WALLER v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA

Filing 60

ORDER GRANTING 40 Motion to Dismiss for Failure to State a Claim. The claims against the Board, Christopher McGraw, Christopher Blake, Teri Miller, Jasmine Brown, Shanoya Cordew, Marina Spears, Victor Hall, and Morgan Middlebrooks are DISMISSED without prejudice, and they are hereby DISMISSED from this action. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 3/26/2024. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
SHANNON WALLER, JR.,
Plaintiff,
v.
BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF
GEORGIA, et al.,
Defendants.
__________________

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CIVIL ACTION NO. 5:23-cv-232 (MTT)

ORDER
Plaintiff Shannon Waller, Jr. claims he was improperly “removed” from the
respiratory therapy program at Middle Georgia State University (“MGSU”), a unit of the
University System of Georgia (“USG”). Doc. 37 ¶¶ 1, 54. Relevant here, Waller’s
second amended complaint asserts a breach of contract claim against the Board of
Regents of the University System of Georgia (the “Board”), 42 U.S.C. § 1983 procedural
due process claims against various Board employees and a MGSU student in their
individual capacities, and Rehabilitation Act (“RA”) and Americans with Disabilities Act
(“ADA”) claims against those individuals in their official capacities and the Board. 1 Id.
¶¶ 117-181. The Board defendants now move to dismiss Waller’s claims against them.
Doc. 40. For the reasons below, that motion (Doc. 40) is GRANTED.

The remaining defendants—Houston Healthcare System, Inc., Houston Hospitals, Inc., Tony Wann,
Nanyamka Salley, Cynthia Rogers, Patricia Burns, and Rodrigo Morales, M.D.—have not moved to
dismiss.

1

I. BACKGROUND
A. Factual Background
Waller’s factual allegations are hard to follow. The Court organizes those
allegations by the claims, as best the Court can tell, they are intended to support.
1. Allegations relevant to Waller’s breach of contract claim
On June 8, 2020, Waller received, signed, and returned his letter of acceptance
to MGSU. Docs. 37 ¶¶ 24-25; 37-2. Waller began MGSU’s respiratory therapy program
on August 12, 2020. Doc. 37 ¶ 26. On August 16, Waller signed the MGSU program
handbook certifying that he received a copy, that he read and understood it, and that he
agreed to adhere to its policies. Docs. 37 ¶ 27; 37-3. The program handbook requires
students to abide by MGSU’s policies, including the “Student Code of Conduct,” the
University “Student Handbook,” and other MGSU “policies and procedures.”2 Docs. 37
¶ 28; 37-4 at 6, 8. On November 1, 2021, Defendant Christopher Blake, as President of
MGSU, signed the Student Government Association (“SGA”) Constitution; SGA
involvement “requires signatories to ‘uphold the [MGSU] Student Handbook and Code
of Conduct.’” Docs. 37 ¶¶ 29-30; 37-5 at 2. Waller contends these documents formed a
contract with the Board “to abide by the policies and procedures of” MGSU. Doc. 37 ¶¶
119, 126-128.
Waller alleges the Board “breached its contract with [him] by failing to follow the
requirements of the Student Code of Conduct, the Academic Conduct Procedures,

2 The Student Code of Conduct mandates “strict procedural steps for complaints made against students.”
Doc. 37 ¶ 89. The Academic Conduct Procedures, for instance, require “specific information be reported
to the Office of Student Conduct … including the dates, times, locations, and nature of the alleged
conduct, among other details.” Id. ¶ 107. A copy of each is attached to Waller’s Complaint. Docs. 37-9;
37-10.

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MG[SU]’s Syllabus for RESP 4125 for Spring 2022, and other written policies of MG[SU]
and USG.” Id. ¶ 131. Waller does not expressly say in count one what procedures the
Board failed to follow, nor does he say in count one when the breach occurred. It is
evident, however, that the “breach” allegedly arose from a disciplinary proceeding,
which is discussed below.
2. Allegations relevant to Waller’s procedural due process claim
Here, Waller’s allegations are particularly confusing. In part, this is because the
allegations specifically pled are incomplete and often conflict with facts he incorporated
into his second amended complaint. 3 The Court recites first the facts Waller pleads and
then the relevant facts he incorporates.
i. Facts pled
To graduate Waller apparently had to complete “RESP 4125,” a course that
involved a clinical externship. Doc. 37 ¶¶ 42-43, 57-58, 81-82. Waller began his clinical
externship at facilities owned and operated by Houston Healthcare System, Inc. and
Houston Hospitals, Inc. (except when necessary to distinguish between the two, both
are hereafter referred to as “Houston Healthcare”). Id. ¶¶ 6, 55, 57. On April 21, 2022,
Waller says he “blew the whistle regarding [Houston Healthcare’s] failure to use the
appropriately sized cannula on a patient” who went into cardiac arrest, “caused, in part,

Waller moved for leave “to amend his [first] Amended Complaint with the new evidence and information
contained in [Waller]’s Response to Defendant USG’s [first] Motion to Dismiss (Doc. #18).” Doc. 27 at 4
(citing Doc. 26) (emphasis in original). That “new evidence” included an audio recording of Waller’s
disciplinary hearing which he had attached to and relied upon in his response to the defendants’ first
motion to dismiss. See Docs. 26; 26, Ex. 6. The Court granted Waller leave to amend. Doc. 35.
Although Waller’s second amended complaint references discussion at the hearing, he did not attach the
audio recording to his second amended complaint. See Doc. 37. The Board defendants again moved to
dismiss, and Waller’s response again relied on the audio recording. Docs. 40; 44. The Court overruled
the defendants’ objection to consideration of the recording and deemed the recording to be incorporated
into Waller’s second amended complaint. Doc. 57.
3

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by the inappropriately sized cannula.” Id. ¶¶ 44-46. On April 29, Defendant Teri Miller,
MGSU’s respiratory therapy program chair, emailed Waller and “suspended him
indefinitely from his clinical rotation.” Id. ¶¶ 7, 55. Then, on May 4, 2022, Houston
Healthcare “officially barred” Waller from its hospital(s). Id. ¶ 56.
On May 9 and May 10, 2022, Defendant Shanoya Cordew, the MGSU Student
Conduct Coordinator, sent Waller letters “regarding alleged violations of the [MGSU]
Student Code of Conduct” that allegedly occurred on April 22, 2022. Id. ¶¶ 9, 59-62.
Only the May 10 letter is attached to Waller’s second amended complaint. Doc. 37-6.
The alleged violations were:

Docs. 37 ¶¶ 59-62; 37-6 at 1.
The letter advised Waller of the possible sanctions—an “F” in RESP 4125 and
dismissal from the respiratory therapy program. Doc. 37-6 at 1. Cordew also emailed
Waller documents he requested constituting some of the evidence against him. Docs.
37 ¶ 60; 37-6 at 2. Waller requested a hearing which Cordew convened on June 1,
2022. Docs. 37 ¶ 64; 37-6 at 2; 37-8. Miller and Defendant Jasmine Brown, Waller’s
clinical externship professor, “served as the complainants.” Doc. 37 ¶¶ 8, 65.
Defendants Marina Spears, Victor Hall, and Morgan Middlebrooks served as members
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of the hearing panel. Id. ¶ 10. Waller alleges the complainants presented evidence of
events occurring before and after April 22, 2022, which was the only date listed in the
“charging documents.” Docs. 37 ¶¶ 69, 76-77; 37-6. Waller alleges that Charge 2
involved an incident that occurred on April 29, not April 22. Doc. 37 ¶ 76.
The panel found Waller responsible only for Charge 2: “actions and/or behaviors
that endanger health/safety.” Docs. 37 ¶ 72; 37-7 at 1. As punishment, the panel
determined Waller should ‘receive a grade of ‘F’ in RESP 4125.” Doc. 37 ¶ 81. Waller
alleges this “was tantamount to his complete removal from, and ineligibility to re-enter,
the respiratory therapy program.” Id. ¶ 82. Waller appealed the panel decision to
Cordew, who affirmed. Id. ¶¶ 83-84. Waller next appealed to MGSU President Blake,
who also affirmed. Id. ¶¶ 85-86. Waller then filed a discretionary appeal to Defendant
Christopher McGraw, the Board’s Vice Chancellor of Legal Affairs, and he too affirmed.
Id. ¶¶ 12, 87-88.
ii. Facts incorporated
The audio recording of the disciplinary hearing makes clear that the charges
against Waller were based on two incidents that occurred not on April 22 but on April
21, 2022 and April 29, 2022. Doc. 26, Ex. 6 at 23:50—24:15, 25:45—26:15, 37:58—
38:39. Charges 1 and 3 related to an incident that occurred on April 21; Charge 2
related to an April 29 incident. Id. at 35:49—36:58, 39:55—41:05, 47:32—48:19. The
audio recording explains the confusion over dates. Doc. 26, Ex. 6 at 47:32—48:19.
The Supervisor of Respiratory Care at Houston Healthcare, Tony Wann, apparently did
not learn of the April 21 incident until the next day, and he incorrectly reported to Miller
that the incident occurred on April 22. Docs. 26, Ex. 6 at 35:49—36:58, 36:20—36:58;

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37 ¶ 14. Because of the April 21 incident, Wann decided to remove Waller from the
hospital when Waller returned for his next shift. Doc. 26, Ex. 6 at 27:44—30:20. Wann
communicated this to Miller before learning that Waller had already been told not to
return to the hospital by a different supervisor because of the April 29 incident. Id. at
27:40—28:30, 29;01—30:21, 38:00—39:08, 39:55—40:30. As Waller noted, he did not
work on April 22. Id. at 22:13—23:25, 36:20—36:58. Houston Healthcare investigated
the incidents and, on May 4, 2022, officially barred Waller from its facilities because of
both the April 21 and April 29 incidents. Docs. 26, Ex. 6 at 22:09-11, 22:22—22:38,
27:00—34:00, 31:46—32:42, 33:20; 44 at 9-10.
Miller then initiated misconduct proceedings against Waller at MGSU citing the
same charges that the “hospital themselves listed as their primary concerns,” i.e., the
April 21 and 29 incidents. Doc. 26, Ex. 6 at 32:23—33:32. Prior to sending the May 10
letter, Cordew met with Waller to review the charges. Docs. 26, Ex. 6 at 13:39—14:35,
22:58—22:38; 37-6 at 1. Waller received copies of emails between Miller and Houston
Healthcare employees relating to both incidents and was informed that these
documents would be entered into evidence against him at the hearing. Doc. 26, Ex. 6
at 14:21—17:07. As noted, the hearing panel found Waller responsible for Charge 2,
which arose from the April 29 incident. Docs. 37 ¶ 72; 37-7 at 1; 37-8. According to the
attachments to Waller’s second amended complaint:
The hearing panel believed they had preponderance to find [Waller]
responsible for actions: that endanger health & safety as [Waller] signed the
MG[SU] respiratory handbook, acknowledging that [he] was to perform
procedures at his clinical site under the supervision of a practicing
Respiratory Therapist. [Waller] admitted that he did perform these
procedures at least one time on the dates in question and further explained
this during this testimony.

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Doc. 37-8 at 1; see also Doc. 37-7. Again, the panel determined Waller “should receive
a grade of ‘F’ in RESP 4125 as punishment,” which Waller alleges “was tantamount to
his complete removal from, and ineligibility to re-enter, the respiratory therapy program.”
Docs. 37 ¶¶ 81-82; 37-7 at 1.
3. Allegations relevant to Waller’s claims of disability discrimination
Waller’s allegations relating or possibly relating to his disability claims are
disjointed and in part incomprehensible. The Court does its best to summarize them.
In February 2021, one of Waller’s clinical instructors, Alexis Pope, informed Miller
that Waller “display[ed] a sort of nervous anxiety.” Doc. 37 ¶ 32. Waller has attention
deficit disorder (“ADD”), anxiety, and depression for which he takes medications and
sees a counselor. Id. ¶¶ 36-37. Miller, MGSU’s respiratory therapy program chair, and
Brown, Waller’s clinical externship professor, were aware that Waller allegedly had
these conditions, took medication, and saw a counselor. Id. ¶¶ 7-8, 36. In February
2022, Pope told Miller and Brown that Waller “made ‘some inappropriate statements
during his clinical rotations making staff uncomfortable.’” Id. ¶ 33. “Pope’s opinion of
[Waller] did not result in any academic or disciplinary infraction or record for [Waller].”
Id. ¶ 34.
From February to November 2021, Miller and Brown discussed their “feelings”
related to Waller’s “anxiety and depression, including [Waller]’s use of a counselor.” Id.
¶ 35. Miller and Brown also discussed these “feelings” with MGSU’s then Associate
Vice President for Student Affairs, Dr. Michael Stewart, and the Dean of MGSU’s
School of Health and Natural Sciences. Id. ¶ 37. Stewart requested certain
documentation from Waller about his disabilities, which Waller provided, and the

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defendants “documented zero academic or conduct infractions or consequences for
[Waller] as a result.” Id. ¶¶ 38-40. In fact, Waller “achieved a record of satisfactory
academic achievement and satisfactory student conduct until the alleged events of April
2022, which led to his removal from MG[SU].” Id. ¶ 41. As noted, Waller “blew the
whistle” on April 21, 2022, and Miller emailed Waller on April 29 “suspend[ing] him
indefinitely from his clinical rotation.” Id. ¶¶ 44, 55. This, of course, relates to the
incidents that led to the charges against Waller. Although this allegation is interspersed
with allegations that mention his disabilities, Waller does not allege discriminatory
animus was the cause of his suspension.
Waller’s clinical supervisors at Houston Healthcare were aware of Waller’s
conditions. Id. ¶ 47. Because of his clinical supervisors’ “opinions related to” these
conditions, Waller alleges they “perceived that [he] was unsatisfactory in his
performance”; perceptions that at some unstated time they shared with Miller and
Brown. Id. ¶¶ 48-49, 51. Waller follows those allegations with the allegation that certain
defendants communicated to others that Waller “endangered patients and failed to
follow rules.” Id. ¶ 50. However, Waller does not allege that this communication related
to a disability.
Waller then alleges that the “complaints of Defendants MORALES, WANN,
SALLEY, MILLER, BROWN, ROGERS, and BURNS led to [Waller] being removed from
HOUSTON HEALTHCARE and HOUSTON HOSPITALS, which led to [Waller] being
removed as a student at MG[SU].” Id. ¶ 54 (emphasis added). Waller does not identify
these “complaints,” nor does he explain how they led to his removal. In fact, Waller
does not allege that he was “removed” because of his disabilities or because of

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discriminatory animus. Nor does Waller allege that he requested or was denied an
accommodation. 4
Finally, in the bodies of counts three and four, Waller alleges that all “Defendants’
actions and omissions against [Waller] were taken solely on the basis of [Waller]’s
disabilities and impairments.” 5 Id. ¶¶ 156, 175. But Waller never gets around to
alleging what action any MGSU employee took, solely or otherwise, because of
“perceptions” based on Waller’s alleged disabilities. In those counts, Waller references
no specific facts.
B. Procedural History
On April 26, 2023, Waller filed this action in Fulton County Superior Court
alleging claims for breach of contract, procedural due process violations, tortious
interference, and discrimination under the RA and ADA. Docs. 1; 1-1. The defendants
removed the case to federal court. Doc. 1. Waller then amended his complaint as of
right to clarify the capacity in which the individual defendants were being sued and to
correct the spelling of a named defendant. Doc. 10. The Court granted Waller’s
request for leave to file a second amended complaint, and the Board and the individuals
associated with the Board have moved for the second time to dismiss Waller’s claims
against them. Docs. 35; 40.

While Waller argues in his brief, though he does not plead in his second amended complaint, that he
“requested accommodations, but those were not provided to him at the time he needed them most,”
Waller does not elaborate any further. Doc. 44 at 20 (citing Doc. 37 ¶ 31). Waller does allege that MGSU
acknowledged his disabilities and “rights to accommodations in his coursework and other aspects of his
student life.” Doc. 37 ¶ 31. This is an apparent reference to an attachment to a brief that concerns a
granted testing accommodation. See Doc. 26-9.
4

5

“Defendants” includes Houston Healthcare and Houston Hospitals. Doc. 37 ¶¶ 145-162, 163-181.

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II. STANDARD
The Federal Rules of Civil Procedure require generally that a pleading contain “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). In this case, the defendants move to dismiss Waller’s claims
based on sovereign immunity pursuant to Federal Rule of Civil Procedure 12(b)(1) and
for failure to state a claim for which relief can be granted pursuant to Federal Rule of
Civil Procedure 12(b)(6). 6 Doc. 40-1 at 6-20.
A. Fed. R. Civ. P. 12(b)(1)
A motion to dismiss for lack of jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1) generally takes one of two forms—a facial attack or a factual attack.
Garcia v. Copenhaver, Bell & Assocs. M.D.'s, 104 F.3d 1256, 1260-61 (11th Cir.1997).
The attack here is facial. 7 See Morrison v. Amway Corp., 323 F.3d 920, 924-25 n.5
(11th Cir. 2003). When presented with a facial attack, a court determines whether the
complaint has sufficiently alleged subject-matter jurisdiction. McMaster v. United
States, 177 F.3d 936, 940 (11th Cir. 1999) (“‘Facial attacks' on the complaint ‘require[ ]
The terms “Eleventh Amendment immunity” and “sovereign immunity” are often used interchangeably,
as the parties do here. See, e.g., Doc. 40-1 at 17. However, the two are distinct doctrines. See Hufford
v. Rodgers, 912 F.2d 1338, 1340 (11th Cir. 1990) (“The question of Eleventh Amendment immunity
apparently remains integrally confused with the related, but distinct, concept of state sovereign
immunity.”). The Eleventh Amendment generally provides a nonconsenting state with immunity from suit
brought by a private individual in federal court. U.S. Const. Amend. XI; Alden v. Maine, 527 U.S. 706,
712-30 (1999). Sovereign immunity, on the other hand, bars suit against a nonconsenting state, no
matter the forum. See Hufford, 912 F.2d at 1340-41. By voluntarily removing this case to federal court,
the Board waived its Eleventh Amendment immunity to being sued in a federal forum. Lapides v. Bd. of
Regents of the Univ. Sys. of Ga., 535 U.S. 613, 614 (2002). The Board did not, however, waive “any
defense it would have enjoyed in state court—including immunity from liability for particular claims.”
Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th Cir. 2013).
6

7 See Doc. 40-1 at 1 n.1 (“For purposes of this motion, fact allegations in the amended complaint are
accepted as true.”); see also McElmurray v. Consol. Gov't of Augusta-Richmond Cnty., 501 F.3d 1244,
1251 (11th Cir. 2007) (citing Williamson v. Tucker, 645 F.2d 413 (5th Cir. 1981)). The Eleventh Circuit
has adopted as binding precedent the decisions of the former Fifth Circuit rendered prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

