SMITH v. UTAH VALLEY UNIVERSITY et al

Filing 32

ORDER granting 27 Motion to Dismiss and the Amended complaint is DISMISSED with prejudice. Final judgment will issue under separate order. Signed by Judge Tanya Walton Pratt on 3/20/2015 (dist made) (CBU)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
SEAN SMITH,
Plaintiff,
v.
UTAH VALLEY UNIVERSITY,
GREG SCHWAB, RYAN TANNER,
and DANIEL MCDONALD,
Defendants.

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Case No. 1:13-cv-01650-TWP-MJD

ORDER ON DEFENDANTS’ SECOND MOTION TO DISMISS
This matter is before the Court on a Second Motion to Dismiss filed pursuant to Federal
Rule of Civil Procedure 12(b)(6) by Defendants Utah Valley University (“UVU”); Greg Schwab
(“Mr. Schwab”), UVU Chair of the Aviation Department; Ryan Tanner (“Mr. Tanner”), Director
of Academic Support–Aviation Department and Daniel McDonald (“Mr. McDonald”), Chairman
of the Academic Standards Committee (collectively “the Defendants”) (Filing No. 27). Plaintiff
Sean Smith (“Mr. Smith”) was an online student at UVU during the Fall 2012, Spring 2013, and
Summer 2013 terms. After receiving undeserved low grades and being dissatisfied with the
administrative appeals process, Mr. Smith, pro se, filed this diversity action alleging breach of
contract, Fourteenth Amendment Due Process violations, and discrimination, and he requested
punitive damages. Defendants move to dismiss the Amended Complaint, which was filed in
response to the Court’s dismissal of claims in Mr. Smith’s original complaint, without prejudice
and with leave to re-file. For the following reasons, the Defendants’ Second Motion to Dismiss is
GRANTED.

I.

LEGAL STANDARD

When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the
Court accepts as true all factual allegations in the complaint and draws all inferences in favor of
the plaintiff. Bielanski v. County of Kane, 550 F.3d 632, 633 (7th Cir. 2008). However, the
allegations must “give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests,” and the “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and
quotation marks omitted). Stated differently, the complaint must include “enough facts to state a
claim to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir.
2009) (internal citation and quotation marks omitted). To be facially plausible, the complaint must
allow “the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
Additionally, “[a] document filed pro se is to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
II.

BACKGROUND

UVU is a state university located in Orem, Utah (Filing No. 25 at 1).UVU accepts Title IV
funds as authorized by the Higher Education Act. Mr. Smith, a resident of Madison County,
Indiana, enrolled in online classes in UVU’s aviation department during the Fall 2012, Spring
2013, and Summer 2013 terms. When he first enrolled, Mr. Smith selected Mixed race Native
American during his application process. During the course of his study, Mr. Smith noticed a large
number of incorrect answers in UVU’s test banks in two of his classes: AVSC-3090 and AVSC3010. Mr. Smith began recording these errors and communicating his findings via email, to the

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course instructors. The course instructors did not respond to Mr. Smith’s emails. Because of the
lack of response, on June 11, 2013, Mr. Smith appealed his course grades to Mr. Schwab, the chair
of the aviation department. Mr. Schwab denied Mr. Smith’s appeal. On June 21, 2013, Mr. Smith
appealed Mr. Schwab’s ruling to the UVU Academic Standards Committee, but the Registrar did
not process Mr. Smith’s appeal. When Mr. Smith submitted his appeal directly to Mr. McDonald,
the chair of the Academic Standards Committee, Mr. McDonald refused to forward the appeal to
the rest of the Academic Standards Committee.
Mr. Smith also took issue with the grades he received in courses AVSC-3030 and AVSC410G. The final grade Mr. Smith received in AVSC-3030 was lower than he anticipated. Mr. Smith
appealed the grade to Mr. Tanner, the Direct of Academic Support for the Aviation Department.
With Mr. Tanner’s assistance, Mr. Smith was able to convince the course instructor that the grade
had been improperly computed, and Mr. Smith’s grade for AVSC-3030 was raised accordingly.
Mr. Smith also was surprised by his low grade in AVSC-410G. After contacting Mr.
Tanner and being directed to the course instructor, Mr. Smith learned that he had received a zero
on his final paper. According to the course instructor, the score was the result of Mr. Smith’s failure
to comply with the requirements for the final assignment. Mr. Smith provided the instructor and
Mr. Tanner with PDF metadata and a submission receipt which, he alleges, showed that he timely
submitted a paper that complied with all the requirements. The instructor refused to re-grade Mr.
Smith’s paper, and Mr. Smith appealed to Mr. Schwab. Mr. Schwab denied Mr. Smith’s appeal,
telling him, “I am confident you were provided ample opportunity to accept a passing grade from
the instructor had you agreed to his offerings or resubmitted the correct paper. Your continued
steadfast refusal to cooperate with the faculty member is the only reason you were not able to
experience a good outcome in this course.” (Filing No. 25 at 8.) Mr. Smith appealed Mr. