Jemaneh v. University of Wyoming,The
Filing
195
ORDER granting 91 Defendants' Motion to Dismiss. Plaintiff's remaining claims are hereby dismissed with prejudice as to all Defendants except as follows: a) As to the Seventh and Eighth Claims against the University and Individual Defen dants (as those terms are defined above) in their official capacities, dismissal based on Eleventh Amendment immunity is dismissed without prejudice; and b) As to Defendant Thompson, in her individual capacity, the Fourth Claim, Sixth Claim based on alleged violation of equal protection, and Eighth Claim are dismissed without prejudice with leave to amend as stated in paragraph 2 below. Plaintiff is granted until 3/25/2015, in which to file an amended complaint as to Defendant Thompson, in her individual capacity, with respect to the Fourth Claim, Sixth Claim for violation of equal protection, and Eighth Claim for Relief only. All other pending motions [# 156 , # 185 , # 193 , # 194 ] are denied as MOOT. By Judge Raymond P. Moore on 3/11/2015. (alowe)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-02383-RM-MJW
TEWODROS G. JEMANEH,
Plaintiff,
v.
THE UNIVERSITY OF WYOMING,
THE UNIVERSITY OF WYOMING COLLEGE OF HEALTH SCIENCES,
THE UNIVERSITY OF WYOMING SCHOOL OF PHARMACY,
TOM BUCHANAN, in his official and individual capacity,
NELL RUSSELL, in her official and individual capacity,
JOSEPH F. STEINER, in his official and individual capacity,
DAVID L. JONES, in his official and individual capacity,
JOHN H. VANDEL, in his official and individual capacity,
BEVERLY A. SULLIVAN, in her official and individual capacity,
JAIME R. HORNECKER,
JANELLE L. KRUEGER, in her official and individual capacity,
CARA A. HARSHBERGER, in her official and individual capacity,
AMY L. STUMP, in her official and individual capacity,
AGATHA CHRISTIE NELSON, in her official and individual capacity,
KATHLEEN A. THOMPSON, in her official and individual capacity, and
MARIA A. BENNET, in her official and individual capacity,
Defendants.
______________________________________________________________________________
ORDER ON DEFENDANTS’ MOTION TO DISMISS (ECF NO. 91)
______________________________________________________________________________
Plaintiff Tewodros G. Jemaneh, an Ethiopian-American, filed this action alleging he was
wrongfully terminated from the pharmacy program at the University of Wyoming in violation of
various federal and state laws. By Order dated May 30, 2013, some of Plaintiff’s claims were
dismissed. (ECF Nos. 71 & 83.) This matter is now before the Court on Defendants’ Motion to
Dismiss all Remaining Claims (“Motion”) (ECF No. 91), filed pursuant to Fed. R. Civ. P.
12(b)(1), (b)(2), and 12(b)(6), seeking dismissal based on failure to state a claim, qualified
immunity, Eleventh Amendment immunity, and the Wyoming Governmental Claims Act
(“WGCA”). Upon consideration of Defendants’ Motion, Plaintiff’s Response (ECF No. 128-1),
Defendants’ Reply, all relevant parts of the Court’s file, and the applicable statutes, rules, and
case law, the Court GRANTS the Motion, but grants Plaintiff leave to refile certain claims as
against Defendant Kathleen A. Thompson only.
I.
PROCEDURAL BACKGROUND
On September 7, 2012, Plaintiff filed this action asserting 14 claims for relief. In the
Complaint, Claims 1 through 9 allege various violations of 42 U.S.C. § 1983. Claims 10 and 11
allege violations of 42 U.S.C. § 1985(3). Claim 12 alleges a violation of 42 U.S.C.
§ 1986. Claim 13 alleges intentional infliction of emotional distress, and Claim 14 alleges
negligent infliction of emotional distress. (ECF No. 1.)
On February 8, 2013, Defendants filed a motion to dismiss. (ECF No. 49.) In this first
motion, Defendants argued that: (1) Plaintiff’s § 1983 and § 1985 claims (Claims 1-11) should
be dismissed against the University defendants and individual defendants in their official
capacities based on Eleventh Amendment immunity; and (2) Plaintiff’s § 1986 claim (Claim 12)
should be dismissed as time-barred. The first motion to dismiss was referred to the Magistrate
Judge for a report and recommendation.
In response to the first motion, Plaintiff asserted that he mislabeled the Fourth and Fifth
Claims as § 1983 claims when they are 42 U.S.C. § 2000d claims, and the Seventh and Eighth
Claims as § 1983 claims when they are §1981 claims. (ECF No. 61.) In his recommendation on
2
the first motion to dismiss, the Magistrate Judge accepted Plaintiff’s categorization of the four
claims. As categorized, the Magistrate Judge recommended the claims brought under §§ 1983
and 1985 be dismissed based on Eleventh Amendment immunity as against the University
entities and the individual defendants in their official capacities. The Magistrate Judge also
recommended the § 1986 claim be dismissed as time-barred. (ECF No. 71.) No party filed an
objection to the recommendation. Thereafter, the Court accepted and adopted the
recommendation, dismissing Claims 1, 2, 3, 6, 9, 10, and 11 against the University defendants
and individual defendants in their official capacities; and Claim 12 against all defendants. (ECF
No. 83.)
The Motion currently before the Court is filed pursuant to Fed. R. Civ. P. 12(b)(1) (lack
of subject matter jurisdiction), (b)(2) (lack of personal jurisdiction), and (b)(6) (failure to state a
claim), seeking a dismissal of all remaining claims.1 As the Motion does not address personal
jurisdiction, that issue will not be considered.
The Motion was filed over the Plaintiff’s objections that a “second” Rule 12(b)(6) motion
to dismiss may not be filed under the Federal Rules of Civil Procedure. Those objections and
arguments have been addressed and rejected. Plaintiff continues to object but, as before, the
Court finds the objection without merit. See Albers v. Bd. of Cnty. Comm’rs of Jeff. Cnty., 771
F.3d 697, 703 (10th Cir. 2014) (Recognizing “Rule 12(h)(2) allows parties to bring the defense
of failure to state a claim in post-answer motions or at trial, and Rule 12(h)(1) expressly exempts
Rule 12(b)(6) motions from its waiver rule.”) Although Defendants’ Motion should have been
1
The Motion was initially referred to the Magistrate Judge for a report and recommendation (ECF No. 92). After
the Magistrate Judge issued a Recommendation (ECF No. 125), the Court unreferred the Motion and determined the
Recommendation was moot. (ECF No. 164.) Therefore, the Motion is before this Court for resolution.
3
filed pursuant to Rule 12(c) rather than Rule 12(b)(6), the standards for reviewing a Rule 12(c)
and 12(b)(6) motion are the same and the misnomer does not affect Plaintiff’s substantive rights.
See Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240 (10th Cir. 2000); Albers, 771 F.3d at 703-04.
Accordingly, the Defendants’ Motion is properly before this Court for consideration.
Plaintiff’s Response also argues Defendants’ current Eleventh Amendment immunity
argument as to the § 1981 claims (Seventh and Eighth Claims) is time barred because it was not
brought in the first motion to dismiss. Plaintiff’s argument, however, fails for a number of
reasons. First, as shown by the procedural history, the Eleventh Amendment argument as to the
§ 1981 claims could not have been raised in the first motion to dismiss as it was not until the
Magistrate Judge issued its Order that Plaintiff’s Seventh and Eighth Claims, stated as § 1983
claims in the Complaint, were categorized as § 1981 claims. Next, as discussed above,
Defendants may assert a Rule 12(b)(6) defense under Rule 12(c). Finally, an analysis of
Eleventh Amendment immunity is considered under Rule 12(b)(1), not Rule 12(b)(6). See
Elephant Butte Irrig. Dist. of N. M. v. Dep’t of Interior, 160 F.3d 602, 607 (10th Cir. 1998) (“We
review de novo a district court’s consideration of subject matter jurisdiction in the context of a
Fed. R. Civ. P. 12(b)(1) motion to dismiss based on Eleventh Amendment immunity.”); Webb v.
Jones, No. 12-6250, 525 F. App’x. 773, 775, 2013 WL 2168143, at * 1 (10th Cir. May 21, 2013)
(same) (unpublished). As such, Defendants are not precluded from raising the defense in their
Motion.
4
II.
OVERVIEW OF ALLEGATIONS2
Plaintiff alleges that the persons with whom he came into contact academically during his
last year at the pharmacy program at the University of Wyoming engaged in discriminatory or
other unlawful conduct. The persons at issue are three entities and 13 individuals. Those entities
are defendants the University of Wyoming (“UOW”), the University of Wyoming College of
Health Sciences (“UWCHS”), and the University of Wyoming School of Pharmacy (“UWSOP”)
(collectively, the “University”). The individuals are nine “Supervisory Defendants,” i.e.,
Defendants Buchanan, Russell, Steiner, Jones, Vandel, Sullivan, Krueger, Harshberger, and
Bennett (Complaint, p. 8), and four instructors (Defendants Hornecker, Stump, Nelson and
Thompson) (collectively, “Individual Defendants”) (the University and Individual Defendants
will collectively be referred to herein as “Defendants”). During the relevant time period, except
for Defendant Thompson, the Individual Defendants worked for UOW or UWSOP in Wyoming.
Defendant Thompson is a Caucasian female who worked for the UWSOP as a Clinical Assistant
Professor of Pharmacy Practice at the Swedish Family Medicine Residency Program in
Colorado. (Complaint, pp. 7, 39.)
Plaintiff was one of 49 pharmacy students at the UWSOP program. Plaintiff is an
Ethiopian-American, three of the other students are Caucasians, but the 45 other students’ races
or national origins are unknown. (Complaint, e.g., pp. 37-39, 49, 67.) Defendant Thompson
2
At the outset, it should be noted that the Complaint is far from clear as to which claims apply to which Defendants
as Plaintiff’s allegations are frequently directed against Defendants collectively, presumably seeking to hold them all
liable even though no personal involvement is alleged. In addition, in his Response, Plaintiff asserts that certain
claims are also directed against Defendants who are not otherwise named in such claims, as such Defendants were
unintentionally omitted.
5
taught the Internal Medicine I rotation course at Swedish from May 7, 20103 to April 1, 2011.
(Complaint, p. 7.) She was apparently the preceptor for three interns, Plaintiff and two
Caucasians. (Complaint, e.g., pp. 37-39, 49, 67.)
Plaintiff alleges he was subjected to two “discriminatory terminations.” The first
termination allegedly occurred in the spring of 2010, while the second allegedly occurred in
April 2011. (Complaint, pp. 10, 33, 34, 50, 69.)
Plaintiff asserts his first “discriminative termination” was caused by instructors Stump,
Hornbecker, and Nelson,4 and the Dean of UWSOP, Vandel. (Complaint, pp. 5, 10-12.)
According to Plaintiff, in the spring of 2010, he took the Pharmacokinetics course in which three
examinations were given. Plaintiff received a 91% on his first examination, but his instructors,
Defendants Stump, Hornbecker, and Nelson, denied Plaintiff credit for his correct works in the
second and third examinations, resulting in a failing grade for the course. (Complaint, pp. 1011.) Dean Vandel thereafter notified Plaintiff that he was terminated from the pharmacy
program. (Complaint, p. 11.)
Plaintiff, however, complained to Defendant Steiner, Dean of UWCHS. (Complaint, pp.
5, 11.) He also complained to Dean Vandel and threated to sue unless he was given additional
credit and his termination withdrawn. Thereafter, Plaintiff was advised that his grade had been
changed from a “D” to “C,” a passing grade, and Dean Vandel withdrew Plaintiff’s termination
from the pharmacy program. (Complaint, pp. 11-12.)
3
Although the date alleged was May 7, 2011, the Complaint as a whole shows the year at issue is 2010.
(Complaint, pp. 10, 11.)
4
Plaintiff alleges there were five instructors, but only identifies three instructors allegedly involved with the
termination. (Complaint, p. 11, ¶29.)
6
The second alleged “discriminative termination” was made by Defendant Thompson in
the Internal Medicine I rotation course. Defendant Thompson was new, inexperienced, and
prone to making mistakes in teaching Plaintiff’s class. (Complaint, pp. 13-15.) Indeed,
Plaintiff’s classmates complained about Defendant Thompson’s errors which she then had to
correct. (Complaint, p. 15.) With respect to Plaintiff specifically, Defendant Thompson gave
Plaintiff “arbitrary and capricious” grades and then made random changes to such grades.
(Complaint, p. 16.) She also assigned Plaintiff a failing grade in the clinical and non-clinical
sections of the Internal Medicine I course. (Complaint, p. 17.) According to Plaintiff, this is
how the grade was assigned.
The Internal Medicine course had a midpoint and final evaluation. (Complaint, p. 17.)
On March 17, 2011, just before the midpoint evaluation, Plaintiff met with Defendant Thompson
at her request so that she could observe him working on one of his patients. (Complaint, pp. 2324, 39-40.) Defendant Thompson told Plaintiff that she wanted to do so in order to help him
with the course. Plaintiff’s Caucasian classmates were not required to participate in an
“observational meeting,” but there are no factual allegations showing how his classmates were
performing academically. (Complaint, pp. 39-41.)
After the observation, Plaintiff met with Defendant Thompson in her office where,
instead of providing objective criticism or feedback, Defendant Thompson insulted Plaintiff with
statements such as he was the “worst” student. (Complaint, p. 26.) When Defendant Thompson
asked Plaintiff how he thought he was doing academically, Plaintiff expressed his “personal
7
opinion” that Defendant Thompson had “very high expectations for interns.” (Complaint, pp.
26-27.)
On the next day, Friday, March 18, 2011, Defendant Thompson met with Plaintiff for his
midpoint evaluation meeting where she gave Plaintiff a failing grade. (Complaint, e.g., pp. 19,
20, 22, 72.) Plaintiff’s failing midpoint grade was based in part on Defendant Thompson’s
observations. (Complaint, pp. 24, 26.) During the evaluation, Defendant Thompson “required”
Plaintiff to sign a remediation plan. (Complaint, p. 32.) The remediation plan’s provisions,
essentially, requested Plaintiff to acknowledge that he was failing his rotation and to accept
responsibility for the same; that he would be assessed each week following patient care; that he
would not pass if he did not adhere to the plan; and that he understood the magnitude of the plan.
(Complaint, pp. 32-33.) Plaintiff, however, refused to sign the plan. (Complaint, pp. 33, 83.)
Plaintiff thereafter submitted “to almost all of the Defendants” complaints of “unfair and
discriminative treatment,” seeking removal of the failing midpoint grade. (Complaint, pp. 29,
30.) “Defendants,” however, rejected Plaintiff’s complaints. (Complaint, p. 30.)
On or about April 1, 2011, Defendant Thompson assigned Plaintiff a final failing grade.
Plaintiff was officially terminated from the pharmacy program by letter dated April 20, 2011.
(Complaint, p. 69.)
Plaintiff asserts that, from the outset, Defendant Thompson denied Plaintiff “equal
learning opportunities” based on his race and national origin, as compared to his two Caucasian
classmates who were also pharmacy interns. (Complaint, pp. 34-36.) In support of this
assertion, Plaintiff alleges that Defendant Thompson did not timely provide Plaintiff and his
8
classmates with passwords (Complaint, pp 34-35); did not allow him to take notes earlier than
his scheduled time at Swedish Medical Center (Complaint, pp. 35-36)5; did not allow him to
print pages other than the medication list, but believes that Defendant Thompson allowed his
classmates to print pages other than the medication list page because she “should have seen”
them doing so from her office (Complaint, p. 37); did not allow Plaintiff and his classmates to
come to the pharmacy interns’ office before 7:00 a.m. (Complaint, p. 37); and did not allow
Plaintiff and his classmates to keep their early hour’s access door key (Complaint, p. 71).
Plaintiff also believes that Defendant Thompson assigned his two Caucasian classmates a better
grade for the Non-Clinical Section of the course, even though his presentation was “far better.”
(Complaint, p. 37.)
Plaintiff also asserts that, after the March17, 2011, examination and/or observation,
Defendant Thompson asked Plaintiff for the specific patient’s monitoring forms from her
observation. Thereafter, Plaintiff overheard his two Caucasian classmates discussing selecting
patient monitoring forms they wished to submit to Defendant Thompson. Defendant Thompson,
however, did not allow Plaintiff to select and submit an additional monitoring form, telling him
she had enough documents. (Complaint, p. 38.)
Plaintiff also alleges Defendant Thompson used a “New Point Assignment System,” a
more stringent system, to evaluate Plaintiff’s academic performance but used the USWOP
standardized evaluation to evaluate Plaintiff’s Caucasian classmates. (Complaint, pp. 17, 29,
43.) Under this system, Plaintiff would be assigned a grade of 100%, 50%, or minus 100%, as
the system does not allow any grade in between those three percentages. (Complaint, p. 44.)
5
Plaintiff alleges Defendant Thompson allowed his two Caucasian classmates to take notes, but there are no factual
allegations that they were doing so earlier than their scheduled time. (Complaint, pp. 35-36.)
9
However, according to Plaintiff, Defendant Thompson assigned Plaintiff a failing midpoint grade
of 66% (Complaint, p. 42 at ¶122) and a failing final grade of 64% (Complaint, p. 23 at ¶63(i)),
showing the more stringent system was not used to grade Plaintiff. The New Point System was
also not approved or provided by the UWSOP. (Complaint, p. 18.)
Because of his termination, Plaintiff did not complete Internal Medicine II and, therefore,
could not graduate. (See Complaint, p. 68.) Plaintiff asserts that a female pharmacy intern had
failed Internal Medicine Rotation II and, in order to accommodate her, the UWSOP terminated
Plaintiff from the pharmacy program so that she could take his place. (Complaint, p. 68.) That
rotation was scheduled for April 4-April 29, 2011. (Complaint, p. 68.)
Plaintiff alleges he was not notified of the UWSOP Grievance Policies, which included a
right to appeal his grades, until after he received his final grade. (Complaint, e.g., p. 52.)
Nonetheless, the policies were received, and Plaintiff utilized them to file complaints of
discrimination and to challenge his grades. Plaintiff was apparently afforded hearing(s) on his
complaints. (Complaint, pp. 55-59, 62-64.) Defendants Thompson, Krueger, Vandel, Sullivan,
and Bennett, however, did not follow one or more of the Grievance Polices. Further, Defendants
Vandel and Krueger had only bachelor’s degrees, and Defendant Russell had no formal legal
education, but they investigated and decided Plaintiff’s disputes. (Complaint, e.g., pp. 52-55, 57,
59, 60.) In summary, Plaintiff challenges the qualifications of the final decision makers, and
disagrees with the decisions on his complaints, alleging one or more Defendants improperly
believed Defendant Thompson’s assessment of Plaintiff’s performance in affirming his academic
dismissal.
