Anderson v. National Park Community College and Board of Trustees of National Park Community College et al

Filing 10

MEMORANDUM OPINION AND ORDER granting 6 Motion to Dismiss for Failure to State a Claim; Plaintiff's complaint is dismissed without prejudice. Signed by Honorable Robert T. Dawson on May 14, 2015. (hnc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

DRECARLOS ANDERSON

PLAINTIFF

v.

Case No. 14-6141

NATIONAL PARK COMMUNITY COLLEGE;
BOARD OF TRUSTEES OF NATIONAL PARK
COMMUNITY COLLEGE; WILLIAM RITTER,
individually and in his official
capacity as employee of National
Park Community College; JOHN HOGAN,
individually and in his official
capacity as President of National
Park Community College
DEFENDANTS

MEMORANDUM OPINION AND ORDER
Currently before the Court are the motion to dismiss and
supporting brief (Docs. 6-7) filed by Defendants National Park
Community College (“NPCC”), the Board of Trustees of NPCC (the
“Board”), NPCC employee William Ritter, and NPCC President John
Hogan.

Also

before

opposition (Doc. 9).

the

Court

is

Plaintiff’s

response

in

For the reasons set forth below, the Court

finds that Defendants’ motion should be GRANTED.
I.

Background
The following facts, which are assumed to be true for the

purpose of this motion, are taken from Plaintiff’s complaint:

Page 1 of 12

Plaintiff is an African-American male who began attending
NPCC’s

Adult

Basic

Education

Program

in

the

spring

of

2013.

After starting the program, he was told that he had to leave a
class due to the fact that he was over the age of 18.

At that

time, NPCC and an instructor named Becky Linske 1 allowed another
student who was Caucasian and over the age of 18 to remain in
the classroom.
On October 2, 2013, Plaintiff and another classmate took a
lunch break and upon returning to campus, Plaintiff decided to
get help from a former instructor, Kim Hobson. 2
the

classroom,

employee

of

Plaintiff,
After

Plaintiff

NPCC

–

causing

pushing

was

met

presumably

him

to

Plaintiff,

fall

by

an

Defendant

instructor),

backward

Ritter

Upon entering

into

called

Ritter
who

his

(an

pushed

classmate.

Plaintiff

a

“boy.”

Plaintiff was embarrassed and felt he was being intimidated.
Plaintiff

called

the

report the incident.
Crow

contacted

charge.

Garland

County

Sheriff’s

Department

to

Shortly thereafter, Investigator Leslie

Plaintiff

to

ask

if

he

wanted

to

pursue

the

In

Plaintiff responded affirmatively.
July

of

2014,

representatives

from

NPCC

informed

Plaintiff that the school would handle the October 2 incident
in-house.

According to Plaintiff, after he complained to the

Sheriff’s Department, a representative from NPCC contacted the
1
2

Ms. Linske is not a party to this action.
Ms. Hobson is not a party to this action.

Page 2 of 12

Sheriff’s Department to stop any investigation into the incident
reported by Plaintiff. 3
Plaintiff filed this civil rights action on December 9,
2015, against NPCC, the Board, NPCC employee William Ritter, and
NPCC

President

John

Hogan.

The

complaint

alleges

racial

discrimination claims under Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000(d) (“Title VI”); the First and Fourteenth
Amendments

of

the

Constitution;

42

U.S.C.

§

1983;

and

the

Arkansas Civil Rights Act of 1993, Ark. Code Ann. § 16-123105(a) (“ACRA”).

Defendants now move to dismiss the complaint

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
arguing that the Court lacks subject matter jurisdiction and
that Plaintiff failed to state a claim upon which relief can be
granted.
II.

Legal Standard
Rule

12(b)(1)

of

the

Federal

Rules

of

Civil

Procedure

allows the Court to dismiss any claims over which, either on
their face or in light of outside evidence, it does not have
proper

subject

matter

jurisdiction.

In

weighing

a

motion

to

dismiss under 12(b)(1), the Court must first identify “12(b)(1)
3

Plaintiff alleges that NPCC “clearly set out a course of conduct to try and
hide the fact that the abuse and discrimination by William Ritter occurred on
their campus.” (Doc. 1., p. 4). The Court considers this to be the type of
bare assertion that is not entitled to the presumption of truth when ruling
on a 12(b)(6) motion.
See Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009)
(noting “[i]t is the conclusory nature of respondent's allegations, rather
than their extravagantly fanciful nature, that disentitles them to the
presumption of truth”).

