Alsup v. Northwest Shoals Community College et al
MEMORANDUM OPINION AND ORDER DISMISSING CASE that the defendants' motion for summary judgment is GRANTED and all of plaintiff's claims are DISMISSED with prejudice and costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 9/22/2016. (AHI)
2016 Sep-22 AM 10:02
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
COMMUNITY COLLEGE, et al., )
Civil Action No. 3:15-cv-00248-CLS
MEMORANDUM OPINION AND ORDER
Plaintiff, Alisha Alsup, commenced this action against the following
defendants: Northwest Shoals Community College (“the College”), where she
formerly was enrolled as a nursing student; Humphrey Lee, the President of the
College; Shelia Smith, the Director of Nursing at the College; Ann M. Bales, a
nursing instructor at the College; and Donna Roman-Jaynes, also a nursing instructor
at the College. She alleged that those defendants violated her statutory rights under
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans
with Disabilities Act of 1991, 42 U.S.C. § 12101 et seq. (“the ADA”), as well as her
constitutional rights to due process and equal protection of the laws. She also
asserted an independent claim for injunctive relief to remedy those alleged statutory
and constitutional violations.1 The case currently is before the court on defendants’
motion for summary judgment.2 Upon consideration of the motion, briefs, and
evidentiary submissions, the court concludes that the motion should be granted, and
that summary judgment should be entered in favor of defendants.
I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 provides that a court “shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In
other words, summary judgment is proper “after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-
See doc. no. 1 (Complaint). Plaintiff also asserted claims against several fictitious
defendants, but, “[a]s a general matter, fictitious-party pleading is not permitted in federal court.”
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (citing New v. Sports & Recreation, Inc.,
114 F.3d 1092, 1094 n. 1 (11th Cir. 1997)) (alteration supplied).
Doc. no. 15.
moving party are not unqualified, however. “[A]n inference is not reasonable if it is
‘only a guess or a possibility,’ for such an inference is not based on the evidence, but
is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321, 1324 (11th Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis and alteration
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)
(asking “whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law”).
II. FINDINGS OF FACT
Plaintiff, Alisha Alsup, began taking classes in pursuit of her Associate’s
Degree in Nursing at Northwest Shoals Community College (“the College”) during
the spring semester of 2011.3 She received and reviewed a copy of the College’s
Nursing Student Handbook, and she understood that she was subject to its policies
Doc. no. 17-1 (Deposition of Alisha Alsup), at 45.
and requirements.4 Among other things, the Nursing Student Handbook contains a
“Program Progression Policy,” which provides that:
In order to continue [i.e., remain enrolled] in the nursing program,
the student must:
Achieve a grade of C or better in all required general
education and nursing courses and maintain a 2.0
cumulative GPA at NW-SCC. . . .
Be accepted by clinical agencies for clinical experiences.
Earn a satisfactory clinical evaluation in all nursing
courses with a clinical component.
Maintain ability to meet essential functions for nursing
with or without reasonable accommodations.
Maintain current CPR at the health care provider level.
Maintain an adequate level of health including but not
limited to annual PPD, and freedom from chemical
dependency and/or mental disorder.
Doc. no. 17-2 (Nursing Student Handbook), at ECF 50 (alteration, ellipsis, and
emphasis supplied). “Nursing non-progression is defined as failure (D, F, WF) of one
or more courses in a semester OR withdrawal (W or WP) from one or more courses
in two separate semesters.”5
Id. at 46.
Doc. no. 17-2 (Nursing Student Handbook), at ECF 50. “ECF” is an acronym formed from
the initial letters of the name of a filing system that allows parties to file and serve documents
electronically (i.e., “Electronic Case Filing”). Bluebook Rule 7.1.4 allows citation to page numbers
generated by the ECF header. The Bluebook: A Uniform System of Citation, at 21 (Columbia Law
A student may apply for reinstatement to the nursing program within one year
of non-progression.6 The Reinstatement Policy states:
In order to be eligible for reinstatement, the student must:
apply for readmission to the College if not currently
receive unconditional admission status from the College;
demonstrate a 2.0 GPA in Nursing Program required
courses completed at current institution;
have no more than one non-progression since program
submit application requesting reinstatement to the Nursing
Program by the following deadlines:
Fall Semester – May 15
Spring Semester – October 15
Summer Semester – February 15
demonstrate the ability to meet essential functions for
nursing with or without reasonable accommodations;
demonstrate competency in previous nursing courses by
those students who have been out of progression for greater
than one semester; (This may be evaluated by testing
Review Ass’n et al. eds., 19th ed. 2010). Even so, the Bluebook recommends against citation to ECF
pagination in lieu of original pagination. Consequently, unless stated otherwise, this court will cite
to the original pagination in the parties’ pleadings. When the court cites to pagination generated by
the ECF header, it will, as here, precede the page number(s) with the letters “ECF.”
and/or skills validation)
be accepted by clinical agencies for clinical experiences;
demonstrate current CPR certification at the Health Care
adhere to nursing curriculum and/or program policies and
procedures effective at the point of reinstatement; and
update all drug testing and background screening
according to program policy.
Students dismissed from the program for disciplinary reasons and
or unsafe client care in the clinical area will not be allowed
reinstatement to the nursing program.
Reinstatement to the nursing program is not guaranteed and will
be allowed only one time.
Reinstatement will be denied due to, but not limited to, any of the
grade point average is less than 2.0 from courses completed
at the current institution;
refusal by clinical agencies to accept the student for
space unavailability; and or
more than twelve (12) months have elapsed since the
student has enrolled in a nursing course.
Doc. no. 17-2 (Nursing Student Handbook), at ECF 50-51 (emphasis supplied). The
Reinstatement Policy is followed by a note stating: “Northwest-Shoals Community
College reserves the right to remove from the program any student who is
refused use of facilities by clinical agency [sic].”7
The Nursing Student Handbook also contains a grievance policy, stating that:
A grievance is defined as a complaint for an act considered by an
individual to be unjust or unfair. These acts may include but are not
limited to a program policy/procedure; disagreement between student
and faculty; or an issue between/among students. It is not the intent of
this policy/procedure to usurp the College’s grievance policy and
procedure which is outlined in the Student Handbook located in the
Whenever an unjust act is perceived to have occurred, it is
customary for the aggrieved individual to resolve the problem by
following the chain of command. The chain of command in the
Department of Nursing is:
Faculty Member involved
Program Director/Co-Chair Health Studies– Nursing
Any unresolved issue following discussion with the Co-Chair
Health Studies – Nursing Division will be handled at the direction of the
Co-Chair and in accordance with grievance policies of the College
which includes the opportunity to file a formal complaint.
The College Grievance Policy/Procedure specifically addresses
grievances related to any form of discrimination (Title VII, Civil Rights
Act of 1964), sexual harassment (Title IX of the Educational
Doc. no. 17-2 (Nursing Student Handbook), at ECF 50-51 (all emphasis in original).
Amendments of 1972), and violation of the rights of the disabled
(Section 504 of the Rehabilitation Act of 1973) or the Americans with
Disabilities Act of 1999 [sic]. Please refer to the College’s Student
Handbook for additional/related information.
Doc. no. 17-2 (Nursing Student Handbook), at ECF 48-49 (ellipsis supplied).
The College’s general student grievance policy states that:
Complaints will be handled as expeditiously as possible.
Normally, complaints by students will be processed within 7 days of the
written report up to a maximum of 30 days; however, the student will be
notified in writing should the response require a longer evaluation. The
response will be made initially from the Department Head/Division
Chairperson involved and then from either the Associate Dean of
Students (student services issue) or the Vice President (academic
issues). The President of the College will make the final decision.
Doc. no. 18-5 (excerpts from Student Handbook), at ECF 66. The grievance policy
also directs that:
Any student who has a grievance against any other student or
member of the College faculty, staff, or administration concerning any
form of discrimination (Title VI, Civil Rights Act of 1964), sexual
harassment (Title IX of the Educational Amendments Act of 1972),
violation of the rights of the disabled (Section 504 of the Rehabilitation
Act of 1973) or the Americans with Disabilities Act of 1999 [sic] should
first attempt to resolve the matter with the individual involved. If for
some reason resolution of the grievance is not possible, the student
should make his/her grievance known to the immediate supervisor of the
individual against whom the student has a grievance, and/or to the
Associate Dean of Students in order to seek informal resolution of the
The policy also sets forth a series of formal procedures to follow in the event
informal resolution is not possible, because “[s]tudents and members of the College
faculty, staff, or administration are guaranteed procedural due process.”8 Because
plaintiff asserts that the College did not properly engage in the formal process
outlined in the handbook and, thereby, denied her constitutionally adequate process,
this court quotes the lengthy process in full:
Responsibilities of the Associate Dean of Students
The Associate Dean of Students or his/her designee, as the
representative of the President of the College, has the
responsibility of officially convening the college Student
Grievance Committee for the purpose of dealing with the
acts of discrimination (Title VI), sexual harassment (Title
IX), or violation of the rights of the disabled (Section 504).
(NOTE: In the event that a grievance is filed against the
Associate Dean of Students, the Vice President of
Instruction shall serve in lieu of the Associate Dean of
Students in the procedural due process outlined.) The
Associate Dean of Students will convene the college
Grievance Committee only after the following procedures
have been implemented.
Grievance charges made by a student must be
submitted to the Associate Dean of Students in
writing. The grievance must be signed and in as
much detail as possible.
The Associate Dean of Students will notify the
student or a member of the College faculty, staff, or
administration of the charge(s) against him/her
Doc. no. 18-5 (excerpts from Student Handbook), at ECF 67 (alteration supplied).
within five days (excluding Saturday, Sunday, and
holidays) of the hearing’s conclusion.
The initial presentation may be verbal.
The Associate Dean of Students may suspend
the student being charged, or the President of
the College or his/her designee may suspend
with pay the faculty member, staff member, or
administrator being charged until a hearing is
held and a decision rendered, if charges so
The Associate Dean of Students may then schedule
the time and location of the Grievance Committee
If the student or member of the College faculty,
staff, or administration who is charged with the
grievance so desires, he/she may request a
Grievance Committee hearing after initially meeting
with the Associate Dean of Students.
The Associate Dean of Students will make all reasonable
attempts to notify the student or member of the College
faculty, staff, or administration of the charges against
him/her and provide the time, date, and location of the
Student Grievance Committee hearing.
If after a reasonable attempt to notify the student, faculty
member, staff member, or administrator of the charges
against him/her and of the date, time, and location of the
Grievance hearing, and the Associate Dean of Students is
unable to do so, then the student may be suspended. The
President of the College or his/her designee may suspend
with pay the faculty member, staff member, or
administrator until a hearing is held and a decision
The Associate Dean of Students will review the decision
and recommendation(s) of the Student Grievance
The Associate Dean of Students, as deemed
appropriate by the President of the College, shall
implement the decision of the Student Grievance
The decision of the Grievance Committee shall be
official when put into writing by the Associate Dean
A copy of the written decision will be forwarded to
the President of the College and to the accused
within five days (excluding Saturday, Sunday, and
holidays) of the hearing’s conclusion.
Rights of Students/College Employees
A student does not forfeit any of his/her constitutional
rights upon his/her admission into the College.
A faculty member, staff member, or administrator does not
forfeit any of his/her constitutional rights upon
employment with the College.
A student or specific class of students who believe they
have been subjected to sexual harassment or discrimination
prohibited by Title VI, IX, or Section 504, of an act or
regulation may file a grievance against an individual, as
outlined in Part I.
The accused student may be advised by counsel of his/her
choice during the Student Grievance Committee hearing.
No more than two counsel per accused may be present
during a Grievance hearing.
