Flunder v. Arizona Board of Regents et al

Filing 27

ORDER that Defendants' motions to dismiss (Docs. 9 , 11 ) are granted. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 4/7/2014. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gerald L. Flunder,

No. CV-13-01893-PHX-DGC
Plaintiff,

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v.

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Arizona Board of Regents, et al.,

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ORDER

Defendants.

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Defendants Dr. Cummings and Dr. Chhabra (“Doctor Defendants”) have filed a

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motion to dismiss the claims against them. Doc. 9. The Arizona Board of Regents and

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other Defendants affiliated with Arizona State University (“ASU”) (collectively, the

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“University Defendants”) have also filed a motion to dismiss that the Doctor Defendants

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have joined. Docs. 11, 14. The motions have been fully briefed. Docs. 24, 25. For the

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reasons stated below, the Court will grant the motions.

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I.

Background.

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Plaintiff Gerald Flunder was a walk-on member of the ASU’s football team in

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2007. Doc. 1, ¶ 16. He was cut after failing to meet the team’s academic standards, but

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rejoined the team in 2008. Id. Unfortunately, during practice on November 19, 2008,

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Plaintiff suffered a serious left-knee injury that included torn ligaments and damage to

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the peroneal nerve. Id., ¶ 19. Dr. Cummings, a sports medicine consultant to ASU’s

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athletics teams, examined Plaintiff’s knee and immediately expressed concern about

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damage to the peroneal nerve, noting that if the nerve failed to regenerate after surgery,

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Plaintiff’s football career would be over. Id. Dr. Cummings examined Plaintiff again on

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November 20 and 24, 2008. Id., ¶¶ 30, 33. Plaintiff was also seen by Dr. Steven

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Erickson, ASU’s Head Team Physician, on November 21, 2008, id., ¶ 31, and by Dr.

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Chhabra on December 4, 2008, id., ¶ 34. Although Plaintiff alleges that notes from the

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three doctors were inconsistent in some ways, all three found peroneal nerve damage.

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On December 12, 2008, Dr. Cummings performed surgery on Plaintiff’s knee. Id.,

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¶ 49. The same day, Dr. Cummings informed Plaintiff’s parents that if the peroneal nerve

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was damaged and could not regenerate, Plaintiff’s football career would be over. Id.,

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¶ 75. The surgery successfully repaired all of the torn ligaments in the knee, and it

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appeared that the peroneal nerve was not damaged. Id., ¶ 77. However, three days later

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on December 18, Dr. Cummings noted “patchy sensation” related to the peroneal nerve,

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id., ¶ 80, and on December 22, again noted sensation loss, id., ¶ 82. Although Plaintiff’s

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knee continued to improve, symptoms of nerve damage persisted. Id., ¶¶ 84, 86-98. By

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October 2009, Plaintiff’s assessment plans characterized his peroneal nerve damage as

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“chronic.” Id., ¶ 99. An additional surgery was performed on Plaintiff’s knee on October

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8, 2009 to remove scar tissue that had formed around the nerve and had prevented it from

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regenerating. Id., ¶ 101.

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Plaintiff noted improvement during physical therapy after the second surgery. Id.,

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¶¶ 102-108.

Nevertheless, during a visit to Dr. Chhabra on January 25, 2010, Dr.

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Chhabra noted that Plaintiff would “not be playing football.” Id., ¶ 109. By March 2010,

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doctors noted that Plaintiff “has not changed in progress regarding his peroneal nerve

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injury but his knee is doing well,” and discussed life after football with Plaintiff. Id.,

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¶113. Plaintiff alleges that he was cleared to start jogging in June 2010, but that this

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clearance was not retained in his medical records, and Defendant Erickson, as head team

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physician, refused to let Plaintiff run with the team, noting that the clearance was only for

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self-paced jogging and not participation in team workouts. Id., ¶¶ 117-25.

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On March 21, 2011, Plaintiff and his mother met with Defendants Erickson,

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Chhabra, and Martin. The doctors informed Plaintiff that his recovery was “substantial

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but incomplete,” that he presented a high risk for further injury if he engaged in high-

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level athletic activities, and that he would not ever be cleared to return to football at ASU.

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Id., ¶ 129. At that meeting, Plaintiff’s mother asked to speak to someone in ASU’s legal

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department, but this request was denied. Id., ¶¶ 130-31.

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Despite this news from ASU doctors and administrators, Plaintiff continued to

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work to rehabilitate his knee and, in August 2011, demonstrated to Defendant Chhabra

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that he could do squats and walk on his heels and toes without pain.

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Nevertheless, Dr. Chhabra did not clear him to play football, stating he had not made a

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100% recovery. Dr. Chhabra told Plaintiff that he would never clear him to play. Id. At

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this point, Plaintiff alleges, he and his mother and trainer “realized this was a racial and

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retaliation issue.” Id.

Id., ¶ 143.

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Plaintiff met with Dr. Cummings on September 7, 2011 to request a clearance to

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play football again, but did not receive one. Similarly, on September 12, 2011, Dr.

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Chhabra noted that Plaintiff would not be cleared to return to football due to risk of

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injury. Id., ¶¶ 151-52.

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Plaintiff persisted. In January 2012, Plaintiff called Dr. Cummings’ office and

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spoke to a medical assistant about getting a medical clearance to play football. Id., ¶ 157.

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The assistant asked Plaintiff what he wanted Dr. Cummings to say on the clearance,

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Plaintiff replied that he wanted it to say “OK to return to play football,” and on January

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20, 2012, Plaintiff received a release from Dr. Cummings’ office that stated he was “OK

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to play All Sports OK to play Football.” Id., ¶ 157. On February 1, 2012, however,

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Cummings notified ASU that there was “an inappropriate note sent . . . I did not clear him

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to play.” Id., ¶ 161. Dr. Cummings did not, in fact, have any authority to clear Plaintiff

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to play football. Id., ¶ 173. The medical assistant that Plaintiff had spoken to was later

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fired by Dr. Cummings. Id., ¶ 189.

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Following this clarification by Dr. Cummings, Plaintiff tried numerous times to

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meet with and convince administrators in ASU’s athletic department to clear him to play

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football, all to no avail. Id., ¶¶ 153, 157, 175-187. Plaintiff also received phone calls and

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letters from Dr. Cummings clarifying the mistake in sending the Sports Release. Id.,

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¶¶ 189-93. In March, April, and May of 2012, Plaintiff received a series of letters from

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ASU administrators and officials reiterating that he was not eligible to play football at

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ASU due to his injury. Id., ¶¶ 199, 203, 206-07.

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Plaintiff filed this suit on September 12, 2013, seeking one hundred million dollars

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and declaratory relief allowing him to play football at ASU. In a 137-page complaint, he

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alleges claims for (1) race discrimination under 42 U.S.C. § 1981 for not being cleared to

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play football, (2) retaliation under 42 U.S.C. § 1981, (3) equal protection violation under

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42 U.S.C. § 1983 for not being cleared to play football, and (4) retaliation under 42

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U.S.C. § 1985 for refusing to let Plaintiff and his mother speak to ASU’s legal

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department.

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Defendants move to dismiss Plaintiff’s claims under Rules 8(a) and 12(b)(6),

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arguing that the claims are barred by the statute of limitations, barred by the Eleventh

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Amendment and sovereign immunity, barred by qualified immunity as to individual

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defendants, and fail to state claims under §§ 1981, 1983, and 1985. This case can be

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resolved on statute of limitations grounds.

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II.

Analysis.

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“[T]he statute of limitations defense . . . may be raised by a motion to dismiss . . .

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[i]f the running of the statute is apparent on the face of the complaint.” Jablon v. Dean

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Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980) (citing Graham v. Taubman, 610 F.2d

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821 (9th Cir. 1979)). Even if the relevant dates alleged in the complaint are beyond the

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statutory period, however, the “‘complaint cannot be dismissed unless it appears beyond

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doubt that the plaintiff can prove no set of facts that would establish the timeliness of the

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claim.’” Hernandez v. City of El Monte, 138 F.3d 393, 402 (9th Cir. 1998) (quoting

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Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995)). Indeed,

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“[d]ismissal on statute of limitations grounds can be granted pursuant to Fed. R. Civ.

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P. 12(b)(6) ‘only if the assertions of the complaint, read with the required liberality,

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would not permit the plaintiff to prove that the statute was tolled.’” TwoRivers v. Lewis,

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174 F.3d 987, 991 (9th Cir. 1999) (citing Vaughan v. Grijalva, 927 F.2d 476, 478 (9th

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Cir. 1991) (quoting Jablon, 614 F.2d at 682)).

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equitable tolling doctrine often depends on matters outside the pleadings, it is not

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generally amenable to resolution on a Rule 12(b)(6) motion.’” Hernandez, 138 F.3d at

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402 (quoting Supermail Cargo, 68 F.3d at 1206).

“‘Because the applicability of the

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Because the civil rights statute contains no statute of limitations, courts apply the

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statute of limitations for personal injury actions under state law to claims under §§ 1981,

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1983, and 1985. Wilson v. Garcia, 471 U.S. 261, 276 (1985). The Arizona statute of

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limitations for these claims is two years. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969,

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974 (9th Cir. 2004) (“borrow[ing] Arizona’s statute of limitations for personal injury

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claims” for §§ 1981 and 1983 claims); McDougal v. Cnty. of Imperial, 942 F.2d 668,

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673-74 (9th Cir. 1991) (“suits under § 1985(3) are also best characterized as personal

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injury actions and are governed by the same statute of limitations as actions under §

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1983”). “[U]nder federal law, a claim accrues “when the plaintiff knows or has reason to

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know of the injury which is the basis of the action.” Lukovsky v. City & Cnty. of S. F.,

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535 F.3d 1044, 1048 (9th Cir. 2008).

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Defendants argue that Plaintiffs claims under §§ 1981, 1983 and 1985 accrued on

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March 21, 2011, when ASU’s Head Team Physician informed Plaintiff that he would

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never be cleared to play football. Doc. 11 at 6. They urge that Plaintiff’s attempts to

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convince ASU to reconsider this decision did not extend the statute of limitations, and

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that his claims are barred because Plaintiff filed suit on September 12, 2013, more than

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two years after the March 2011 decision. The Court agrees.

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Plaintiff’s detailed complaint makes clear that his claims center on ASU’s refusal

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to allow him to play football. The complaint shows that this refusal became clear on

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March 21, 2011, when Doctors Chhabra, Erickson, and Martin told Plaintiff he would

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never be cleared to play football at ASU. Doc. 1, ¶ 129 (alleging that Dr. Erickson’s

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assessment plan states “I have informed the patient again that he is NOT cleared for

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participation in football and due to deficits he will NEVER be cleared to return to play.”)

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(emphasis in original). As of March 21, 2011, therefore, Plaintiff knew or had reason to

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know of the injury which is the basis of this action – Defendants’ refusal to allow him to

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play football. His claim therefore accrued more than two years before he filed suit in

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September of 2013, and is barred by the statute of limitations. Lukovsky, 535 F.3d at

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1048.1

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Even if the court were somehow to conclude that Plaintiff’s claim did not accrue

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when he was conclusively told, by three doctors, that his football days were over,

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Plaintiff specifically alleges that “Plaintiff, his mother and trainer realized this was a

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racial and retaliation issue” during an August 2011 meeting with Dr. Chhabra. Doc. 1,

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¶ 143. This express recognition of his discrimination claim also occurred more than two

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years before his complaint was filed.

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Plaintiff cannot credibly argue that his cause of action accrued on February 1,

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2012, when he alleges that Defendants reneged on the sports release that was issued in

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error by Dr. Cummings’s office in January of 2012. Doc. 24 at 7. By his own admission,

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Plaintiff was told unequivocally, well before that date, that his football career at ASU had

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ended. The erroneous issuance of the clearance by a medical assistant with whom

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Plaintiff spoke by phone did not somehow eliminate those earlier communications or the

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accrual of his claim, particularly when the error was corrected quickly. And because

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Plaintiff himself alleges that he realized he was the victim of racial discrimination in

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August of 2011, he cannot somehow claim that the discrimination first appeared when the

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error was corrected in February of 2012.

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In short, this is a case where the allegations of the complaint make clear that

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Plaintiff’s claim accrued more than two years before he filed his complaint. It “appears

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beyond doubt that the plaintiff can prove no set of facts that would establish the

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timeliness of the claim.” Hernandez, 138 F.3d at 402.

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Plaintiff’s fourth claim for relief alleges that at this same meeting on March 21,
2011, Plaintiff was denied permission to speak to ASU’s legal department. Doc. 1,
¶ 230. To the extent this claim asserts a different constitutional violation than the
allegedly discriminatory ban on his football playing, it too occurred on March 21, 2011,
more than two years before Plaintiff filed his complaint.
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IT IS ORDERED that Defendants’ motions to dismiss (Docs. 9, 11) are granted.
The Clerk is directed to terminate this action.
Dated this 7th day of April, 2014.

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