10
III.
STANDARD OF REVIEW
A. Fed. R. Civ. P. 12(b)(6) and 12(c)
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a pleading must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). A motion for judgment on the pleadings under Rule 12(c) is determined under the
same standard as a motion to dismiss under Rule 12(b)(6). Ramirez, 222 F.3d at 1240. Pursuant
to Rule 12(b)(6), a complaint must be dismissed if it does not plead “enough facts to state a
claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do . . . .” Id. at 555 (internal citations and brackets
omitted). “Factual allegations must be enough to raise a right to relief above the speculative
level.” Id. “[A] plaintiff must ‘nudge [ ] [his] claims across the line from conceivable to
plausible’ in order to survive a motion to dismiss. . . . Thus, the mere metaphysical possibility
that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient;
the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood
of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493
F.3d 1174, 1177 (10th Cir. 2007) (internal citation and quotation omitted; italics in original).
The Tenth Circuit Court of Appeals has held “that plausibility refers to the scope of the
allegations in a complaint: if they are so general that they encompass a wide swath of conduct,
11
much of it innocent, then the plaintiffs have not nudged their claims across the line from
conceivable to plausible.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
(internal quotation marks and citation omitted). The Tenth Circuit has further noted “that [t]he
nature and specificity of the allegations required to state a plausible claim will vary based on
context.” Id. (Internal quotation marks omitted.) Thus, the Tenth Circuit “concluded the
Twombly/Iqbal standard is ‘a middle ground between heightened fact pleading, which is
expressly rejected, and allowing complaints that are no more than labels and conclusions or a
formulaic recitation of the elements of a cause of action, which the [Supreme C]ourt stated will
not do.’” Id. (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)).
For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all
well-pled factual allegations in the complaint as true and resolve all reasonable inferences in the
plaintiff’s favor. Morse v. Regents of the Univ. of Colo., 154 F.3d 1124, 1126-27 (10th Cir.
1998); Seamons v. Snow, 84 F.3d 1226, 1231-32 (10th Cir. 1996). However, “when legal
conclusions are involved in the complaint ‘the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to [those] conclusions’ . . . .” Khalik, 671
F.3d at 1190 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Accordingly, in examining
a complaint under Rule 12(b)(6), [the court] will disregard conclusory statements and look only
to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Id.
B. Plaintiff’s Pro Se Status
Plaintiff is proceeding pro se. The court, therefore, reviews his pleadings and
other papers liberally and holds them to a less stringent standard than those drafted by
12
attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding a pro se complainant’s
allegations to less stringent standards than formal pleadings drafted by lawyers); Trackwell v.
United States Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007). A pro se litigant’s conclusory
allegations without supporting factual averments are insufficient to state a claim upon which
relief can be based. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not
assume that a plaintiff can prove facts that have not been alleged or that a defendant has violated
laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see Whitney v. New Mexico, 113 F.3d
1170, 1173-74 (10th Cir. 1997) (stating a court may not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal theory on plaintiff’s behalf) (citation
omitted); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (stating a court
may not construct arguments or theories for the plaintiff in the absence of any discussion of
those issues) (citations omitted). The plaintiff’s pro se status does not entitle him to application
of different rules of civil procedure. See Hall, 935 F.2d at 1110; Wells v. Krebs, No. 10-cv00023, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010).
IV.
ANALYSIS
A. Plaintiff’s Claims Under 42 U.S.C. § 1983 for Retaliation for Exercise of Free
Speech (Claims One and Two)6
Plaintiff’s First Claim alleges that Defendant Thompson assigned Plaintiff failing grades
in retaliation for expressing his personal opinions concerning how he was doing in her class and
6
This claim was dismissed against the University and the Individual Defendants in their official capacity by Order
dated May 30, 2013. Although specific Defendants are identified, Defendants argue that, to the extent Plaintiff
argues he unintentionally omitted any of the Individual Defendants, their arguments apply equally to them. (Motion,
p. 4 at n.4.) The Court agrees.
13
his belief that Defendant Thompson had high expectations for interns, in violation of his First
Amendment rights; and that the “Supervisory Defendants” had authority to address such
violation but failed to do so. (Complaint, e.g., pp. 78-80.) Similarly, Plaintiff’s Second Claim
alleges that Defendant Jones also retaliated against Plaintiff for expressing those same personal
opinions.7 (Complaint, e.g., pp. 81-82.) Defendants argue these claims should be dismissed
because, among other reasons: (1) Plaintiff’s speech is not a matter of public concern; and (2)
Defendants are entitled to qualified immunity.
In assessing First Amendment retaliation claims against defendants who are not an
employer of or a party to a contract with the plaintiff, proof of the following elements are
required: “(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the
defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary
firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action
was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected
conduct.” Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000) (internal quotation marks
omitted) (quoting Lackey v. Cnty. of Bernalillo, No. 97-2265, 1999 WL 2461, at *3 (10th Cir.
Jan. 5, 1999) (unpublished)). In Leverington v. City of Colo. Springs, 643 F.3d 719, 734 (10th
Cir. 2011), the Tenth Circuit stated that it need not – and did not – decide whether
constitutionally protected speech must be a matter of public concern in the context of a Worrell
inquiry.
7
Defendants’ Motion only specifically addressed Plaintiff’s allegations against Defendant Thompson and the
Supervisory Defendants, but argues dismissal is appropriate for Claims 1 and 2. Accordingly, the Court assumes
Defendants’ arguments are the same with respect to Defendant Jones.
14
Worrell and Leverington were both decided in the public employment context. Here, the
speech at issue was made in an academic setting. Prior to Leverington, however, in the
unpublished decision of McCook v. Spriner School Dist., No. 01-2157, 44 F. App’x. 896, 904,
2002 WL 1788529, *6 (10th Cir. Aug. 5, 2002) (unpublished), the Tenth Circuit applied Worrell
in the school/education context in a lawsuit brought by the parents of a student. There, the Tenth
Circuit stated “none of the [parents’] criticisms focused on matters of ‘public concern,’ as
required by Connick [v. Myers], 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 [1983], and
therefore none of the [parents’] speech was protected by the First Amendment.” Id. 8 Similarly,
prior to Worrell, in Marcum v. Dahl, 658 F.2d 731 (10th Cir. 1981), plaintiffs, university
students, alleged that defendant athletic directors at the university refused to renew plaintiffs’
athletic scholarships because they made comments to the press concerning a basketball coach.
On appeal, the Tenth Circuit concurred with the trial court’s finding that plaintiffs’ comments to
the press were not on matters of public concern and, therefore, were not constitutionally
protected by the First Amendment.
Whether a statement is a matter of public concern is a question of law for the court.
Leverington, 643 F.3d at 726-727. “‘Matters of public concern are those of interest to the
community, whether for social, political, or other reasons.’” Id. at 727 (quoting Brammer–
Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1205 (10th Cir.2007)). In this case,
Plaintiff repeatedly alleges that he was expressing his personal opinion, but fails to allege that his
speech was a matter of public concern. Consistent with his allegations, Plaintiff repeatedly
argues in his Response that his personal opinion is speech, and that he was retaliated against for
8
Connick was decided in the public employment context.
15
expressing such personal opinions to Defendant Thompson, not in front of others, but during a
private conversation concerning his personal academic performance (Response, e.g., pp. 13, 14,
15, 25, 45). As such, his speech did not address a matter of public concern and was, therefore,
not protected.
Plaintiff argues, however, that because he was a university student, his speech need not
be a matter of public concern, relying on Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir.
2004) and cases from other jurisdictions. Axson-Flynn, however, is inapposite as the claim in
that case was for compelled speech in violation of the First Amendment. Here, Plaintiff’s claim
is for retaliation for expressing his personal opinion to Defendant Thompson. (Complaint, pp.
82-83.) Further, while a court in another jurisdiction may have found that a student’s speech
need not be a matter of public concern, e.g., Garcia v. S.U.N.Y. Health Sciences Center of
Brooklyn, 280 F.3d 98, 106 (2nd Cir. 2001) (Stating that “the public concern doctrine does not
apply to student speech in the university setting…but is reserved for situations where the
government is acting as an employer.”), Plaintiff fails to show that such is the law in the Tenth
Circuit. Accordingly, Plaintiff’s speech was not protected by the First Amendment.
In light of this Court’s determination that Plaintiff has failed to sufficiently allege a
violation of his constitutional rights, it follows that the Individual Defendants are also entitled to
qualified immunity. “The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (internal quotation marks and citation omitted). To resolve a claim of
16
qualified immunity, the Court must consider two elements: (1) whether a constitutional violation
occurred, and (2) whether the right violated was “clearly established” at the time of the violation.
Id. at 232. The Court may “exercise [its] sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light of the circumstances in the
particular case at hand.” Id. at 236; accord Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir.
2011). “Qualified immunity is applicable unless the plaintiff can satisfy both prongs of the
inquiry.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009) (internal
quotation marks omitted). Here, Plaintiff fails to satisfy the first prong.
Moreover, even assuming, arguendo, that Plaintiff’s speech need not be a matter of
public concern, Plaintiff has failed to show that the constitutional right to engage in the alleged
speech was “clearly established.” In order for a right to be “clearly established,” “the contours of
the right must be sufficiently clear that a reasonable official would understand that what he is
doing violates that right…in the light of pre-existing law the unlawfulness must be apparent.”
Worrell, 219 F.3d at 1215 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))
(alterations omitted). Accordingly, Plaintiff’s First and Second Claims should be dismissed for
failure to state a claim and based on qualified immunity.
B. Plaintiff’s Claim for Retaliation for Exercising the Right to Refuse Compelled
Speech, Compelled Confession and Compelled Silence (Third Claim)9
Plaintiff’s Third Claim alleges Defendant Thompson engaged in “academic retaliation”
when he refused to sign the remediation plan that contained “compelled speech, compelled
9
This claim was dismissed against the University and the Individual Defendants in their official capacity by Order
dated May 30, 2013. Plaintiff’s Third Claim specifically identifies nine individual Defendants in the title of his
claim. Defendants argue that, to the extent Plaintiff argues he unintentionally omitted any of the Individual
Defendants, their arguments apply equally to them. (Motion, p. 11 at n.7.)
17
confession, compelled silence, and compelled agreement.” (Complaint, e.g., pp. 32, 83.) The
academic retaliation allegedly consisted of assigning Plaintiff an “unfair failing midpoint grade
and final grade,” and terminating him from the pharmacy program. (Complaint, e.g., pp, 32-34,
83.) The “compelled confession” consisted of the statement that: “‘As a result of my
performance, I recognize and understand that I am currently failing this rotation…’”
(Complaint, p. 32 (bold in original).) The “compelled speech” consisted of: “‘…accept the
responsibility to improve my knowledge and behaviors to successfully complete this rotation.’”
(Complaint, p. 32 (bold in original).) The “compelled silence” arises from “‘the ‘behaviors’ that
Thompson required [Plaintiff] to ‘improve’ as a condition ‘to successfully complete the rotation’,
refers to the types of personal opinion or speech that Thompson would not allow [Plaintiff] to
express.” (Complaint, p. 33.) And, the “compelled agreement” consisted of the statements or
acknowledgements in the remediation plan that Plaintiff would be assessed weekly using a
rubric, that he would not pass the rotation if he did not adhere to the plan, and that he understood
the magnitude of his agreement to the plan. (Complaint, p. 33.) Here, the constitutional
protected activity claimed is, essentially, not to be subjected to compelled speech.
If, under Worrell, the compelled speech is required to be a matter of public concern in
order to be constitutionally protected, Plaintiff’s claim fails as his “required” acknowledgement
concerning his private, academic progress is not a matter of public concern. Plaintiff readily
admits his speech is private. (ECF No. 128-1, pp. 46-47.) Plaintiff, however, argues his speech
need not be a matter of public concern, relying on Axson-Flynn, supra (ECF No. 128-1, p. 46).
Defendants argue Plaintiff’s claim fails under the Worrell inquiry, regardless of whether the
18
“matter of public concern” standard applies. Defendants argue that professors may legitimately
address concerns about a student’s progress. The Court agrees, as recognized in Axson-Flynn,
upon which Plaintiff relies.
A threshold element of a First Amendment compelled speech claim is “compulsion.”
Corder v. Lewis Palmer School Dist. No. 38, 566 F.3d 1219, 1231 (10th Cir. 2009). Even if
there is compulsion, a school (or university) may do so “as long as the compulsion is related to a
legitimate pedagogical purpose.” Corder, 566 F.3d at 1231; see Axson-Flynn, 356 F.3d at 1289.
The restrictions need not be the most reasonable or the only reasonable limitations, they only
need to be reasonable. Axson-Flynn, 356 F.3d at 1292.
The school’s methodology may not be necessary to the achievement of its goals
and it may not even be the most effective means of teaching, but it can still be
“reasonably related” to pedagogical concerns. A more stringent standard would
effectively give each student veto power over curricular requirements, subjecting
the curricular decisions of teachers to the whims of what a particular student does
or does not feel like learning on a given day. This [the courts] decline to do.
Axson-Flynn, 356 F.3d at 1292 (italics in original). The courts give “substantial deference to
educators’ stated pedagogical concerns.” Axson-Flynn, 356 F.3d at 1290 (internal quotation
marks omitted).
In this case, assuming a threshold showing of compulsion, Plaintiff’s allegations are
insufficient to show that the remediation plan was not “reasonably related” to pedagogical
concerns. Plaintiff’s own assertions are that Defendant Thompson was an inexperienced and
ineffective professor who made numerous errors of which even Plaintiff’s classmates
complained, that she was highly critical of Plaintiff and failed to provide him with constructive
feedback, that she took exception to his personal opinion that she had high expectations of her
19
interns, and that she required him to be on a remediation plan. All of these allegations support
the conclusion that the remediation plan was reasonably related to pedagogical purposes. As
Defendants argue, a professor should be able to address concerns with a student’s progress
through a remediation plan.
Plaintiff’s conclusory allegations that Defendant Thompson’s March 17, 2011,
observation was a “discriminative,” “undeclared” examination do not salvage his claim. Plaintiff
asserts that he was similarly situated to his 48 classmates, but there are no factual allegations to
support this bald assertion. (Complaint, p. 83.) The factual allegation that his other two
classmates (who had Defendant Thompson as a preceptor) were Caucasians, without more, does
not support the conclusion that the remediation plan was discriminatory.10
In summary, regardless of whether the student’s speech is required to be a matter of
public concern, the Court finds that, under the allegations pled, Plaintiff’s speech was not
“compelled speech,” was not a matter of public concern, and was not constitutionally protected.
Otherwise, instructors would be constitutionally barred from requesting students to acknowledge
notice of poor academic performance or to confirm educational concerns have been addressed.
The Court recognizes there may be instances where a student’s speech constitutes “compelled
speech” subject to constitutional protection, but it need not define the contours of that speech. It
is sufficient to state that the speech alleged here does not meet that standard.
10
Plaintiff does allege that Defendant Thompson evaluated Plaintiff on the more stringent New Point Assignment
System while evaluating his Caucasian classmates on the UWSOP standardized evaluation. But, Plaintiff’s own
allegations show the system was not used. See Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)
(recognizing a plaintiff may plead himself out of a cause of action by alleging facts which undermine his claim);
Blumhagen v. Sabes, No. 94-8022, 78 F.3d 597 (10th Cir. Mar. 4, 1996) (unpublished) (plaintiff conceded facts
which undercut their claim).
20
Plaintiff’s allegations against the “Supervisory Defendants” are similarly insufficient. In
order to state a claim based on supervisory liability, Plaintiff must not only establish the
subordinates violated the Constitution but also demonstrate that “each [supervisor] defendant
took some act with the constitutionally applicable state of mind that caused the alleged
constitutional violation.” Dodds v. Richardson, 614 F.3d 1185, 1200 (10th Cir. 2010); Pahls v.
Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (setting forth elements a plaintiff must
demonstrate). “It is particularly important that plaintiffs make clear exactly who is alleged to
have done what to whom, as distinguished from collective allegations.” Pahls, 718 F.3d at 1225
(internal quotation marks and alterations omitted; italics in original). A plaintiff’s
“undifferentiated contention that ‘defendants’ infringed his rights” is insufficient. Pahls, 718
F.3d at 1226. “[I]t is incumbent upon a plaintiff to ‘identify specific actions taken by particular
defendants’ in order to make out a viable” claim. Pahls, 718 F.3d at 1226 (quoting Tonkovich v.
Kansas Bd. of Regents, 159 F.3d 504, 532 (10th Cir. 1998)) (italics in original). Plaintiff’s
allegations fail to do so. His summary conclusions that “Supervisory Defendants” engaged in
some unidentified custom or practice, were “policymakers,” or adopted “employees’”
discriminatory intent are insufficient to state a claim for compelled speech in violation of the
First Amendment. Accordingly, Plaintiff’s Third Claim fails to state a claim for relief. And, in
the absence of sufficient allegations of a constitutional violation, the Individual Defendants are
also entitled to qualified immunity. See Schneider v. City of Grand Junction Police Dep’t, 717
F.3d 760, 767-68 (10th Cir. 2013); Pahls, 718 F.3d at 1227-1228.
21
C. Plaintiff’s Claims under 42 U.S.C. § 2000d – Discrimination and Retaliation
(Fourth and Fifth Claims)11
Plaintiff alleges he was a student and is a member of a protected class, i.e., an Ethiopian
American. In the Fourth and Fifth Claims, Plaintiff asserts that he was “similarly situated in all
relevant respects” to his 48 classmates and that some of the Individual Defendants were aware
that he filed a “discrimination complaint” in 2010. Plaintiff’s Fourth Claim appears to be based
on Defendant Thompson’s alleged 2011 “intentional” discrimination against Plaintiff because of
his race and national origin, and the Supervisory Defendants’ alleged failure to address such
discrimination. Plaintiff’s Fifth Claim appears to be based on allegations concerning his failing
grade in the Pharmacokinetics course in the spring of 2010 which was changed from a “D” to a
“C.” Plaintiff contends his instructors’ denial of credit in exams 2 and 3 of the Pharmacokinetics
course was based on his race and national origin, and that certain Individual Defendants were
policymakers or had authority to address such discrimination but failed to do so. Plaintiff also
asserts that Defendant Hornecker retaliated against Plaintiff for opposing discrimination by
denying him credit for his correct work in exam 3. Defendants argue Plaintiff fails to state a
claim for retaliation or discrimination. The Court agrees.