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the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in his complaint are taken as true ....’”
(alteration in original)). Just like “a Rule 12(b)(6) motion to dismiss for failure to state a
claim, the court construes the complaint in the light most favorable to the plaintiff and
accepts all well-pled facts alleged by in the complaint as true.” Sinaltrainal v. Coca-Cola
Co., 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v.
Palestinian Auth., 566 U.S. 449, 456 (2012) (holding only a natural person is an
“individual” who can be held liable under the Torture Victim Protection Act).
B. Fed. R. Civ. P. 12(b)(6)
To avoid dismissal pursuant to Rule12(b)(6), a complaint must contain sufficient
factual matter to “‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible when “the court [can] draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “Factual
allegations that are merely consistent with a defendant’s liability fall short of being
facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012)
(internal quotation marks and citations omitted).
At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and
the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” FindWhat Inv’r Grp. v. FindWhat.com., 658 F.3d 1282, 1296 (11th Cir. 2011)
(quoting Garfield v. NDC Health Corp., 466 F.3d 1255, 1261 (11th Cir. 2006)). But
“conclusory allegations, unwarranted deductions of facts or legal conclusions
masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis,

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297 F.3d 1182, 1188 (11th Cir. 2002). The complaint must “give the defendant fair
notice of what the … claim is and the grounds upon which it rests.” Twombly, 550 U.S.
at 555. Where there are dispositive issues of law, a court may dismiss a claim
regardless of the alleged facts. Patel v. Specialized Loan Servicing, LLC, 904 F.3d
1314, 1321 (11th Cir. 2018).
In general, courts ruling on Rule 12(b)(6) motions to dismiss are confined to the
pleadings; if they wish to consider extrinsic evidentiary material, Rule 12(d) compels
them to convert the motion into a Rule 56 motion for summary judgment and to provide
the parties with a “reasonable opportunity” to present additional relevant material.
Courts may, however, consider certain “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice” in connection with a
Rule 12(b)(6) motion. Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322
(2007). “Where there is conflict between allegations in a pleading and exhibits thereto,
it is well settled that the exhibits control.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1206 (11th Cir. 2007) (quoting Simmons v. Peavy-Welsh Lumber Co., 113 F.2d 812,
813 (5th Cir. 1940)).
III. DISCUSSION
A. Breach of Contract
Waller, in count one of his second amended complaint, alleges that the Board is
liable for breach of contract because it failed to follow certain requirements in the RESP
4125 syllabus, the Student Code of Conduct, the Academic Conduct Procedures, “and
other written policies of MG[SU].” Doc. 37 ¶¶ 117-132. The Board moves to dismiss,

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arguing Waller’s breach of contract claim is barred by sovereign immunity. Doc. 40-1 at
6.
The Board, as a Georgia state agency, enjoys sovereign immunity. See
O.C.G.A. § 20-3-36 (sovereign immunity applies to the Board of Regents); Bd. of
Regents of Univ. Sys. of Ga. v. Barnes, 322 Ga. App. 47, 49, 743 S.E.2d 609, 611
(2013). 8 However, Georgia has waived its sovereign immunity “as to any action ex
contractu for the breach of any written contract.” GA. CONST., art. I, § II, ¶ IX(c). Waller
bears the burden of plausibly alleging the existence of a written contract sufficient to
waive sovereign immunity. See Ga. Dep’t of Lab. v. RTT Assocs., 299 Ga. 78, 81, 786
S.E.2d 840, 843 (2016) (“The burden of demonstrating a waiver of sovereign immunity
rests upon the party asserting it.”). Waller must point to a written document or
contemporaneous writings signed by both parties “demonstrat[ing] their intent to enter
into a binding contract” and which state “all of the necessary terms of a contract.”
Patrick v. Bd. of Regents of Univ. Sys. of Ga., 358 Ga. App. 546, 548, 855 S.E.2d 746,
749 (2021) (citation omitted). Because any waiver of sovereign immunity must be
strictly construed, ordinary principles of contract law establishing an implied contract are
insufficient. Id. at 546, 548, 855 S.E.2d at 749 (holding that admission letter referring to
university handbooks and department regulations did not establish intent to create
contract between student and State such that sovereign immunity was waived by written
contract).
Waller relies on three documents, which he attaches to his second amended
complaint, to establish a written contract with the Board: his acceptance letter, which he
Disapproved of on other grounds by Wolfe v. Bd. of Regents of the Univ. Sys. of Ga., 300 Ga. 223, 794
S.E.2d 85 (2016) (involving the availability of direct appeal for adjudicatory administrative decisions).
8

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signed and returned in June 2020; a copy of the MGSU program handbook which he
signed two months later; and the SGA Constitution, which MGSU President Blake
signed in November 2021. Docs. 37 ¶¶ 24-25, 27, 29-30, 117, 119-122, 131; 37-2; 373; 37-4 at 6, 8; 37-5. Waller argues these three documents constitute a written contract
because each references the Student Code of Conduct and Academic Conduct
Procedures. See Doc. 44 at 4 (contending the “policies and procedures in these signed
writings clearly identify” the MGSU “Student Code of Conduct” and “Academic Conduct
Procedures”). Cobbling together these documents is clearly insufficient to establish a
written contract waiving the Board’s sovereign immunity.
First, these documents are not contemporaneous writings signed by both parties.
See Laun v. Bd. of Regents of Univ. Sys. of Ga., 2019 WL 4694940, at *19 (S.D. Ga.
Sept. 25, 2019) (requiring at least one writing signed by both parties). Writings are
contemporaneous when they are “executed at the same time and in the course of the
same transaction.” Dabbs v. Key Equip. Fin., Inc., 303 Ga. App. 570, 574, 694 S.E.2d
161, 165 (2010) (citation omitted). “One thing is contemporaneous with a given
transaction when it is so related in point of time as reasonably to be said to be a part of
such transaction.” Laun, 2019 WL 4694940, at *19 (quoting Dabbs, Inc., 303 Ga. App.
at 574, 694 S.E.2d at 165). MGSU President Blake signed the SGA Constitution more
than a year after Waller signed his acceptance letter and program handbook. See Bd.
of Regents of Univ. Sys. of Ga. v. Winter, 331 Ga. App. 528, 533, 771 S.E.2d 201, 206
(2015) (“a nine-week interval between the execution of documents strongly suggests
that those documents are not contemporaneous”); 9 Newell Recycling of Atlanta v.
Overruled on other grounds by Rivera v. Washington, 298 Ga. 770, 773, 784 S.E.2d 775, 778 n.7 (2016)
(involving application of collateral order doctrine).

9

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Jordan Jones & Goulding, Inc., 317 Ga. App. 464, 466-67, 731 S.E.2d 361, 364 (2012)
(holding documents dated three months apart are not contemporaneous). Second,
even if “both parties … manifested their intent to be bound by [MGSU’s] written policies
and procedures,” the exchange of “mutually interdependent promises” does not waive
sovereign immunity absent a signed writing containing all the essential terms of a
contract. Doc. 44 at 5.
Nevertheless, Waller, citing Bd. of Regents of the Univ. Sys. of Ga. v. Doe, 278
Ga. App. 878, 879, 881-82, 630 S.E.2d 85, 89 (2006), argues that these disparate
documents form a contract sufficient to waive sovereign immunity. Doc. 44 at 5-6.
There, Georgia Tech sent Doe a written offer of employment containing all the
necessary terms of an employment contract including a specific salary, benefits, and
start date. Doe, 278 Ga. App. at 881, 630 S.E.2d at 89. Georgia Tech’s offer requested
a “formal letter of acceptance,” and Doe accepted the offer in writing within 24 days. Id.
at 879, 630 S.E.2d at 87. Not surprisingly, the court found a valid written contract
because the parties “clearly manifested their intent to be bound by their agreement.” Id.
at 881, 630 S.E.2d at 89. Those facts bear no resemblance to the facts here—those
parties exchanged signed contemporaneous writings; their writings contained all
necessary terms; and the parties’ conduct clearly manifested their intent to bind
themselves to their written agreement. In short, Doe, if anything, scuttles Waller’s
argument.
Waller does not expressly argue that his allegations plausibly allege an implied
contract with the Board. But in effect that is his argument—even in the absence of a
signed contemporaneous writing containing all necessary terms, the parties’ course of

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conduct, he argues, shows the parties somehow intended to bind themselves. Doc. 44
at 5-6. That, courts have consistently held, is insufficient to waive sovereign immunity. 10
The Board’s motion to dismiss Waller’s breach of contract claim is GRANTED.
B. Procedural Due Process
In count two of his second amended complaint, Waller alleges a Fourteenth
Amendment procedural due process claim against various Board employees and a
MGSU student in their individual capacities. Doc. 37 ¶¶ 133-144. The defendants
contend qualified immunity bars Waller’s claims. Doc. 40-1 at 15-16.
“Qualified immunity offers complete protection for individual public officials
performing discretionary functions ‘insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.’” Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir. 2012) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). “Once discretionary authority is established, the
burden then shifts to the plaintiff to show that qualified immunity should not apply.”
Edwards v. Shanley, 666 F.3d 1289, 1294 (11th Cir. 2012) (quoting Lewis v. City of W.
Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009)). To meet this burden, a plaintiff
must establish that “the officer’s conduct amounted to a constitutional violation” and “the

10 See Justice v. Ga. Dep't of Pub. Safety, 368 Ga. App. 593, 601-02, 890 S.E.2d 486, 493 (2023)
(Gobeil, J., concurring specially) (collecting cases). See, e.g., Patrick, 358 Ga. App. at 548-49, 855
S.E.2d at 749 (holding graduate handbook, student handbook, and offer letter did not demonstrate intent
for handbook to become a binding contract); Barnes, 322 Ga. App. at 50, 743 S.E.2d at 611-12 (holding
unsigned and unauthenticated student code of conduct and counseling center consent form signed only
by student did not constitute a written contract waiving sovereign immunity); Bd. of Regents of Univ. Sys.
of Ga. v. Ruff, 315 Ga. App. 452, 456, 726 S.E.2d 451, 454-55 (2012) (holding application to study
abroad program, written refund policy, and study abroad manual did not waive sovereign immunity
because they were not signed by the Board), overruled on other grounds by Rivera, 298 Ga. at 778 n.7,
784 S.E.2d at 775; Wilson v. Bd. of Regents of Univ. Sys. of Ga., 262 Ga. 413, 414, 419 S.E.2d 916, 91718 (1992) (holding signed consent form and ambulatory surgery patient agreement did not constitute a
written contract).

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right violated was ‘clearly established’ at the time of the violation.” Lewis, 561 F.3d at
1291. This two-step analysis may be done in whatever order is deemed most
appropriate for the case, yet “it is ‘often beneficial’ to analyze them sequentially.” King
v. Pridmore, 961 F.3d 1135, 1142 (11th Cir. 2020) (quoting Plumhoff v. Rickard, 572
U.S. 765, 774 (2014)); Pearson v. Callahan, 555 U.S. 223, 236 (2009).
1. Discretionary authority
“To establish that the challenged actions were within the scope of [their]
discretionary authority, [the] defendant[s] must show that those actions were (1)
undertaken pursuant to the performance of [their] duties, and (2) within the scope of
[their] authority.” Est. of Cummings v. Davenport, 906 F.3d 934, 940 (11th Cir. 2018)
(quoting Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998)). Each prong
requires courts to “look to the general nature of the defendant’s action, temporarily
putting aside the fact that” the conduct may have been committed for an unlawful
purpose or in an unlawful way. Mikko v. City of Atlanta, 857 F.3d 1136, 1144 (11th Cir.
2017) (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir.
2004)).
It is not clear if Waller disputes that the defendants were acting within their
discretionary authority. He states in conclusory fashion that “[t]he [d]efendants did not
have discretionary authority to violate the clearly established due process requirements
of the Constitution and [MGSU] policies and procedures.” Doc. 44 at 14. Waller then
proceeds to address only whether the defendants violated a clearly established right.
Id. at 14-16. To the extent Waller does dispute that the defendants acted within their
discretion, this “argument” fails. The question is not whether it was within defendants’