Refusal by the student to answer questions shall not be
construed as an admission of guilt.
The student may appeal the decision of the Student
Grievance Committee to the President of the College (See
Section IV for procedure.)
Student Grievance Committee Composition and Responsibilities
The Student Grievance Committee shall consist of five
members appointed by the Associate Dean of Students.
The Chairperson shall be the Associate Dean of Students
or his/her designee.
A quorum shall consist of four members and the
chairperson. The hearing may not be conducted without a
All Student Grievance Committee hearings shall be
confidential and closed to all persons except the following:
The student or college employee
Witnesses who shall:
Give testimony singularly and in the absence
of other witnesses;
Leave the committee meeting room
immediately upon the completion of the
All hearings will be taped and minutes recorded. Tapes,
hearing minutes, and evidence will become the property of
the College and access to them will be determined by the
Vice President. All hearing case files will be located and
archived in the Office of the Associate Dean of Students.
Within five (5) working days after the decision has been
reached by the committee, the Chairperson of the Student
Grievance Committee shall send a certified letter to the
student or employee’s last known address to provide
written notification of the committee’s decision.
Decisions and recommendations will be forwarded to the
Associate Dean of Students for official confirmation and
The decision reached by the Student Grievance Committee
shall be by a majority vote.
Decisions and recommendations issued by the Student
Grievance Committee shall be implemented within the
confines of the laws of the State of Alabama and of the
laws of the United States of America.
Right of Appeal
The President of the College shall be the appeal authority
in upholding, rejecting, or modifying the decision and
recommendations of the institutional Student Grievance
The charged student, faculty member, staff member,
or administrator may file a written request with the
Associate Dean of Students of the College
requesting that the President of the College review
the decision of the Student Grievance Committee.
The written request must be filed within five days
(excluding Saturday, Sunday, and holidays) of the
If the decision of the Student Grievance Committee does
not satisfy the complaint and should the grievance allege
discrimination (Title VI), sexual harassment (Title XI), or
violation of the rights of the disabled (Section 504), the
complainant may file a written grievance with:
The Alabama State Board of Education as defined in
Section 616, p. 104-105 of the State Policy and
The regional office of the Office for Civil Rights of
the U.S. Department of Education within 180 days
of the act.
The Equal Employment Opportunity Commission
within 180 days of the decision issued by the
The College complies with non-discriminatory regulations under
Title VI and Title VII of the Civil Rights Act of 1964; Title IX
Education Amendment of 1972; and Section 504 of the Rehabilitation
Act of 1973; and the Americans with Disabilities Act (ADA) of 1990.
Doc . no. 18-5 (excerpts from Student Handbook), at ECF 67-68. The policy also
provides contact information for the Associate Dean of Students.9
Plaintiff successfully completed all of her coursework from the spring semester
of 2011 through the fall semester of 2012.10 During the spring semester of 2013,
Doc. no. 18-5 (excerpts from Student Handbook), at ECF 68.
Doc. no. 17-1 (Deposition of Alisha Alsup), at 50-53.
which would have been her final semester in the Associate’s Degree program,
plaintiff was enrolled in two classes: Nursing 203 (Nursing Through the Lifespan III)
and Nursing 204 (Role Transition for the Registered Nurse).11 Nursing 203 included
both a classroom component and a clinical component. 12 The clinical component of
the course, which provided students with “hands on learning experience in the actual
care of patients,” was conducted at various external medical facilities, including
hospitals, with which the College had clinical agreements.13 Despite the off-site
locations, the clinical component of Nursing 203 still was supervised by an instructor
from the College.14 The clinical component of Nursing 204, on the other hand, was
supervised by a nurse preceptor at the hospital or other clinical agency at which the
student was working.15
Plaintiff was assigned to perform the clinical component of her Nursing 203
course and the preceptorship component of her Nursing 204 course at Eliza Coffee
Memorial Hospital (“Eliza Coffee”) in Florence, Alabama.16
Sally Franks, a
Id. at 54.
Id. at 49-54. See also doc. no. 18-6 (Affidavit of Shelia Smith), at 1 (“Various courses in
the NWSCC ADN program include both a lecture/classroom component and a clinical component.”).
Doc. no. 18-6 (Affidavit of Shelia Smith), at 1. See also doc. no. 17-1 (Deposition of
Alisha Alsup), at 48.
Doc. no. 18-6 (Affidavit of Shelia Smith), at 2.
Doc. no. 17-1 (Deposition of Alisha Alsup), at 56-57; doc. no. 18-6 (Affidavit of Shelia
Smith), at 3-4.
registered nurse employed at Eliza Coffee, served as plaintiff’s nurse preceptor for
Plaintiff arrived at Eliza Coffee at approximately 6:00 p.m. on February 9,
2013, to begin a twelve-hour shift in connection with her preceptorship.18 Shortly
after taking a meal break at 4:00 a.m. on February 10, she fainted while sitting at the
break room table.19 Franks and other nursing personnel tended to plaintiff by
checking her blood sugar, and then they took her to the emergency room, where she
was attended by Dr. Frederick Epstein.20 The emergency room intake questionnaire
stated that the reasons for the visit were slurred speech, high blood sugar, chest pain,
and passing out.21 Plaintiff’s urine tested positive for amphetamines and barbituates,
although the emergency room records do not reflect the exact levels of each substance
in her body.22 Plaintiff had valid prescriptions for medications containing both
amphetamines and barbituates on February 10, 2013,23 and she had provided a list of
Doc. no. 18-6 (Affidavit of Shelia Smith), at 4.
Doc. no. 18-10 (Affidavit of Sally Franks), at 1. See also doc. no. 17-1 (Deposition of
Alisha Alsup), at 26-27.
Doc. no. 18-10 (Affidavit of Sally Franks), at 2. See also doc. no. 17-1 (Deposition of
Alisha Alsup), at 35.
Doc. no. 18-10 (Affidavit of Sally Franks), at 2. See also doc. no. 17-1 (Deposition of
Alisha Alsup), at 35-36.
Doc. no. 18-9 (Eliza Coffee Memorial Hospital Emergency Room Records), at ECF 21.
Id. at ECF 23.
Doc. no. 22-7 (Affidavit of Alisha Alsup), at 1.
her medications to one of her instructors at the College during January of 2013.24 A
CT scan of plaintiff’s brain and an x-ray of her chest were normal.25 Dr. Epstein’s
assessments upon plaintiff’s release from the emergency room were syncope and
polydrug intoxication.26 Plaintiff was discharged from the emergency room on
February 10, 2013, at 8:25 a.m.27
A representative from Eliza Coffee informed Shelia Smith on February 22,
2013, that plaintiff would not be allowed to return to the hospital to complete the
clinical or preceptorship components of any of her courses. Ms. Smith asked to have
that decision expressed in writing, and she mentioned to the Eliza Coffee
representative that the hospital’s decision would prevent plaintiff from being able to
continue her coursework at the College. Even so, Eliza Coffee decided to stand by
its decision, and it memorialized that decision in writing on February 28, 2013.28
Doc. no. 17-1 (Deposition of Alisha Alsup), at 45.
Doc. no. 18-9 (Eliza Coffee Memorial Hospital Emergency Room Records), at ECF 25-26.
Doc. no. 17-1 (Deposition of Alisha Alsup), at 35.
Doc. no. 18-6 (Affidavit of Shelia Smith), at 4; doc. no. 18-1 (Deposition of Shelia Smith),
at 46-48. Plaintiff objects that the memorandum memorializing Eliza Coffee’s decision to refuse
plaintiff the right to access its facility was not signed or dated and, therefore, it cannot be
authenticated. That objection is not persuasive. As an initial matter, the memorandum is dated
February 28, 2013. Moreover, the document states that it was sent from the Eliza Coffee Memorial
Hospital Human Resources Department. See doc. no. 17-2, at ECF 14 (February 28, 2013
memorandum). Plaintiff has not explained why the memorandum would need to also be handsigned, and even if it did, she has not explained why it could not be authenticated through an
appropriate witness at trial.
Smith met with plaintiff on March 1, 2013, to inform her of Eliza Coffee’s
decision not to allow her to return to her preceptorship. Smith advised plaintiff “that
as a result of [Eliza Coffee’s] decision she could not progress in the [Associate’s
Degree in Nursing] program.”29 She also told plaintiff that “as a result of [Eliza
Coffee’s] decision she had 3 options, withdraw from her courses before March 18,
2013, which would allow [her] to preserve her grade point average, withdraw after
March 18, 2013 and receive either a WP or WF, or not withdraw and receive an F.”30
Plaintiff asked if she could complete her preceptorship at another hospital so that she
could earn the credits needed for graduation, but Smith said no.31 Even so, Smith
acknowledged during her deposition that the College does not have a written policy
stating that a nursing student who is denied access to one clinical site also will be
denied access to all other clinical sites.32
Faced with the choices Smith had presented to her, plaintiff withdrew from all
of her courses at the College on March 15, 2013.33 As a result, she was unable to
graduate with her Associate’s Degree in Nursing.34
Doc. no. 18-6 (Affidavit of Shelia Smith), at 4 (alterations supplied).
Id. at 4-5 (alterations supplied).
Doc. no. 17-1 (Deposition of Alisha Alsup), at 80-81.
Doc. no. 18-1 (Deposition of Shelia Smith), at 91-92.
Doc. no. 18-6 (Affidavit of Shelia Smith), at 5. See also doc. no. 17-1 (Deposition of
Alisha Alsup), at 54.
Doc. no. 22-7 (Affidavit of Alisha Alsup), at 1.
Plaintiff’s attorney sent a letter to Shelia Smith, in her capacity as Director of
Nursing Education for the College, on March 18, 2013. The attorney described the
letter as an “appeal,” and he requested that plaintiff be allowed to complete her
nursing school curriculum.35
Plaintiff’s attorney sent a second letter to Dr. Glenda Colagross, the College’s
Vice President of Instruction, on April 1, 2013, regarding plaintiff’s “dismissal from
the Northwest Shoals Nursing Program.”36 He noted that he had not received a
response from Shelia Smith to his March 18th letter, and further stated:
It is my understanding that you are the person to whom any
further appeal must be taken. We are, therefore, requesting an appeal
hearing before you in regard to Ms. Alsup’s termination from nursing
school. It is my understanding that you are not only legally authorized
to conduct such a hearing, but that you are legally mandated to do so.
Please contact me at the address or telephone number shown
below so that we may schedule this meeting as soon as possible. I look
forward to hearing from you.
Doc. no. 22-9 (April 1, 2013 letter from Steve R. Graham to Dr. Glenda Colagross),
Dr. Colagross responded to plaintiff’s attorney by letter dated April 3, 2013.
Doc. no. 22-8 (March 18, 2013 letter from Steve R. Graham to Shelia Smith). See id. at
8 (“I look forward to hearing from you in regard to our requested appeal.”) (emphasis supplied).
Doc. no. 22-9 (April 1, 2013 letter from Steve R. Graham to Dr. Glenda Colagross), at 1.
Ms. Alisha Alsup was not dismissed from the Northwest-Shoals
Nursing Program. After an incident which occurred during her
preceptor experience at ECM Hospital, the College received a letter
from the hospital exercising their right to refuse the use of their facility
to Ms. Alsup for any further clinical experience. The College has an
agreement with all of its clinical sites that if a student is removed from
any clinical site, that particular student will not be sent to another site
to complete their clinical experience. After receiving the letter from the
hospital, Ms. Sheila [sic] Smith, the Director of Nursing at NorthwestShoals, met with Ms. Alsup and discussed her options which were to
either remain in the courses and receive a failing grade because she
would not be able to complete her clinical experience or to withdraw
from the courses and receive a grade of ‘W’ if she withdrew before the
deadline (March 18, 2013) after which a grade of “WF” (withdrawal
failing) would have to be assigned. During that meeting Ms. Smith also
reviewed with Ms. Alsup her academic progress in the two nursing
courses up to that point in the semester, and based on her grades in the
two courses up to that point and the fact that she could not be placed
back in a clinical facility, Ms. Smith suggested to her that she withdraw
from her courses rather than remain enrolled because a grade of ‘W’
does not affect a student’s GPA (grade point average) in a negative
manner like a grade of ‘F’ or ‘WF’ would affect it.
Ms. Alisha Alsup voluntarily withdrew from her nursing courses,
NUR 203 and NUR 204, on March 15, 2013 and received a grade of ‘W’
in both courses which did not negatively affect her GPA. If Ms. Alsup
had chosen to remain in the courses and receive ‘F’s, the College would
have dismissed her from the program at that point.
Whether a student voluntarily withdraws from all courses or the
student is dismissed from the Program by the College, according to the
Student Handbook for the Northwest-Shoals Nursing Program, the
Program Progression Policy list[s] six standards that must be met. The
first standard states that a student must achieve a grade of ‘C’ or better
in all required general education and nursing courses and maintain a 2.0
cumulative GPA, and the second standard states that a student must be
accepted by clinical agencies for clinical experiences. Thus, in order to
return to the Nursing Program, Ms. Alsup has up to one year to follow
the Reinstatement Policy for which the steps are outlined in the Nursing
Handbook, however, one of the requirements in this policy is to ‘be
accepted by clinical agencies for clinical experiences.’
Doc. no. 22-10 (April 3, 2013 Letter from Dr. Glenda Colagross to Steve R. Graham),
at 1-2 (alterations and emphasis supplied).
On August 2, 2013, plaintiff, through a different attorney, served upon Dr.
Humphrey Lee, the College’s President, a document entitled “Grievance/Complaint.”
The Grievance set forth the circumstances leading to plaintiff no longer being a
student in the Nursing Program, and it set forth three “Counts” of the type that would
be found in a judicial complaint: i.e., (1) “Section 504 of the Rehabilitation Act of
1973”; (2) “Due Process”; and (3) “Equal Protection.”37
By letter dated August 29, 2013, Tom Carter, the College’s Assistant Dean of
Recruitment, Admissions and Financial Aid, informed plaintiff that he had reviewed
her grievance, but concurred with Shelia Smith’s decision. Carter also informed
plaintiff of her right to appeal his decision by responding to his letter within five
days. He stated: “Your appeal will be reviewed by the College disciplinary
committee. Please review the college student handbook for the disciplinary appeals
Doc. no. 22-11 (Grievance/Complaint).
Doc. no. 22-12, at ECF 1 (August 29, 2013 letter from Tom Carter to Alisha Alsup).
Plaintiff’s attorney sent Carter a letter on September 5, 2013, providing notice
of plaintiff’s appeal of the decision announced in his August 29 letter. Plaintiff
requested a hearing on the appeal.39
Charles T. Taylor, the College’s Associate Dean of Students, sent plaintiff a
letter on September 12, 2013, acknowledging receipt of her appeal, and informing her
of a “Grievance Committee meeting” to hear her appeal on September 24th. Taylor
also attached copies of pages from the College’s student handbook that discussed the
grievance process.40 The hearing later was rescheduled twice at the request of
plaintiff’s attorney. It eventually took place on November 5, 2013.41
Plaintiff testified during her deposition that the College followed its student
grievance policy in addressing her grievance. She was represented by counsel during
the hearing, and she was allowed to present whatever evidence she wanted in support
of her grievance.42
Following the hearing, Taylor sent plaintiff a letter on November 12, 2013,
Id. at ECF 2 (September 5, 2013 letter from James Irby to Tom Carter).
Doc. no. 22-13 (September 12, 2013 letter from Charles T. Taylor to Alisha Alsup), at ECF
See doc. no. 22-14 (October 17, 2013 letter from Charles T. Taylor to Alisha Alsup); doc.
no. 22-15 (October 29, 2013 letter from Charles T. Taylor to Alisha Alsup); doc. no. 22-16
(November 12, 2013 letter from Charles T. Taylor to Alisha Alsup).
Doc. no. 17-1 (Deposition of Alisha Alsup), at 104-05.
After a careful review of the evidence presented, the committee
voted to deny your request for readmission into the Northwest-Shoals
Community College Nursing Program. If you disagree with this
decision, you may contact me and request that the President of the
College review the decision of the Student Grievance Committee.
Doc. no. 22-16 (November 12, 2013 letter from Charles T. Taylor to Alisha Alsup).
Plaintiff responded to Taylor’s letter on November 19, 2013, requesting a review of
the Grievance Committee’s decision by the College’s President.43 College President
Humphrey Lee sent plaintiff a letter on November 21, 2013, stating: “After careful
review of all of the documents related to the grievance filed by you against
Northwest-Shoals Community College, I uphold with [sic] the decision made by the
It is difficult to decipher the arguments plaintiff has made in response to
defendants’ motion for summary judgment. To the extent that she is attempting to
raise an independent state law claim based upon the Alabama Supreme Court’s
decision in Mustell v. Rose, 211 So. 2d 489 (Ala. 1968), she may not do so for the
first time in her response brief. See Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1313 (11th Cir. 2004) (“The central issue in this case is whether a non-moving
Doc. no. 22-17 (November 19, 2013 letter from James Irby to Charles T. Taylor).
Doc. no. 22-18 (November 21, 2013 letter from Dr. Humphrey Lee to Alisha Alsup), at
party plaintiff may raise a new legal claim for the first time in response to the
opposing party’s summary judgment motion. We hold it cannot.”).