Page 3 of 12

motions

that

attack

the

complaint

on

its

face

and

12(b)(1)

motions that attack the existence of subject matter jurisdiction
in fact, quite apart from the pleadings.”

Mortensen v. First

Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977); see
also Osborn v. United States, 918 F.2d 724, 729 (8th Cir. 1990).
Defendants here attack the complaint on its face and have not
requested

that

pleadings.

the

Court

consider

any

matters

outside

the

Therefore, “the non-moving party receives the same

protections as it would defending against a motion brought under
Rule 12(b)(6).” Osborn, 918 F.2d at 729 n.6.
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’”

Iqbal, 556 U.S. at

678

550

(quoting

(2007)).
pleads

Bell

Atl.

Corp.

v.

Twombly,

U.S.

544,

570

“A claim has facial plausibility when the plaintiff
factual

reasonable

content

inference

misconduct alleged.”

that

allows

the

defendant

court
is

to

liable

draw

the

for

the

that

the

Id.

In ruling on a 12(b)(6) motion, a

court accepts as true all of the factual allegations contained
in a complaint and reviews the complaint to determine whether
its allegations show that the pleader is entitled to relief.
Schaaf v. Residential Funding Corp., 517 F.3d 544, 549 (8th Cir.
2008).

Page 4 of 12

III. Discussion
As
subject

a

threshold

Defendants

jurisdiction.

However,

matter

matter,

addressed in the parties’ briefing.

raise
this

the

issue

issue

was

of
not

Plaintiff alleges in the

complaint that jurisdiction is based on 28 U.S.C. § 1343, which
provides

district

rights

civil

the

actions.

sufficiently
Defendants’

states
motion

a

courts
The
proper

to

with

original

Court

finds

basis

for

dismiss

for

jurisdiction

that

the

federal

lack

of

over

complaint

jurisdiction.

subject

matter

jurisdiction under Rule 12(b)(1) is denied.
Defendants next assert that Plaintiff’s complaint does not
adequately set forth sufficient factual allegations showing that
the pleader is entitled to relief as required by Federal Rule of
Civil Procedure 8(a)(2), and that the complaint should therefore
be dismissed pursuant to Rule 12(b)(6).

Plaintiff concedes that

he has no valid Title VI claim against the Board, Ritter, or
Hogan.

(Doc. 9, p. 1).

He also acknowledges that NPCC, the

Board, and Ritter and Hogan in their official capacities are
entitled to Eleventh Amendment immunity on his § 1983 claims.
(Doc. 9, p. 3).
further analysis.

Accordingly, these claims are dismissed without
The remaining claims are discussed below.

A. Title VI Claim Against NPCC
Title VI provides that “[n]o person in the United States
shall, on the ground of race, color, or national origin, be
Page 5 of 12

excluded from participation in, be denied the benefits of, or be
subjected

to

discrimination

under

any

program

or

activity

receiving Federal financial assistance.” 42 U.S.C. § 2000d.
Plaintiff
because

has

he

has

allegations

that

failed
not

state

alleged

actions

Plaintiff’s race.

to

a

any

taken

claim

facts

by

NPCC

under

beyond
were

Title

VI

conclusory

motivated

by

Plaintiff alleges NPCC discriminated against

him on the basis of race because he was told he had to leave a
class due to the fact that he was over 18 years of age, while
another student who was Caucasian and over the age of 18 was
allowed to remain in the classroom.

Further, he alleges all

Defendants failed to investigate or take remedial action after
Plaintiff

complained

about

a

hostile

environment

after

the

raise

the

October 2 incident.
Although
possibility
sufficient

Plaintiff’s
of

conclusory

discrimination,

factual

allegations

they
to

allegations
are

rise

to

not

supported

the

level

by

of

an

actionable claim for relief.

See Yusuf v. Vassar Coll., 35 F.3d

709,

(“A

712–14

(2d

Cir.

1994)

plaintiff

alleging

racial

or

gender discrimination by a university must do more than recite
conclusory assertions.”).