First, Plaintiff’s bare allegation that Defendant Hornecker “retaliated” against Plaintiff
for opposing discrimination is insufficient to state a claim for retaliation. There are no factual
allegations in support of such alleged retaliation. This bare allegation is also contradicted by
11
Plaintiff’s Fourth Claim identifies Defendants Buchanan, Russell, Steiner, Jones, Vandel, Sullivan, Krueger,
Harshberger, and Thompson, and the Fifth Claim identifies Defendants Vandel, Hornecker, Stump, Nelson and
John/Jane Doe 1 & 2. However, Plaintiff’s Response asserts Defendant Bennett was unintentionally omitted from
these claims (Response, p. 34 at n.8, p. 35 at n.9). Regardless, Defendants argue that, to the extent Plaintiff asserts
he unintentionally omitted Defendants not specifically named, their arguments apply to the omitted Defendants as
well. (Motion, p. 15 at n.9 & n.10.)
22
other allegations. For example, there are no allegations that Plaintiff “opposed discrimination”
prior to exam 3. (Complaint, p. 11.) Instead, Plaintiff alleges that it was after his exam 3 when
he complained about his grade and “warned” that he was going to sue. Further, there are no
allegations that he complained of discrimination when he threatened to sue. (Complaint, pp. 1112.) Instead, there is only a naked allegation that Plaintiff’s termination as a result of the failing
grade was “discriminative,” which does not suffice to state a claim.
Similarly, Plaintiff has failed to plausibly plead a claim for discrimination under Title VI.
Under Title VI of the Civil Rights of Act of 1964, “[n]o person…shall, on the ground of race,
color, or national origin, be 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. In order to state a prima facie case of discrimination, a plaintiff must show:
(1) that he is a member of a protected class; (2) that he suffered an adverse action; and (3) that
similarly situated comparators were treated differently.12 See Buhendwa v. University of Colo. at
Boulder, No. 05-1526, 214 F. App’x 823, 828, 2007 WL 241283, at *4 (Jan. 30, 2007)
(unpublished); MacKenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1277 (10th Cir. 2005).
Title VI, however, reaches only instances of intentional discrimination. Alexander v. Sandoval,
532 U.S. 275, 281 (2001).
In this case, there are insufficient specific, nonconclusory factual allegations to support
the inference that Plaintiff’s grades were the product of intentional discrimination concerning his
12
In Sorbo v. United Parcel Serv., 432 F.3d 1169, 1173 (10th Cir. 2005), the Tenth Circuit indicated that “a prima
facie case may not require a ‘similarly-situated person’ comparison at all,” and that the broader requirement of “a
showing of ‘circumstances giving rise of an inference of discrimination’” may be sufficient. In this case, although
Plaintiff has chosen the “similarly-situated person” comparison to establish the third factor of a prima facie case
(Complaint, e.g., p. 4), the Court need not reach this factor as it finds the allegations of intentional discrimination
insufficient.
23
2010 Pharmacokinetics course grade from his “five instructors.” Instead, there is the bare
allegation that their actions were “discriminative.” As such, Plaintiff’s Fifth Claim fails to state
a claim for relief.
As to Defendant Thompson, she gave Plaintiff the failing grade in Internal Medicine I in
2011, but Plaintiff does not assert that Defendant Thompson made any references to, or
comments concerning, his race or national origin. Instead, Plaintiff alleges numerous actions,
much of it innocent, which are insufficient to support the inference that Defendant Thompson
graded Plaintiff based on her assessment of Plaintiff’s academic abilities, assessments to which
Plaintiff disagreed. Such assessments, even if erroneous, are consistent with Defendant
Thompson’s duties as Plaintiff’s professor and do not violate any of Plaintiff’s rights under Title
VI. There are, however, a few allegations which, properly pled with sufficient factual support,
may nudge Plaintiff’s claim across the line from conceivable to plausible. Here, for example,
Plaintiff alleges that Defendant Thompson would not allow Plaintiff to take notes at an earlier
than his scheduled time. Although Plaintiff alleges that his classmates were allowed to take
notes as much as they wanted, there are, for example, no factual allegations as to whether they
were doing so earlier than their scheduled time (as Plaintiff had done), or that Plaintiff was also
precluded from taking notes during his scheduled time. Such pleading deficiencies against
Defendant Thompson may be curable by amendment and, as ordered below, Plaintiff will be
allowed to do so.
Defendants also contend that the Individual Defendants are entitled to qualified
immunity. Subject to potential amendment as referenced above, the Court agrees. On this
24
record, Plaintiff has failed to demonstrate that these Defendants violated any statutory or
constitutional rights and/or failed to sufficiently allege any personal involvement. See Schneider
v. City of Grand Junction Police Dep’t, 717 F.3d at 767-68; Pahls, 718 F.3d at 1227-1228.
Accordingly, Plaintiff’s Fourth and Fifth Claim are subject to dismissal for failure to state a
claim under Title VI, and because the Individual Defendants are entitled to qualified immunity.
As stated, however, Plaintiff will be allowed to amend his Fourth Claim as against Defendant
Thompson.
D. Plaintiff’s Claim under 42 U.S.C. § 1983 for Violation of Equal Protection and
Due Process (Sixth Claim)13
In the Sixth Claim, Plaintiff alleges that “”Defendants” denied him equal protection and
due process on the basis of his race and national origin.
1. The Supervisory Defendants
As an initial matter, Defendants argue that Plaintiff’s claim against the Supervisory
Defendants must be dismissed based on supervisory liability for failure to show a nexus between
the alleged constitutional violations and Defendants who Plaintiff claims are responsible; for
failure to allege personal involvement by the Supervisory Defendants; and for failure to allege
the required state of mind. As previously discussed, Plaintiff must sufficiently allege that “each
[supervisor] defendant took some act with the constitutionally applicable state of mind that
caused the alleged constitutional violation.” Dodds, 614 F.3d at 1200. In this case, Plaintiff has
13
This claim as against the University and the Individual Defendants in their official capacities were dismissed by
Order dated May 30, 2013. What remains are Plaintiff’s claims against the Individual Defendants. Plaintiff’s claim
is stated to be directed against Defendants Buchanan, Russell, Steiner, Jones, Vandel, Sullivan, Krueger,
Harshberger, Thompson, and Hornecker (Complaint, p. 94), but his Response states he unintentionally omitted
Defendants Stump, Nelson, and Bennett. (Response, p. 37 at n. 11.) Defendants assert their arguments apply
equally to the omitted Defendants. (Motion, p. 19 at n.13.)
25
failed to do so. Instead, as with his other allegations concerning the Supervisory Defendants,
Plaintiff fails to identify who did what, relying on collective allegations. Accordingly, Plaintiff’s
allegations against the Supervisory Defendants are insufficient to state a claim. Pahls, 718 F.3d
at 1226.
2. The Equal Protection Claim
Defendants argue that Plaintiff has failed to sufficiently allege the elements of an equal
protection claim, and that they are entitled to qualify immunity. Again, subject to potential
amendment as against Defendant Thompson, the Court agrees.
The Equal Protection Clause provides that “[n]o state shall ... deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This Clause
directs that “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne
Living Center, Inc., 473 U.S. 432, 439 (1985); see Coal. for Equal Rights, Inc. v. Ritter, 517 F.3d
1195, 1199 (10th Cir. 2008). In order to plead an equal protection claim, a plaintiff “must
demonstrate that the defendant’s actions had a discriminatory effect and were motivated by a
discriminatory purpose.” Marshall v. Columbia Lea Regional Hosp., 345 F.3d 1157, 1168 (10th
Cir. 2003). A plaintiff must allege that the defendant intentionally discriminated against him.
See Lindsey v. Thomson, No. 06-7114, 275 F. App’x 744, 746, 2007 WL 2693970, at *3 (10th
Cir. Sept. 10, 2007) (unpublished).
Plaintiff alleges he was similarly situated in all relevant aspects to his 48 classmates who
graduated in May 2011. (Complaint, p. 94.) There are, however, insufficient factual allegations
to support this bare allegation. Allegations that two (or three) of his classmates were Caucasians,
26
standing alone, are insufficient to show he was treated differently. Allegations that he was
allegedly subjected to the New Point Assignment System which would only allow grades of
100%, 50%, or minus 100%, fail to support his claim where his other allegations show he
received a grade of 64% and 66%. (Complaint, pp. 23, 42, 44.) “[A] pro se complainant can
plead himself out of court by pleading facts that undermine the allegations set forth in his
complaint,” Henderson v. Sheahan, 196 F.3d at 846, as Plaintiff has done so here. Plaintiff’s
allegations that his dismissal from the pharmacy program resulted from discrimination suffer
from the same defect – the failure to sufficiently allege conduct by Defendants constituting
discrimination. In short, Plaintiff fails to sufficiently plead factual matter to support his
conclusory allegations that he was similarly situated, that he was treated differently, or that
Defendants intentionally discriminated against him. A complaint will not suffice “if it tenders
naked assertions devoid of further factual enhancement.” Ashcroft, 556 U.S. at 678 (internal
quotation marks and alterations omitted). And, in addition, in the absence of allegations
demonstrating a violation of a constitutional right, the Individual Defendants are entitled to
qualified immunity. Pearson, 555 U.S. at 231-232; see Leverington, 643 F.3d at 732.
Accordingly, Plaintiff’s equal protection claim is subject to dismissal for failure to state a claim
and qualified immunity.
However, for the reasons stated in the Court’s analysis of the Fourth Claim, the Court
will allow Plaintiff to amend his Complaint to plead additional factual matters in support of his
Sixth Claim based on equal protection against Defendant Thompson. For example, among other
27
matters, factual allegations in support of his conclusion that the other 48 pharmacy students are
similarly situated are required.
3. Procedural Due Process Claim
Plaintiff alleges that Defendants deprived him of his property and liberty interest in
pursuing a Doctor of Pharmacy degree without due process. Plaintiff argues he had a property
interest14 in “continuing” his enrollment in the School of Pharmacy under the Wyoming
Constitution and “by contract,” citing to a number of cases. (Response, pp. 47-49.) Defendants
argue Plaintiff had no property interest in receiving either a passing grade or a degree from the
UWSOP, and, even assuming he had any property interest, he was afforded any process that was
due. Defendants, however, provided no discussion or legal authority in support of their
argument that no property interest existed. Accordingly, the Court will consider that argument
abandoned. See Cahill v. American Family Mutual Ins. Co., 610 F.3d 1235, 1238 (10th Cir.
2010) (the court will not fill the gaps in undeveloped arguments unsupported by citations to
relevant authority). The Court will assume, without deciding, that Plaintiff has stated a
cognizable property interest and address whether he has sufficiently alleged a deprivation of any
process which may be due.
To state an actionable procedural due process claim, a plaintiff must demonstrate: (1) the
deprivation of a liberty or property interest; and (2) that he was not afforded an appropriate level
of process. See Ripley v. Wyoming Med. Center, Inc., 559 F.3d 1119, 1122 (10th Cir. 2009);
14
Plaintiff’s Complaint also contains one allegation that his liberty interest was violated “by Defendant’s false
stigmatizing information and last minutes termination from the program….” (Complaint, p. 96.) Defendants fail to
address this allegation. Plaintiff’s Response cursorily references a “liberty” interest without analysis. To the extent
Plaintiff has not abandoned his assertion that he has a “liberty” interest, the Court finds Plaintiff’s conclusory
allegations insufficient to state a claim for violation of due process as to any alleged liberty interest.
28
Couture v. Bd. of Educ. of Albuquerque Pub. Sch., 535 F.3d 1243, 1256 (10th Cir. 2008).
“When a due process claim is premised on a deprivation of property, the court first must define
the precise nature of the property threatened by the state.” Jennings v. City of Stillwater, 383
F.3d 1199, 1205 (10th Cir. 2004).
In this case, Plaintiff alleges a property interest is his continued enrollment in the Doctor
of Pharmacy program and the pursuit of, i.e., the receipt of, such degree. In evaluating the
Defendants’ alleged actions in dismissing Plaintiff from the program, the Court is mindful that
“the decision whether to dismiss a student for academic reasons requires an expert evaluation of
cumulative information and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking, and that when judges are asked to review the substance of a
genuinely academic decision, they should show great respect for the faculty’s professional
judgment.” Gossett v. Okla. ex rel. Board of Regents for Langston Univ., 245 F.3d 1172, 1181
(10th Cir. 2001) (internal quotation marks, alterations, and citations omitted). Thus, “[w]hen a
school makes an ostensibly academic judgment about a student, the procedural requirements of
the Due Process Clause are satisfied if the student is given prior notice of the deficiencies in his
academic performance and if the challenged decision is careful and deliberate.” Gossett, 245
F.3d at 1181 (internal quotation marks omitted). However, prior notice is not always required as
“the timing and content of the notice” will depend on the competing interests involved. See
Couture, 535 F.3d at 1257 (quoting Goss v. Lopez, 419 U.S. 565, 578-579 (1975)). A
university’s failure to follow its own rules or regulations does not, by itself, give rise to a
29
constitutional claim for violation of procedural due process. Trotter v. Regents of the Univ. of N.
M., 219 F.3d 1179, 1185 (10th Cir. 2000).
In this case, Plaintiff argues that he was not dismissed for academic reasons but, rather,
for an impermissible ulterior motive, i.e., discrimination or retaliation. But, as discussed above,
Plaintiff has failed to sufficiently allege that he was subjected to unlawful discrimination or
retaliation.15 Instead, as demonstrated by Plaintiff’s quotations of alleged statements made by
various Defendants, they made an ostensibly academic judgment about Plaintiff’s abilities as a
pharmacy student. As such, when courts are asked to review “the substance of genuinely
academic decisions,” they should exercise judicial deference in favor of the faculty’s
professional judgment. Gossett, 245 F.3d at 1181.
A review of Plaintiff’s Complaint shows he received a failing grade in Pharmacokinetics
in the spring of 2010. Plaintiff appealed, resulting in a grade change from a “D” to a “C.”
Thereafter, he took the Internal Medicine I rotation course taught by Defendant Thompson.
Defendant Thompson advised Plaintiff of a number of academic deficiencies in his performance
in the course. Defendant Thompson asked Plaintiff to meet before his midpoint evaluation, so
that she may observe and assist him. At his midpoint evaluation, Defendant Thompson offered
Plaintiff a remediation plan, which he refused to sign. When Defendant Thompson assigned
Plaintiff a failing midpoint grade, he complained to a number of Defendants, and received
15
Here, Plaintiff identified Defendants Thompson (for Internal Medicine I) and Defendants Stump, Hornecker, and
Nelson (and two unidentified instructors) (for the Pharmacokinetics course) as the persons who assigned him the
failing grades. Although the Court finds that Plaintiff should be allowed to amend his Fourth Claim and Sixth Claim
based on equal protection as against Defendant Thompson, this finding does not lead to the conclusion that
amendment should be afforded as to the Sixth Claim for procedural due process. Plaintiff’s allegations are
insufficient to sustain a claim that Defendant Thompson owed Plaintiff some procedural due process and failed to
provide the same.
30
numerous responses. (Complaint, e.g., p. 30.) Plaintiff was offered a leave of absence and an
opportunity to request an incomplete in the course, but he never requested a leave. (Complaint,
p. 23.) When Plaintiff received his final evaluation, he again made complaints, and received
responses. (Complaint, pp. 31-32.) Plaintiff appealed to the UWCHS, and the Health Sciences
Student Appeals Board (“HSSAB”), consisting of three students and three faculty members, held
a hearing. (Complaint, e.g., pp. 62-64) Plaintiff also complained to the “University’s
Affirmative Action Officer,” who apparently conducted an investigation which involved taking
testimony and then denied his complaints. She also advised Plaintiff to file his complaint with
the Office of Civil Rights at the Department of Education and provided him with information to
do so. (Complaint, e.g., pp. 55-59.) In light of these, and other, procedures, Plaintiff has failed
to sufficiently allege that he was not afforded any process which was due.
4. Substantive Due Process Claim
Defendants argue that any substantive due process claim fails as none of the actions
alleged could be considered arbitrary, capricious, or conscience-shocking. Plaintiff relies on his
allegations of an alleged impermissible, discriminatory motive along with the Regents of the
Univ. of Michigan v. Ewing, 474 U.S. 214 (1985) and Gossett decisions.
“[A] plaintiff asserting a substantive due process claim based on an academic decision
must show that the decision was the product of arbitrary state action rather than a conscientious,
careful and deliberate exercise of professional judgment.” Gossett, 245 F.3d at 1182 (citing
Ewing, 474 U.S. at 224-225). “A plaintiff may make such a showing by evidence that the
challenged decision was based on ‘nonacademic or constitutionally impermissible reasons,’
31
rather than the product of conscientious and careful deliberation.” Gossett, 245 F.3d at 1182
(quoting Ewing, 474 U.S. at 224-25). In this case, it was the HSSAB’s decision that ultimately
resulted in Plaintiff’s termination from the program, and Plaintiff has failed to sufficiently allege
factual support for his contention that this decision was based on nonacademic or constitutionally
impermissible reasons. Instead, Plaintiff relies on the conclusory allegations that the HSSAB
lacked impartiality when those members determined to reject Plaintiff’s appeal. (Complaint, p.
66.) Plaintiff has, therefore, failed to state a claim for violation of any substantive due process
rights.
E. Plaintiff’s Claims under 42 U.S.C. § 1981(a), (b), and (c) for Retaliation and
Interference with Right to Make and Enforce a Contract (Seventh and Eighth
Claims)
Defendants argue that, assuming Plaintiff had an implied agreement (contract) with the
University that he would be allowed to continue his education unless terminated for poor
performance or rule violations, Plaintiff’s claims nonetheless fail for the following reasons: (1)
the University and Individual Defendants in their official capacities are entitled to Eleventh
Amendment immunity; (2) Plaintiff fails to sufficiently allege the actions complained of were
racially motivated or purposefully discriminatory, which bars such claims against all Defendants;
(3) Plaintiff fails to allege personal involvement, which bars the claims against Defendants
Buchanan, Russell, Steiner, Jones, Vandel, Sullivan, Krueger, and Harshberger; and (4) the
Individual Defendants are entitled to qualified immunity. Where a defendant asserts Eleventh
Amendment immunity, addressing the threshold jurisdictional issue by the Court is obligatory.
United States ex rel. Burlaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008).
32
1. Eleventh Amendment Immunity on behalf of the University and Individual
Defendants in their Official Capacities
The Eleventh Amendment ordinarily bars federal court jurisdiction over private suits
against a state and their agencies unless Congress has abrogated the states’ immunity or the state
has waived its immunity. Blatchford v. Native Village of Noatak & Circle Village, 501 U.S.