Moreover, plaintiff’s response brief does not mention anything about the
Rehabilitation Act, the ADA, or the constitutional right to equal protection, despite
defendants’ well-supported arguments that summary judgment should be granted on
each of those claims. The effect of plaintiff’s failure to address defendants’
arguments is detrimental: issues and contentions not raised in a party’s brief are
deemed abandoned. See, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1027 (11th
Cir. 2000) (en banc) (“Parties opposing summary judgment are appropriately charged
with the responsibility of marshaling and presenting their evidence before summary
judgment is granted, not afterwards.”); Road Sprinkler Fitters Local Union No. 669
v. Independent Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (holding that a
district court can “properly treat as abandoned a claim alleged in the complaint but
not even raised as a ground for summary judgment”) (citing Lazzara v. Howard A.
Esser, Inc., 802 F.2d 260, 269 (7th Cir. 1986) (holding that a ground not pressed in
opposition to a motion for summary judgment is to be treated by the district court as
In opposing a motion for summary judgment, a party may not rely on his
pleadings to avoid judgment against him. There is no burden on the
district court to distill every potential argument that could be made
based upon the materials before it on summary judgment. Rather, the
onus is upon the parties to formulate arguments; grounds alleged in the
complaint but not relied upon in summary judgment are deemed
abandoned. . . .
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (citations
and internal quotation marks omitted).
Thus, the only claims that remain for this court’s consideration are plaintiff’s
claims for due process and injunctive relief.
It is unclear whether plaintiff intended to assert a claim for her rights to
substantive due process, procedural due process, or both.45 Out of an abundance of
caution, the court will address both.
Procedural due process
The Due Process Clause of the Fourteenth Amendment provides
that a state shall not “deprive any person of life, liberty, or property,
without due process of law.” U.S. Const. amend. XIV, § 1. “[A] § 1983
claim alleging a denial of procedural due process requires proof of three
elements: (1) a deprivation of a constitutionally-protected liberty or
property interest; (2) state action; and (3) constitutionally-inadequate
process.” Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).
J.R. v. Hansen, 736 F.3d 959, 965 (11th Cir. 2013) (alteration in original). Even
Plaintiff’s complaint is no help. She states only that she “has been made to suffer a
violation of her rights to Due Process as provided for under the First and Fifth Amendments to the
Constitution of the United States as made applicable to the states by the Fourteenth Amendment to
the Constitution of the United States.” Doc. no. 1 (Complaint), ¶ 59.
assuming that plaintiff had a constitutionally protected property interest in her
continued enrollment at the College,46 she was provided constitutionally adequate
process before she was deprived of that interest.
The College disputes that plaintiff was dismissed from the nursing program,
and asserts, instead, that she chose to withdraw. For purposes of the present analysis,
however, the court will credit plaintiff’s counter-argument that she was left with no
real choice but to withdraw, and that her withdrawal thus effectively amounted to a
dismissal. In any event, plaintiff’s non-continuance in the nursing program was for
academic, as opposed to disciplinary, reasons: i.e., her inability to gain access to the
necessary facilities to complete her clinical requirements. See, e.g., Ekmark v.
It is not entirely clear whether the Eleventh Circuit recognizes such an interest. The
Eleventh Circuit held in Barnes v. Zaccari, 669 F.3d 1295 (11th Cir. 2012), that “no tenet of
constitutional law is more clearly established than the rule that a property interest in continued
enrollment in a state school is an important entitlement protected by the Due Process Clause of the
Fourteenth Amendment.”) (citing Goss v. Lopez, 419 U.S. 565, 574, 576 n. 8 (1975)). The Barnes
court had already determined that the school’s student handbook and code of conduct created a
legitimate claim of entitlement to continued enrollment. A similar conclusion could be reached here,
because the handbook states that “[s]tudents and members of the College faculty, staff, or
administration are guaranteed procedural due process.” Doc. no. 18-5 (excerpts from Student
Handbook), at ECF 67 (alteration supplied).
In a subsequent unpublished decision, however, the Eleventh Circuit observed that “[t]he
Supreme Court has not addressed whether students have a constitutionally-protected liberty or
property interest in continued enrollment at public educational institutions.” Rollins v. Bd. of
Trustees of the Univ. of Alabama, No. 14-14882, 2016 WL 1399375, *15 (11th Cir. Apr. 11, 2016)
(alteration supplied). It is not necessary to decide whether those two panel decisions are in conflict,
and if so, which one should control. Instead, this court, like the Eleventh Circuit ultimately did in
Rollins, will simply assume that a protected property right exists and move on to evaluate whether
plaintiff was provided constitutionally adequate process. See id. at *15 (stating that the Supreme
Court typically “presume[s] the existence of such a right”) (alteration supplied).
Matthews, 524 F. App’x 62, 63-64 (5th Cir. 2013) (“Bready and Matthew’s
determination that Ekmark was unable to fulfill the clinical residency requirements,
and was thus unqualified for certification, was academic in nature.”).
[A] student dismissed from a public educational institution for
academic reasons is entitled to less process than a student dismissed for
disciplinary reasons. Haberle v. Univ. of Ala., 803 F.2d 1536, 1539
(11th Cir.1986). In fact, the Constitution does not require schools to
hold formal hearings for academic dismissals. Id.; see also Bd. of
Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 90, 98 S. Ct. 948,
955, 55 L. Ed. 2d 124 (1978). Procedurally, however, a school is
required to engage in a “careful and deliberate” decision-making
process. Haberle, 803 F.2d at 1539 (quoting Horowitz, 435 U.S. at 85,
98 S. Ct. 948). As the Supreme Court explained in Horowitz, 435 U.S.
at 91, 98 S. Ct. 948, “[b]y and large, public education in our Nation is
committed to the control of state and local authorities.” (internal citation
and quotation marks omitted) Courts are reticent to intrude on that
historic control. Id.
Rollins v. Board of Trustees of the University of Alabama, No. 14-14882, 2016 WL
1399375, at *5 (11th Cir. Apr. 11, 2016) (first alteration supplied, second alteration
Thus, the relevant question is not whether the College precisely followed its
grievance procedures, or even whether it provided plaintiff with the most thorough
process possible. Instead, the court must ask whether the College met the more
minimal standard of providing plaintiff with a “careful and deliberate” decisionmaking process. It unquestionably did. In fact, plaintiff received much more than the
minimum. She received a full administrative hearing, during which she was
represented by counsel and had the opportunity to present evidence.
Plaintiff’s only complaint about the process provided to her is that the hearing
was delayed “for 190 days.”47 The date that fell 190 days before November 5, 2013
(the date of the hearing) was April 29, 2013. It is difficult to discern the significance
of that date, because nothing related to plaintiff’s grievance occurred then. Instead,
plaintiff first sent a letter to Shelia Smith on March 18, 2013, and then another letter
to Dr. Colagross on April 1. Plaintiff did not immediately receive a hearing, but Dr.
Colagross considered plaintiff’s claims and responded on April 3, two days after the
second letter, by explaining that plaintiff had not been dismissed from the nursing
program, and informing plaintiff’s attorney of plaintiff’s obligation to follow the
Reinstatement Policy if she wanted to be considered for readmission to the nursing
program. Plaintiff did not take any additional action until August 2, 2013, four
months later, when she served a formal Grievance on College President Humphrey
Lee. Tom Carter, the Assistant Dean of Recruitment, Admissions and Financial Aid,
responded to her request on August 29th, stating that he agreed with the decision to
remove plaintiff from the nursing program, and notifying plaintiff of her right to
Doc. no. 22 (Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary
Judgment), at ECF 16 (“A reasonable jury could conclude that the actions of NWSCC in denying
Alsup a hearing for 190 days in clear violation of their written policy constituted a denial of due
appeal to the College disciplinary committee. When plaintiff exercised that right on
September 5, 2013, the Grievance Committee scheduled a hearing for September 24,
less than three weeks later. The fact that the hearing was delayed for 43 days, or until
November 5th, was not the fault of the College; it was the result of plaintiff’s requests
for continuances. In fact, of the 190 days about which plaintiff complains, 139 days
were the result of plaintiff’s own delay or inaction.48
Moreover, even if plaintiff did suffer a violation of her procedural due process
rights, that violation would not be actionable in federal court because the Alabama
state courts provide an adequate remedy. The Eleventh Circuit has held that
“only when the state refuses to provide a process sufficient to remedy
the procedural deprivation does a constitutional violation actionable
under section 1983 arise.” [McKinney v. Pate, 20 F.3d 1550, 1557 (11th
Cir. 1994) (en banc)]. It is the state’s failure to provide adequate
procedures to remedy the otherwise procedurally flawed deprivation of
a protected interest that gives rise to a federal procedural due process
claim. See id.; see also Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir.
1999); Harris v. Board of Educ., 105 F.3d 591, 596 (11th Cir. 1997).
This rule (that a section 1983 claim is not stated unless inadequate state
procedures exist to remedy an alleged procedural deprivation)
recognizes that the state must have the opportunity to “remedy the
procedural failings of its subdivisions and agencies in the appropriate
fora — agencies, review boards, and state courts” before being subjected
to a claim alleging a procedural due process violation. See McKinney,
Ninety-six days passed between April 29, 2013 (the date that falls 190 days before
plaintiff’s hearing date), and August 2, 2013 (the date on which plaintiff, through her new attorney,
submitted a formal Grievance to the College President). An additional 43 days passed between
September 24, 2013, plaintiff’s original hearing date, and November 5, 2013, the date on which the
hearing finally was held after being continued twice at plaintiff’s request.
20 F.3d at 1560; see also Horton v. Board of County Comm’rs, 202 F.3d
1297, 1300 (11th Cir. 2000).
Assuming a plaintiff has shown a deprivation of some right
protected by the due process clause, we — when determining if a
plaintiff has stated a valid procedural due process claim — look to
whether the available state procedures were adequate to correct the
alleged procedural deficiencies. See McKinney, 20 F.3d at 1563; see
also Bell v. City of Demopolis, Alabama, 86 F.3d 191, 192 (11th Cir.
1996); Narey v. Dean, 32 F.3d 1521, 1527-28 (11th Cir. 1994). If
adequate state remedies were available but the plaintiff failed to take
advantage of them, the plaintiff cannot rely on that failure to claim that
the state deprived him of procedural due process. See McKinney, 20
F.3d at 1565 (“The fact that [McKinney] failed to avail himself of the
full procedures provided by state law . . . does not constitute a sign of
their inadequacy.”); Bell, 86 F.3d at 192; Narey, 32 F.3d at 1528. And,
to be adequate, the state procedure need not provide all the relief
available under section 1983. See McKinney, 20 F.3d at 1564. Instead,
the state procedure must be able to correct whatever deficiencies exist
and to provide plaintiff with whatever process is due.
Cotton v. Jackson, 216 F.3d 1328, 1330-31 (11th Cir. 2000) (first alteration supplied,
second alteration in original). As defendants pointed out in their reply brief,
“Alabama’s writ of certiorari provides an adequate post deprivation remedy for a
procedural deprivation.”49 See Bell v. City of Demopolis, 86 F.3d 191, 192 (11th Cir.
1996). See also Cotton, 216 F.3d at 1331 (“We agree with Defendant that certiorari
is generally an adequate state remedy.”).
Substantive due process
Doc. no. 32 (Defendants’ Reply Brief in Support of Motion for Summary Judgment), at
Substantive due process includes both the protections of most of
the Bill of Rights, as incorporated through the Fourteenth Amendment,
and also the more general protection against “certain arbitrary, wrongful
government actions regardless of the fairness of the procedures used to
implement them.” [Zinermon v. Burch, 494 U.S. 113, 125 (1990)]
(quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88
L. Ed. 2d 662 (1986)) (internal quotation marks omitted); see also
Collins v. City of Harker Heights, 503 U.S. 115, 125, 112 S. Ct. 1061,
1068, 117 L. Ed. 2d 261 (1992).
DeKalb Stone, Inc. v. County of DeKalb, Georgia, 106 F.3d 956, 959 (11th Cir.
Plaintiff does not allege the violation of one of her fundamental constitutional
rights, nor could she, because there is no fundamental right to a public education. See
San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 33-39 (1973)
(elementary and secondary school); Federov v. Board of Regents of University of
Georgia, 194 F. Supp. 2d 1378, 1391 (S.D. Ga. 2002) (post-secondary school).
Instead, she asserts that the College’s decision to not allow her to continue in the
nursing program violated her substantive due process rights because it was arbitrary,
capricious, and made in bad faith. That argument also is foreclosed by Eleventh
Circuit case law. In Greenbriar Village, L.L.C. v. Mountain Brook City, 345 F.3d
1258, 1263 (11th Cir. 2003), while addressing a municipality’s denial of a landdisturbance permit, the Court stated:
Greenbriar contends that the City’s action with respect to its Permit was
unconstitutionally irrational and arbitrary, and that the substantive
component of the Due Process Clause protects generally against
arbitrary and irrational action by the government. We specifically
discussed the dangers of broadening the scope of substantive due
process in this fashion in McKinney. See 20 F.3d at 1559; see also
DeKalb Stone, 106 F.3d at 959 n. 6, 960. According to McKinney,
non-legislative deprivations of state-created rights, which would include
land-use rights, cannot support a substantive due process claim, not even
if the plaintiff alleges that the government acted arbitrary [sic] and
irrationally. 20 F.3d at 1559. Constitutional due process is satisfied for
these deprivations when proper procedures are employed. Id.
Greenbriar Village, 345 F.3d at 1263 (emphasis supplied).50 In other words, such a
claim is more appropriately analyzed under the framework of procedural due process,
not substantive due process. As discussed above, the College employed proper
procedures before making a final determination that plaintiff could not continue in
the nursing program.
Moreover, even if plaintiff could rely upon a theory of arbitrary and capricious
The decision not to allow plaintiff to continue in the nursing program was of an executive,
not a legislative nature. As the Eleventh Circuit observed in McKinney v. Pate, 20 F.3d 1550, 1557
(11th Cir. 1994):
Executive acts characteristically apply to a limited number of persons (and
often to only one person); executive acts typically arise from the ministerial or
administrative activities of members of the executive branch. The most common
examples are employment terminations, e.g., Roth, 408 U.S. at 5066, 92 S. Ct. at
2703. . . .
Legislative acts, on the other hand, generally apply to a larger segment of —
if not all of — society; laws and broad-ranging executive regulations are the most
McKinney, 20 F.3d at 1557 n.9 (ellipses supplied). The decision not to allow plaintiff to continue
in the nursing program applied only to her.
decisionmaking to support her substantive due process, there is no evidence to
support such a theory. “[O]nly the most egregious official conduct can be said to be
‘arbitrary in the constitutional sense . . . .’” County of Sacramento v. Lewis, 523 U.S.
833, 846 (1998), abrogated on other grounds by Saucier v. Katz, 533 U.S. 194 (2001)
(quoting Collins v. Harker Heights, 503 U.S. 115, 129 (1992)) (alteration supplied).
Plaintiff asserts that defendants’ decision was arbitrary and capricious because there
is not a “written policy holding that [a] student barred from one facility is then barred
from all other preceptorship cites [sic].”51 It is true that there is no written policy, but
the absence of such a writing hardly indicates arbitrary and capricious behavior. To
the contrary, it seems entirely reasonable, not arbitrary or capricious, that the College
would not want to jeopardize its working relationships with clinical sites, or its
reputation in the health care community, by arranging preceptorships for students
who have been rejected by other facilities. Moreover, the nursing handbook explicitly
states that the College reserves the right to remove from the program any student who
is refused use of facilities by a clinical agency, and it makes acceptance by clinical
agencies a condition of reinstatement for any student who has been dismissed.
In summary, plaintiff cannot proceed on her claims for either procedural or
substantive due process, and summary judgment must be granted on both those
Doc. no. 22 (Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary
Judgment), at ECF 15 (alterations supplied).
Summary judgment also must be granted on plaintiff’s claim for injunctive
relief. As the Eleventh Circuit has stated:
any motion or suit for a traditional injunction must be predicated upon
a cause of action, such as nuisance, trespass, the First Amendment, etc.,
regarding which a plaintiff must show a likelihood or actuality of
success on the merits. There is no such thing as a suit for a traditional
injunction in the abstract. For a traditional injunction to be even
theoretically available, a plaintiff must be able to articulate a basis for
relief that would withstand scrutiny under Fed. R. Civ. P. 12(b)(6)
(failure to state a claim). See, e.g., Paisey v. Vitale, 807 F.2d 889, 892
(11th Cir. 1986) (“[T]he district court did not err in denying [the
plaintiff’s] motion for a preliminary injunction and dismissing the
injunctive count of [the plaintiff’s] complaint because [the plaintiff] has
failed to state a claim for relief. . . .”).
Considering the issue from another perspective, a traditional
injunction is a remedy potentially available only after a plaintiff can
make a showing that some independent legal right is being infringed —
if the plaintiff’s rights have not been violated, he is not entitled to any
relief, injunctive or otherwise.
Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1097-98 (11th Cir. 2004)
(alterations and ellipses in original). Because there is no remaining cause of action
upon which plaintiff can proceed past summary judgment, plaintiff also cannot
proceed on her claim for injunctive relief.
IV. CONCLUSION AND ORDER
In accordance with the foregoing, it is ORDERED that defendants’ motion for
summary judgment is GRANTED, and all of plaintiff’s claims are DISMISSED with
prejudice. Costs are taxed to plaintiff. The Clerk is directed to close this file.
DONE this 22nd day of September, 2016.
United States District Judge
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