-17-

authority to commit an allegedly unauthorized act. Mikko, 857 F.3d at 1144. This
framing of the inquiry conflates the distinct “question of whether the defendants acted
lawfully with the question of whether they acted within the scope of their discretion.”
Sims v. Metro. Dade Cnty., 972 F.2d 1230, 1236 (11th Cir. 1992) (“The issues are
distinct.”). Defendants need only demonstrate “objective circumstances which would
compel the conclusion that [their] actions were undertaken pursuant to the performance
of [their] duties and within the scope of [their] authority.” Rich v. Dollar, 841 F.2d 1558,
1564 (11th Cir. 1988) (citation omitted). It is exceedingly rare for an official to be acting
outside the scope of their discretionary authority and thus be precluded from claiming
qualified immunity as a matter of law. See, e.g., Est. of Cummings, 906 F.3d at 940.
Waller does not argue this case is unusual; nor could he.
The Academic Conduct Procedures attached to Waller’s second amended
complaint clearly vests each defendant with discretion to perform particular tasks. Doc.
37-10. Miller and Brown had discretion over whether to report suspected violations of
the Student Code of Conduct and, if reported, to determine, in conjunction with the
Office of Student Conduct, whether the alleged violation should be pursued and the
appropriate means for addressing or adjudicating the alleged violation. Id. at 1.
Cordew had discretion to conduct the hearing. Id. at 1-2, 4. As panelists, Spears, Hall,
and Middlebrooks had discretion to weigh the evidence and to “deliberate and reach a
decision regarding [Waller’s] responsibility.” Id. at 2. If found responsible, the panelists
had discretion to “determine an appropriate sanction.” Id. On appeal, Cordew, Blake,
and McGraw had discretion to review the record and to determine the merits of the
appeal. Id. at 3-4. McGraw specifically had discretion over whether to even take

-18-

Waller’s appeal. Id. at 4. Thus, the second amended complaint makes clear that the
defendants were acting within their discretionary authority. Waller’s “argument” to the
contrary addresses the core qualified immunity analysis—whether the defendants’
“conduct amounted to a constitutional violation” and “whether the right violated was
‘clearly established’ at the time of the violation.” Lewis, 561 F.3d at 1291.
Accordingly, the defendants are entitled to raise the shield of qualified immunity.
2. Has Waller plausibly alleged his constitutional rights were violated?
To state a procedural due process claim, a plaintiff must plead facts showing: “(1)
a deprivation of a constitutionally-protected liberty or property interest; (2) state action;
and (3) constitutionally-inadequate process.” Grayden v. Rhodes, 345 F.3d 1225, 1232
(11th Cir. 2003); see also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541
(1985); Barnes v. Zaccari, 669 F.3d 1295 (11th Cir. 2012). Only the third element is at
issue. Doc. 40-1 at 12.
Waller’s brief sums up his due process allegations this way: “Plaintiff’s failure to
receive notice of any charges which occurred outside April 22, 2022, was a fundamental
deprivation of his rights of notice, and an opportunity to be heard.” Doc. 44 at 14. But
the facts Waller alleges demonstrate just the opposite. As discussed in detail above,
Waller knew the incidents at issue occurred on April 21 and April 29. See supra pp. 5-6.
In fact, Waller does not even allege in his second amended complaint that he did not
receive notice of charges “outside April 22, 2022.” Doc. 44 at 14. Rather, Waller simply
alleges that the date in the May 10 letter was a “defect” in the notice. Doc. 37 ¶¶ 78, 80.
Waller’s hyper-technical argument that a defect in the May 10 letter somehow violated
his due process rights fails for many reasons.

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Even if the April 22 date initially confused Waller—he does not allege that it did,
presumably because he did not work that day—Waller fails to allege how the April 22
mistake had any effect on his ability to respond to the accusations against him. See
Jenkins v. La. State Bd. of Educ., 506 F.2d 992, 1000 (5th Cir. 1975) (“Although here
the notice given to appellants could undoubtedly have been drafted with more precision,
the charges … clearly set[] forth the type of conduct” in question). The May 10 letter
stated the facts upon which the charges were based. Docs. 37 ¶¶ 59-61; 37-6 at 1. For
example, the letter informed Waller that Charge 2 was based on accusations that he
made changes to ventilators without notifying a therapist; placed a patient on “BiPAP”
without supervision; and performed an “ABG” improperly. Doc. 37-6 at 1. Waller
correctly alleges in his second amended complaint that this incident occurred on April
29, not April 22 as stated in the May 10 letter. Doc. 37 ¶ 76. Moreover, Waller then met
with Cordew before the hearing to review the charges, and he received evidence he
requested in advance of the hearing. Docs. 26, Ex. 6 at 13:39—14:37, 22:58—22:38;
37 ¶ 60. Waller also received copies of emails between Miller and Houston Healthcare
employees related to Houston Healthcare’s investigation of the April 21 and April 29
incidents, and Waller was informed that these documents would be used as evidence
against him at the hearing. Doc. 26, Ex. 6 at 14:21—17:07. Finally, the audio recording
of the hearing establishes that the mistake in the May 10 letter was recognized and that
Waller presented his defense to the charges arising from the April 21 and April 29
incidents. See Docs. 26, Ex. 6; 37-7; 37-8. In short, Waller’s argument that the defect
in the May 10 letter “was a fundamental deprivation of his rights of notice, and []

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opportunity to be heard” is flatly contradicted by his pleadings. See Docs. 26, Ex. 6; 37;
44 at 14.
Indeed, his allegations establish that he enjoyed far more than the minimally
required due process. In the school disciplinary setting, due process requires only that
colleges give students notice and a hearing before suspending or expelling them. 11 See
Nash v. Auburn Univ., 812 F.2d 655, 660-61 (11th Cir. 1987); Dixon v. Ala. State Bd. of
Educ., 294 F.2d 150, 158 (5th Cir. 1961) (“[D]ue process requires notice and some
opportunity for hearing before a student at a tax-supported college is expelled for
misconduct.”). Nevertheless, Waller, quoting Dixon v. Alabama, argues public colleges
and universities “should . . . comply with the following standards”:
The notice should contain a statement of the specific charges and grounds
which, if proven, would justify expulsion …. [This] requires something more
than an informal interview with an administrative authority of the college. By
its nature, a charge of misconduct [is] easily colored by the point of view of
the witnesses. [A] hearing which gives … an opportunity to hear both sides
in considerable detail is best suited to protect the rights of all involved …
[T]he student should be given the names of the witnesses against him and
an oral or written report on the facts to which each witness testifies. He
should also be given the opportunity to present … his own defense against
the charges and to produce either oral testimony or written affidavits of
witnesses in his behalf.
Doc. 44 at 7 (alteration in original) (quoting Dixon, 294 F.2d at 158-59).
That process is what Waller got. 12 He was given notice of the specific portions
of the student code of conduct which he was charged with violating and the factual
Waller suggests MGSU failed to adhere to its policies, but he never identifies any university
requirements that he alleges were not followed. Even if MGSU failed to follow its own procedures,
however, the relevant constitutional question is “whether the process that [Waller] actually received
comported with the requirements of the Due Process Clause.” Taylor v. Bd. of Regents of Univ. Sys. of
Ga., 2022 WL 4857906, at *8 (N.D. Ga. Oct. 3, 2022) (citing Garrett v. Mathews, 625 F.2d 658, 660 (5th
Cir. 1980)).
11

It should not be inferred that the above quote from Dixon states constitutionally required procedures.
See Dixon, 294 F.2d at 154 (“[T]he question for decision does not concern the sufficiency of the notice or
12

-21-

bases for the charges. Docs. 37 ¶ 59-62; 37 ¶ 64; 37-6 at 1. Waller was given an
opportunity to respond to those accusations at a hearing, and that hearing was held
within a reasonable time after he received notice of the charges. Docs. 26, Ex. 6 at
12:55—13:18; 37 ¶ 64; 37-6 at 1. At the hearing, Waller was allowed to confront the
evidence against him, call witnesses, speak on his own behalf, and present his own
evidence. Docs. 26, Ex. 6 at 6:58—7:12, 12:55—13:18; 37-6 at 1-2; 37-8 at 1. Waller
was thereafter able to appeal the panel decision to various school officials and the
University Board of Regents. Docs. 37 ¶¶ 83-88; 37-7. Waller was not otherwise
entitled to witness lists or copies of expected testimony because he personally attended
the hearing and heard the evidence against him. 13 See Nash, 812 F.2d at 662-63.
“The fundamental requirement of due process is [simply] the opportunity to be
heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (internal quotation omitted). Nothing in the second amended
complaint suggests that Waller did not receive notice and a full and fair opportunity to
present his case and be heard. Nash, 812 F.2d at 666. Thus, Waller fails to allege
facts sufficient to plausibly state a procedural due process claim.
3. Was the law “clearly established”?

the adequacy of the hearing, but is whether the students had a right to any notice or hearing whatever
before being expelled.”). Due process is a flexible standard that varies “according to an ‘appropriate
accommodation of the competing interests involved.’” Nash, 812 F.2d at 660 (quoting Goss v. Lopez, 419
U.S. 565, 579 (1975)). The Dixon quote is helpful here, however, because it is a fair summary of the due
process Waller received.
Cf. Nash, 812 F.2d at 660-61 (“The due process clause is not a ‘shield ... from suspensions properly
imposed,’ nor does it ensure that the academic disciplinary process is a ‘totally accurate, unerring
process’; it merely guards against the risk of unfair suspension ‘if that may be done without prohibitive
cost or interference with the educational process.’” (quoting Goss, 419 U.S. at 579-80)).

13

-22-

Even if Waller plausibly alleged a procedural due process violation, he has failed
to demonstrate that the Board defendants’ conduct violated clearly established law. 14
Waller cites a single case to show a clearly established right—Barnes v. Zaccari. Doc.
44 at 15. In Barnes, the Eleventh Circuit stated that “no tenet of constitutional law is
more clearly established than the rule that a property interest in continued enrollment in
a state school is an important entitlement protected by the Due Process Clause of the
Fourteenth Amendment.” 669 F.3d at 1305. Waller apparently believes that this
general principle is enough. He is wrong. He must show that the facts are so similar
that they put defendants on notice that their conduct crosses a constitutional line. All
that needs to be said about Barnes is that the plaintiff there did not receive any predeprivation process before his expulsion. Id. at 1301, 1305 (explaining university
president did not provide plaintiff with “prior notice of his decision or a hearing to oppose
it”). Clearly, those facts are not at all similar to the facts here.
Parenthetically, Waller notes Dixon v. Alabama. Doc. 44 at 15. As explained
above, the only thing that Dixon clearly establishes is that Waller’s due process rights
were not violated.
In sum, the defendants are entitled to qualified immunity because Waller fails to
allege facts sufficient to plausibly state a due process claim. Even if he had, he has not

A right becomes “clearly established” in three ways. Mercado v. City of Orlando, 407 F.3d 1152, 1159
(11th Cir. 2005). “First, [Waller] can show that a materially similar case has already been decided,”
consisting of binding precedent by the United States Supreme Court, the Eleventh Circuit, or the Georgia
Supreme Court. Id. Second, Waller can “show that a broader, clearly established principle should control
the novel facts” of the particular case—that is, the unconstitutionality of the instant conduct must be
apparent by looking to the guiding principles of the previous case, irrespective of the underlying factual
situation. Id. Third, Waller can show that the conduct is so egregiously unconstitutional that prior case
law is unnecessary. Id. The second and third methods are rarely successful. “[I]f a plaintiff cannot show
that the law at issue was clearly established under the first (materially similar case on point) method, that
usually means qualified immunity is appropriate.” King, 961 F.3d at 1146 (citing Corbitt v. Vickers, 929
F.3d 1304, 1312 (11th Cir. 2019)).
14

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demonstrated that the defendants violated a clearly established right. The defendants’
motion to dismiss Waller’s procedural due process claims is GRANTED.
C. Rehabilitation Act and Americans with Disabilities Act
In counts three and four of his second amended complaint, Waller alleges
disability discrimination against all Board defendants in violation of the RA and the ADA.
Doc. 37 ¶¶ 145-162, 163-181. The Court considers counts three and four together. 15
The counts, which are virtually identical, allege all defendants’ “actions and omissions”
against Waller “were taken solely on the basis of [his] disabilities and impairments.” Id.
¶¶ 156, 175 (emphasis added). Neither Count alleges specific facts identifying specific
defendants who took specific acts to intentionally discriminate against Waller. The
Board defendants move to dismiss arguing Waller fails to state a claim under both the
RA and ADA. 16 Doc. 40-1 at 16-20.

15 The RA and ADA are virtually identical, and the analyses are often the same. See Silberman v. Miami
Dade Transit, 927 F.3d 1123, 1133-34 (11th Cir. 2019) (explaining cases decided under the RA are
precedent for cases under the ADA, and vice-versa because they are virtually identical). Unlike the RA,
however, the ADA does not require that the discrimination be solely because of an individual's disability.
Compare 29 U.S.C. § 794(a) with 42 U.S.C. § 12132. Any difference between the statutes is not relevant
here.