775, 785-786 (1991); Pettigrew v. Okla. ex rel. Okla. Dep’t of Pub. Safety, 722 F.3d 1209, 1212
(10th Cir. 2103). Claims against state officials in their official capacities are also barred as, in
essence claims, the claims are against the state entity. Kentucky v. Graham, 473 U.S. 159, 16566 (1985). The immunity applies to preclude a plaintiff from seeking a declaration that a state
officer has violated federal rights in the past, or seeking damages. It does not, however, apply
where the plaintiff is seeking prospective enforcement of his federal rights. See Ex parte Young,
209 U.S. 123, 159-160 (1908).
In this case, the requirements for immunity under the Eleventh Amendment are present.
Here, the University is an “arm” of the state, and Plaintiff’s suit against the Individual
Defendants in their official capacities is, in essence, a suit against the University. See Gressley v.
Deutsch, 890 F. Supp. 1474, 1487-88 (D. Wyo. 1994) (finding the University of Wyoming is to
be treated as an “arm” of the state). Plaintiff’s Seventh and Eighth Claims are brought under 42
U.S.C. § 1981, but a state’s Eleventh Amendment immunity has not been abrogated with respect
to § 1981 claims. See Ellis v. Univ. of Kansas Med. Center, 163 F.3d 1186, 1196 & n.13 (10th
Cir. 2010); Patillo v. Larned State Hosp., No. 11-3184, 462 F. App’x 780, 783, 2012 WL
256023, at *2 (10th Cir. Jan. 30, 2012) (finding dismissal of § 1981 and other federal claims
against state entities correct as immunity had not been abrogated or waived) (unpublished).
33
Plaintiff does not argue Defendants have waived this defense.16 Instead, Plaintiff argues this
defense is “time-barred,” or is inapplicable because he satisfied the requirements of the Colorado
Governmental Immunity Act (“CGIA”). But, the defense is not time-barred, see Section I,
supra, and the CGIA has no application to the Eleventh Amendment immunity defense. Finally,
Plaintiff seeks only damages.17 (Complaint, p. 100.) Accordingly, Plaintiff’s Seventh and
Eighth Claims under § 1981 against the University and the Individual Defendants in the official
capacities are barred by the Eleventh Amendment immunity. See Gressley, 890 F. Supp. at
1487-89 (Eleventh Amendment bars suit for money damages or retroactive relief against
University of Wyoming, its president and trustees in their official capacities).
2. Failure to Sufficiently Allege Racial Motivation or Purposeful Discrimination
Section 1981 of 42 U.S.C. provides:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every
State and Territory to make and enforce contracts, to sue, be parties, give evidence, and
to the full and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and to no other.
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship.
16
To the extent Plaintiff’s “time-barred” argument may be construed as a waiver argument, any waiver must be
knowing and voluntary, and the test for determining whether there has been a waiver is a stringent one. Pettigrew,
722 F.3d at 1213. For the same reasons why Defendants’ defense is not time-barred, no waiver has been shown.
17
Plaintiff’s prayer for relief also seeks declaratory, injunctive and “other equitable relief,” but there is no indication
in the Complaint or Response that such relief sought is associated with the § 1981 claim.
34
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.
(Bold in original.)
In order to state a claim under § 1981, Plaintiff must allege: (1) he is a member of a
protected class; (2) the defendants intended to discriminate on the basis of race; and (3) the
discrimination interfered with an activity protected under § 1981, here, the making and enforcing
of an alleged contract. Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d 1091, 1102 (10th Cir.
2001). Plaintiff must sufficiently allege that Defendants’ actions were intentionally or
purposefully discriminatory. General Bldg. Contractors Ass’n v. Pennsylvania, 458 U.S. 375,
389-390 (1982); see Reynolds v. School Dist. No. 1, 69 F.3d 1523, 1532 (10th Cir. 1995).
In the Seventh Claim, Plaintiff alleges Defendants Vandel, Hornecker, Stump, and
Nelson interfered with his implied agreement with the University that he be allowed to continue
his education and awarded a degree absent poor performance or a rule violation. Plaintiff
cursorily alleges that Defendants Hornecker, Stump, Nelson, and two unidentified instructors
denied him credit for correct work on his Pharmacokinetics course, and that such denial was
based on Plaintiff’s race and national origin. Plaintiff also conclusorily alleges that Defendants
Hornecker and Vandel were aware that the grade assigned was a pretext for discrimination.
Plaintiff’s allegations, however, are unsupported by any factual allegations of discriminatory
intent or purpose sufficient to state a claim under § 1981.
Plaintiff’s Eighth Claim is similarly deficient. That claim arises from Defendant
Thompson’s issuance of a failing midpoint and final grade in the Internal Medicine I rotation
35
course. Here, Plaintiff’s bare, conclusory allegations are insufficient to show racial,
discriminatory animus on the part of Defendant Thompson or the other identified Individual
Defendants. See Ashcroft, 556 U.S. at 678 (“Nor does a complaint suffice if it tenders ‘naked
assertions’ devoid of ‘further factual enhancement.’”) (quoting Twombly, 550 U.S. at 557
(internal brackets omitted)).
And, in the absence of factual allegations demonstrating a constitutional or federal
violation, Individual Defendants are also entitled to qualified immunity as to both claims. See
Pahls, 718 F.3d at 1227 (qualified immunity applies unless plaintiff shows the public official
violated plaintiff’s constitutional or federal protected rights).
Furthermore, Plaintiff’s allegations against the Supervisory Defendants are also deficient
as he must not only establish the subordinates violated the Constitution but also demonstrate that
“each [supervisor] defendant took some act with the constitutionally applicable state of mind that
caused the alleged constitutional violation.” Dodds, 614 F.3d at 1200. Plaintiff’s allegations fail
to do so. His summary conclusions that “Supervisory Defendants” engaged in some unidentified
custom or practice, were “policymakers,” or adopted “employees’” discriminatory intent are
insufficient to state a claim under § 1981.
Nonetheless, as previously stated, Plaintiff will be allowed to amend his Complaint as to
Defendant Thompson, in her individual capacity, as to the Eighth Claim.
36
F. Plaintiff’s Claim under 42 U.S.C. § 1983 for Tampering with Evidence (Ninth
Claim)
Plaintiff’s Ninth Claim alleges Defendants intended to tamper with evidence so as to
deny him access to the court.18 Defendants assert that Plaintiff has failed to allege facts to show
he was denied access to court. In Christopher v. Harbury, 536 U.S. 403 (2002), the Supreme
Court identified two categories of “denial of access to courts” claims, which the Tenth Circuit
has described as follows:
[T]he Supreme Court assumed that an “access-to-the-courts” claim existed, and
then proceeded to discuss the elements of this assumed claim. The Court divided
access-to-the courts claims into two categories. The first, termed “forward
looking claims,” are cases where official action frustrates a plaintiff’s ability to
bring a suit at the present time. Classic examples include suits claiming that the
denial of law library privileges prevents prisoners from effectively filing claims of
alleged prison abuse. The second class, termed “backwards looking claims,” arise
when plaintiffs allege that a specific claim “cannot be tried (or tried with all the
evidence) because past official action caused the loss or inadequate settlement of
a meritorious case.” In this way, the official action is said to have “‘rendered
hollow the plaintiff’s right to seek redress’” in the courts. At least some courts
have conceptualized this harm as a denial of access to the courts.
***
While [the Supreme Court] was careful not to endorse the backwards
looking claim, it held that an element of any backwards looking claim is for the
complaint to “identify a remedy that may be awarded as recompense but not
otherwise available in some suit that may yet be brought.”
Jennings v. City of Stillwater, 383 F.3d at 1208-09 (internal brackets and citations
omitted).
18
This claim was dismissed against the University and Individual Defendants in their official capacities by Order
dated May 30, 2013. Defendants contend this claim must also be dismissed against the defendants specifically
identified in that claim, namely, Defendants Jones, Vandel, Sullivan, Harshberger, and Thompson, in their
individual capacities. And, to the extent Plaintiff unintentionally omitted the remaining Individual Defendants, in
their individual capacities (Response, p. 41 at n.15), Defendants contend their arguments apply equally to such
omitted Defendants. (Motion, p. 32 at n.18.)
37
In this case, Plaintiff does not allege that any Defendant frustrated his ability to bring a
suit at the present time; therefore, precluding a “forward looking claim.” Instead, Plaintiff
appears to be asserting a backwards looking claim, alleging certain Defendants tampered with
evidence. The ultimate object in such a claim is “the judgment in the access claim itself, in
providing relief obtainable in no other suit in the future.” Christopher, 536 U.S. at 414. Thus,
the plaintiff must identify a “‘nonfrivolous, arguable’ underlying claim,” describe the official’s
acts frustrating the litigation, and identify a remedy that may be awarded as recompense.
Christopher, 536 U.S. at 415. “[T]he underlying cause of action and its lost remedy must be
addressed by allegations in the complaint sufficient to give fair notice to a defendant.”
Christopher, 536 U.S. at 416.
In this case, Plaintiff’s allegations fall short. First, Plaintiff alleges Defendant Thompson
“forced” him to endorse and sign the “forced confession,” i.e., the remediation plan, intending to
tamper with evidence. (Complaint, p. 104.) Plaintiff, however, alleges that he, in fact, refused to
sign the plan. (Complaint, p. 83 at ¶247.) Second, Plaintiff alleges that Defendant Sullivan
suggested Plaintiff request an incomplete grade and a leave of absence, intending to cause
Plaintiff’s technical termination from the pharmacy program. (Complaint, pp. 105-106.) Third,
Plaintiff alleges that Defendant Jones attempted to silence Plaintiff by warning him his academic
appeals would not be supported if he continued to raise discrimination. (Complaint, p. 106.)
Finally, Plaintiff alleges that Defendant Vandel discarded Plaintiff’s 2010 petitions to the
UWSOP Student Affairs Committee. (Complaint, p. 106.) These allegations, however, are
insufficient to state an access to court claim. The allegations fail to identify an underlying cause
38
of action that the alleged actions, which appear far from deceptive, had compromised. The
allegations also fail to identify a remedy independent of relief that might be available on the
other claims in the Complaint. Accordingly, Plaintiff has failed to state a claim for denial of
access to the courts.
G. Plaintiff’s Claims for Conspiracy under 42 U.S.C. § 1985(3) (Tenth and Eleventh
Claims)19
Plaintiff’s Tenth and Eleventh Claims allege that Defendants engaged in a conspiracy to
violate Plaintiff’s constitutional and federal rights, i.e., equal protection, due process, freedom
from discrimination, freedom of speech, and right to enforce contracts. In essence, Plaintiff
alleges these Defendants conspired to terminate him from the pharmacy program. Defendants
argue that Plaintiff has failed to state a claim, and that they are entitled to qualified immunity.
In order to succeed on a § 1985(3) claim, Plaintiff must show: (1) the existence of a
conspiracy; (2) intended to deny him equal protection under the laws or equal privileges and
immunities of the laws; (3) resulting in an injury or deprivation of federally-protected rights; and
(4) an overt act in furtherance of the object of the conspiracy. Murray v. City of Sapulpa, 45
F.3d 1417, 1423 (10th Cir. 1995); Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). “[A]
valid claim must, of course, involve a conspiracy.” Tilton, 6 F.3d at 686. In order to meet the
requirements of a conspiracy, “a plaintiff must allege specific facts showing an agreement and
concerted action amongst the defendants. … Conclusory allegations of conspiracy are
19
These claims against the University and Individual Defendants in their official capacities were dismissed by Order
dated May 30, 2013. Plaintiff did not identify all Individual Defendants in these claim, but asserts that he
unintentionally omitted Buchanan, Hornecker, Stump, Nelson and Bennett from Claim 10, and Buchanan, Russell,
Steiner, Jones, Sullivan, Krueger, Harshberger, Thompson and Bennett from Claim 11. (Response, p. 44 at n.17.)
Defendants contend that to the extent Plaintiff argues he unintentionally omitted Individual Defendants, their
arguments apply equally to the omitted Defendants. (Motion, p. 36 at n. 20 & n. 21.)
39
insufficient.” See Tonkovich, 159 F.3d at 533 (addressing allegations of conspiracy as a basis for
a § 1983 claim). Further, § 1985(3) applies “only to conspiracies motivated by ‘some racial, or
perhaps otherwise class-based, invidiously discriminatory animus.’” Tilton, 6 F.3d at 686
(quoting Griffin v. Breckenridge, 403 U.S. 88, 101–02 (1971)).
In this case, Plaintiff has failed to sufficiently allege the element of a § 1985(3) claim.
First, Plaintiff’s allegations in support of his claim are merely conclusory and do not provide any
factual basis to support an agreement or concerted action amongst any of Defendants, much less
an agreement motivated by racial or national origin discrimination. Next, Plaintiff’s assertions
of intent are similarly deficient, as they are nothing more than bare allegations. Third, as the
Court found previously in this Order, Plaintiff has failed to sufficiently plead an equal protection
or other constitutional or federal claim on which the § 1985(3) claim can be based. Accordingly,
Plaintiff has failed to state a claim based on § 1985(3) on his Tenth and Eleventh Claims for
relief.
H. Plaintiff’s State Law Claims for Intentional Infliction of Emotional Distress and
Negligent Infliction of Emotional Distress (Thirteen and Fourteenth Claims)
Plaintiff’s tort claims based on state law are asserted against all Individual Defendants
except for Defendant Bennett. (Complaint, pp. 113, 116; Motion, p. 40 at n. 23; Response, pp.
45 at n.18, 32 at n.6.) Plaintiff alleges these Defendants engaged in various wrongful acts as
instructors or administrators for the UW or UWSOP. Defendants argue these claims fail
because: (1) they are barred by the WGCA; and (2) Plaintiff has failed to state a claim for
intentional or negligent infliction of emotional distress. In light of the Court’s agreement that
these claims are barred by the WGCA, it need not reach Defendants’ second argument.
40
With certain exceptions not applicable here, “[t]he WGCA grants immunity against tort
claims to the State, all local entities, and their officials and employees acting within the scope of
their duties, unless that immunity has been expressly waived.” Beus v. Uinta Cnty. Bd. of Cnty.
Comm’rs, No. 04-8013, 143 F. App’x 945, 949, 2005 WL 1840174, at *3 (10th Cir. Aug. 4,
2005); see Wyo. Stat. Ann. §§ 1-39-103, 1-39-104(a); Brockman v. Wyo. Dep’t of Family Servs.,
342 F.3d 1159, 1169 (10th Cir. 2003) (WGCA barred state tort claim of intentional infliction of
emotional distress). The immunity covers public employees acting not only within their official
capacity but also in their individual capacity. Wyo. Stat. Ann. §§ 1-39-103(a)(iv)(A); see
Brockman, 342 F.3d at 1169.
In this case, the tort claims fall squarely within the WGCA. The UW, UWSOP, and
UWHSC are Wyoming governmental entities, see Wyo. Stat. Ann. § 1-39-103(a)(i), and the state
law claims are directed against employees of the University. (Complaint, pp. 5-7.) The WGCA
has not excepted the tort claims alleged from its coverage. Plaintiff alleges “Defendant
institutes’ agents” were acting within the “routine course and scope of their employment and
official role.” (Complaint, pp. 114, 116.) The Court also so finds, as Plaintiff’s allegations
concern grading, class absences, and/or academic and related appeals. These actions “fall
squarely within the scope of duties” of the instructors or administrators. See Beus, 2005 WL
1840174 at *3; Brockman, 342 F.3d at 1169. Accordingly, the WGCA bars Plaintiff’s emotional
distress claims.
41
I. Plaintiff’s Claims against Defendant Buchanan
As a final argument, Defendants contend Defendant Buchanan, in his individual and
official capacities, should be dismissed entirely from this Complaint. Plaintiff alleges he does
not know Defendant Buchanan, the President of UW. (Complaint, pp. 5, 70.) But, Plaintiff
alleges that he wrote (emailed) a complaint to Defendant Buchanan about discrimination, but that
Defendant Buchanan’s assistant advised Plaintiff that concerns of unfair treatment based on
discrimination are addressed by the University’s Affirmative Action Officer, Defendant Russell.
The assistant also forwarded Plaintiff’s email to Defendant Russell and provided Plaintiff
Defendant Russell’s phone number. Plaintiff sent a second email to Defendant Buchanan, and
the assistant again advised that Defendant Buchanan did not handle such complaints. Plaintiff
thereafter emailed his complaints to Defendant Russell and copied Defendant Buchanan.
Plaintiff alleges that Defendant Buchanan had the authority to address the discrimination but
failed to do so. (Complaint, pp. 75-76.) Defendants argue such allegations, without more, are
insufficient to state any claim against Defendant Buchanan. The Court agrees. The Court has
previously discussed the bases for dismissal of Plaintiff’s claims for failure to state a claim, and
for dismissal based on qualified immunity, Eleventh Amendment immunity, and immunity under
the WGCA. For the reasons previously stated, the claims against Defendant Buchanan, in any
capacity, are also dismissed.
42
V.
CONCLUSION
Based on the foregoing, Plaintiff’s remaining claims are dismissed as set forth below.
Further, Plaintiff is granted leave to file an amended complaint as to Defendant Thompson, in
her individual capacity, as to his Fourth Claim, Sixth Claim for violation of equal protection, and
Eighth Claim for relief. Plaintiff’s amended complaint shall set those factual allegations which
he contends supports such claims. Further, without leave of Court, Plaintiff’s amended
complaint shall not exceed twenty (20) pages. Repetitive, redundant, or conclusory allegations
will not suffice and may be stricken by the Court sua sponte. It is therefore ORDERED
1. That Defendants’ Motion to Dismiss (ECF No. 91) is GRANTED and Plaintiff’s
remaining claims are hereby dismissed with prejudice as to all Defendants except as
follows:
a) As to the Seventh and Eighth Claims against the University and Individual
Defendants (as those terms are defined above) in their official capacities, dismissal
based on Eleventh Amendment immunity is dismissed without prejudice; and
b) As to Defendant Thompson, in her individual capacity, the Fourth Claim, Sixth
Claim based on alleged violation of equal protection, and Eighth Claim are dismissed
without prejudice with leave to amend as stated in paragraph 2 below;
2. That Plaintiff is granted until March 25, 2015, in which to file an amended complaint as
to Defendant Thompson, in her individual capacity, with respect to the Fourth Claim,
Sixth Claim for violation of equal protection, and Eighth Claim for Relief only. Failure
to do so will result in the closure of this case; and
43
3. That all other pending motions are denied as MOOT.
DATED this 11th day of March, 2015.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge
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