district court's reliance on Penn v. Schlesinger, is misplaced, as that case involved § 1981, not § 1983.

Appellees also attempt to support the dismissal on grounds not considered by the district court. They argue that the University is not a "person" under § 1983, and that the Eleventh Amendment bars the suit. Since the district court did not rule on these contentions, we leave it to that court to address them first.

REVERSED and REMANDED.

*

Fed.R.App.Proc. 34(a), 5th Cir. Local R. 18