Plaintiff has not stated any facts

from which the Court could infer any discriminatory intent on
the part of NPCC.
F.3d

789,

794

See Mumid v. Abraham Lincoln High Sch., 618

(8th

Cir.

2010)

(“Title

Page 6 of 12

VI

prohibits

only

intentional discrimination.”).

Accordingly, Plaintiff’s Title

VI claim must be dismissed.
B. First Amendment Claim
In the complaint, Plaintiff alleges an unspecified claim
under the First Amendment.

(Doc. 1, p. 1).

Because Plaintiff

has not set forth “a short and plain statement of the claim
showing that the pleader is entitled to relief,” as required by
Federal

Rule

of

Civil

Procedure

8(a)(2),

Plaintiff’s

First

Amendment claim must be dismissed.
C. Section 1983 Claims
To state a cause of action under § 1983, a plaintiff must
allege that he was deprived of a constitutional right and that
the person depriving him of the right acted under color of law.
Gomez v. Toledo, 446 U.S. 635, 640 (1980).

In the complaint,

Plaintiff alleges that Defendants Ritter and Hogan, in their
individual

capacities,

violated

his

constitutional

right

to

equal protection under the Fourteenth Amendment.
“In

general,

the

Equal

Protection

Clause

requires

that

state actors treat similarly situated people alike.” Bogren v.
Minnesota, 236 F.3d 399, 408 (8th Cir. 2000) (citation omitted).
“State actors may, however, treat dissimilarly situated people
dissimilarly without running afoul of the protections afforded
by

the

clause.”

Id.

“Because

vicarious

liability

is

inapplicable to . . . § 1983 suits, a plaintiff must plead that
Page 7 of 12

each Government-official defendant, through the official's own
individual actions, has violated the Constitution.”

Iqbal, 556

U.S. at 676.
1. Defendant Ritter
Defendant Ritter contends that he is entitled to qualified
immunity on Plaintiff’s § 1983 claim.

“An official sued under

§ 1983 is entitled to qualified immunity unless it is shown that
the official violated a statutory or constitutional right that
was clearly established at the time of the challenged conduct.”
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quotation
omitted).
“Under the doctrine of qualified immunity, a court must
dismiss

a

complaint

against

a

government

official

in

his

individual capacity that fails to state a claim for violation of
‘clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Hager v. Ark. Dep't of
Health, 735 F.3d 1009, 1013 (8th Cir. 2013) (quoting Harlow v.
Fitzgerald,

457

U.S.

800,

818

(1982)).

“A

court

considers

whether the plaintiff has stated a plausible claim for violation
of a constitutional or statutory right and whether the right was
clearly established at the time of the alleged infraction.”
The

Court’s

preliminary

inquiry

is

whether

the

Id.
facts

alleged, viewed in the light most favorable to Plaintiff, show
that

Ritter

violated

Plaintiff’s

Fourteenth

Page 8 of 12

Amendment

equal

protection rights.
Court

concludes

After careful review of the complaint, the

that

the

allegations

fail

to

establish

that

Defendant Ritter violated Plaintiff’s constitutional rights.
Plaintiff alleges that Defendant Ritter violated his equal
protection rights when he physically pushed Plaintiff and called
him a “boy,” which created a hostile environment for Plaintiff.
The Court concludes that these allegations, taken as true, are
indicative of a single isolated incident, but are not enough to
support a claim of racial discrimination.

Although Plaintiff

alleges that Ritter’s conduct was racially motivated and that
the term “boy” was used as a racially derogatory term, there are
no factual allegations to support these conclusory assertions.
Further, the Eighth Circuit has long held in other contexts that
“the use of racially derogatory language, unless it is pervasive
or severe enough to amount to racial harassment, will not by
itself violate the fourteenth amendment.”

Blades v. Schuetzle,

302 F.3d 801, 805 (8th Cir. 2002) (prison context).

Plaintiff

has not alleged how he was treated differently because of his
race.
(8th

See Johnson v. City of Minneapolis, 152 F.3d 859, 862
Cir.