The Board defendants dispute Waller’s allegation that “Title II of the ADA is a valid abrogation of
sovereign immunity as applied to discrimination claims against public universities.” Docs. 37 ¶ 165; 40-1
at 17. They argue Eleventh Amendment immunity is abrogated “only when the challenged conduct
amounts to an independent constitutional violation.” Doc. 40-1 at 17. There are many things wrong with
that argument, but it is only necessary to say that the Eleventh Circuit has already determined that Title II
is a valid abrogation of sovereign immunity as applied to students’ disability discrimination claims against
public universities. See Nat'l Ass'n of the Deaf v. Fla., 980 F.3d 763 (11th Cir. 2020) (en banc); Ass'n for
Disabled Americans, Inc. v. Fla. Int'l Univ., 405 F.3d 954 (11th Cir. 2005); R.W. v. Bd. of Regents of the
Univ. Sys. of Ga., 114 F. Supp. 3d 1260, 1282 (N.D. Ga. 2015).
16

The Board also argues that Waller’s official capacity claims should be dismissed as redundant. Docs. 401 at 17; 45 at 8. Waller argues that he can seek injunctive relief and that his official capacity claims are
not redundant. Doc. 44 at 17-21. Because Waller has not stated a claim for ADA or RA relief, it is not
necessary to resolve that issue.

-24-

To state a claim under either Title II of the ADA or Section 504 of the RA, a
plaintiff must generally establish “(1) that he is a qualified individual with a disability; (2)
that he was either excluded from participation in or denied the benefits of a public
entity's services, programs, or activities, or was otherwise discriminated against by the
public entity; and (3) that the exclusion, denial of benefit, or discrimination was by
reason of the plaintiff's disability.” Silberman v. Miami Dade Transit, 927 F.3d 1123,
1134 (11th Cir. 2019) (quoting Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th
Cir. 2007)). The defendants argue that Waller’s RA and ADA claims fail under the third
prong. Doc. 40-1 at 18. The Court agrees.
It is unclear what adverse action MGSU allegedly took solely or otherwise
because of Waller’s disabilities. Waller does not allege that he was “removed” because
of his disabilities. Nor does Waller allege that he requested or was denied an
accommodation. 17 Although Waller alleges that the “defendants” were aware of his
conditions, had “opinions” about them, and “perceived that [he] was unable to perform”
because of their opinions, there are no allegations specifically connecting the
defendants’ alleged awareness or opinions to any specific action. Doc. 37 ¶¶ 36, 47,
51, 53. Instead, Waller asserts that some unspecified “complaints” by unspecified
persons in some unspecified way led to his removal from Houston Healthcare which
then somehow led to his removal from MGSU. 18 Docs. 37 ¶ 54; 44 at 18. This

See Booth v. City of Roswell, 754 F. App'x 834, 837-38 (11th Cir. 2018) (“Because [plaintiff] did not
allege any facts to support his allegation that he was “terminated because he was an undesirable
employee because of his disability,” his discrimination claim was properly dismissed because plaintiff
failed to allege his disability “had anything to do with any of the incidents for which he was disciplined.”).

17

18 Waller may have intended these unspecified complaints to refer to the various communications,
opinions, and perceptions of some defendants concerning Waller’s alleged disabilities. See Doc. 37 ¶¶
49-54. If this was Waller’s intention, then the second amended complaint is at best a shotgun complaint
because the Court cannot figure out what Waller is alleging. “A shotgun pleading is a complaint that

-25-

conclusory allegation is not enough to plausibly state a claim for relief under the RA or
ADA.
This is particularly true when Waller affirmatively alleges that his removal was a
consequence of the hearing panel’s findings, none of whose members, as far as the
second amended complaint alleges, knew anything about Waller’s alleged disabilities. 19
Doc. 37 ¶¶ 81-82. Indeed, Waller seems to go out of his way to clear MGSU of any
discriminatory animus. See id. ¶¶ 34, 37-40 (“Defendants documented zero academic
or conduct infractions or consequences for Plaintiff as a result of the foregoing facts
from February through November 2021.”); id. ¶ 41 (“Plaintiff achieved a record of
satisfactory academic achievement and satisfactory student conduct until the alleged
events of April 2022.”). And while Waller’s arguments in his brief are not allegations
that can cure deficiencies in his second amend complaint, even they are telling. For
instance, Waller argues, but does not plead, that “Alexis Pope made statements related

violates either Federal Rule of Civil Procedure 8(a)(2) or Rule 10(b), or both.” Barmapov v. Amuial, 986
F.3d 1321, 1324 (11th Cir. 2021); Weiland v. Palm Beach Cnty. Sheriff's Off., 792 F.3d 1313, 1320 (11th
Cir. 2015). The Eleventh Circuit has recognized four types of shotgun pleadings: (1) “a complaint
containing multiple counts where each count adopts the allegations of all preceding counts, causing each
successive count to carry all that came before and the last count to be a combination of the entire
complaint”; (2) “a complaint that is ‘replete with conclusory, vague, and immaterial facts not obviously
connected to any particular cause of action’”; (3) “a complaint that does not separate ‘each cause of
action or claim for relief’ into a different count”; and (4) “a complaint that ‘assert[s] multiple claims against
multiple defendants without specifying which of the defendants are responsible for which acts or
omissions, or which of the defendants the claim is brought against.’” Barmapov, 986 F.3d at 1324-25
(alteration in original) (quoting Weiland, 792 F.3d at 1321-23). What all shotgun complaints have in
common “is that they fail to one degree or another, and in one way or another, to give the defendants
adequate notice of the claims against them and the grounds upon which each claim rests.” Weiland, 792
F.3d at 1323. Waller’s second amended complaint does just that; it fails to put each defendant on notice
of his or her actions which are the basis for Waller’s claim against them. In short, there is no way to read
the second amended complaint to plausibly allege Waller was removed from MGSU because of the
discriminatory animus of any defendant.
19 The Court is not suggesting that Waller cannot allege alternative theories of liability. Rather, the Court
simply observes that Waller says specifically that his “removal” was a consequence of the alleged
deprivation of his due process rights, but he never gets around to alleging how his disabilities or
discriminatory animus was a cause, sole or otherwise, of his removal.

-26-

to [Waller]’s disabilities which were used to eventually kick him out of school.” Doc. 44
at 20. But Waller pled just the opposite—“Pope’s opinion of [Waller] did not result in
any academic or disciplinary infraction or record for [Waller].” Doc. 37 ¶ 34.
For these reasons, the motion to dismiss Waller’s claims of disability
discrimination under the RA and ADA is GRANTED.
IV. CONCLUSION
For the foregoing reasons, the Board defendants’ motion to dismiss (Doc. 40) is
GRANTED. The claims against the Board, Christopher McGraw, Christopher Blake,
Teri Miller, Jasmine Brown, Shanoya Cordew, Marina Spears, Victor Hall, and Morgan
Middlebrooks are DISMISSED without prejudice, and they are hereby DISMISSED from
this action.
SO ORDERED, this 26th day of March, 2024.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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