1998)

(“To

state

an

[plaintiff]

must

have

established

equal
that

protection
he

was

claim,
treated

differently from others similarly situated to him.”).
Because Plaintiff failed to plead any facts to support the
assertion that Ritter’s alleged actions were racially motivated,
Page 9 of 12

Plaintiff has failed to state an equal protection claim against
Ritter under the Fourteenth Amendment.

Accordingly, Defendant

Ritter is entitled to qualified immunity and Plaintiff’s § 1983
claim against Defendant must be dismissed.
2. Defendant Hogan
Plaintiff alleges that Defendant Hogan, President of NPCC,
violated his equal protection rights by failing to investigate
or

take

prompt

remedial

involving Ritter.

action

after

the

October

2

incident

The only allegations specific to Defendant

Hogan are that he is the current President of NPCC, and that he
assumed the position when the previous president retired on June
30,

2014.

engaged

There

in

any

are

no

allegations

discriminatory

that

conduct.

Hogan

personally

Rather,

Plaintiff

alleges generally that all Defendants discriminated against him
because
action

they
after

failed
he

to

investigate

complained

about

officials and local law enforcement.
alleged

any

facts

to

support

an

or

take

Ritter’s

prompt

actions

remedial
to

school

However, Plaintiff has not
inference

that

personal knowledge of any matters involving Plaintiff.

Hogan

had

See Pool

v. Mo. Dep’t of Corr. & Human Res., 883 F.3d 640, 645 (8th Cir.
1989) (noting that supervisor liability under § 1983 requires a
plaintiff

to

show

the

superior

had

actual

knowledge,

and

affirming dismissal where the court could not determine that the
defendant was personally aware of alleged misconduct).
Page 10 of 12

The mere fact that Hogan assumed the presidency of NPCC in
June

of

2014

Plaintiff’s
liability.

is

not

equal

enough

to

protection

allege

rights

that

under

Hogan
any

violated

theory

of

As such, Plaintiff’s § 1983 claim against Hogan will

be dismissed.
D. Arkansas Civil Rights Act Claims
Plaintiff also filed claims under the ACRA, which provides
a

cause

of

action

for

Arkansas Constitution.

deprivation

of

rights

secured

by

Ark. Code Ann. § 16–123–105(a).

the

In this

case, the claims against the Defendants under the ACRA mirror
Plaintiff’s claims under § 1983. Given that the facts and the
legal

standards

for

where

dismissal

is

both

statutes

appropriate

appropriate under the ACRA.

are

under

essentially
§

1983,

the

it

is

same,
also

Because Plaintiff’s pleaded facts

do not state a claim for which relief can be granted under Ark.
Code § 16-123-105(a), Defendants’ motion to dismiss Plaintiff’s
ACRA claims will be granted.
IV.

Request to Amend Complaint
Plaintiff requests leave to amend his complaint in his

response

to

Defendants’

motion.

It

appears

that

one

reason

Plaintiff seeks leave to amend is to name Defendants Ritter and
Hogan in their individual capacities. (See Doc. 9, p. 1, ¶ 5).
Because the complaint already names these Defendants in both
their official and individual capacities, leave to amend the
Page 11 of 12

complaint

in

this

manner

is

unnecessary.

Plaintiff

also

requests leave to amend the complaint to “flesh out his First
Amendment claims, based on the Defendants’ attempts to chill his
speech

relative

to

reporting

the

school’s

and

its

employees

[sic] actions to the police and the school’s and its employees’
attempts to quash any investigation into the validity of the
complaints made by the Plaintiff.”
While

Plaintiff

has

Id. at p. 2, ¶ 8.

clarified

that

his

alleged

First

Amendment claims stem from a purported violation of his right to
free speech, he has not set forth anything more than vague,
conclusory

allegations

that

he

has

been

harmed.

Further,

Plaintiff’s request for leave to amend fails to comply with the
Local Rules of Court for amending a pleading.
5.5(e).

See Local Rule

Plaintiff’s request for leave to amend the complaint is

denied.
V.

Conclusion
For

dismiss

the
(Doc.

reasons
6)

is

set

forth

GRANTED

above,
and

Defendants’

Plaintiff’s

motion

to

complaint

is

DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED this 14th day of May, 2015.
/s/ Robert T. Dawson
Honorable Robert T. Dawson
United States District Judge

Page 12 of 12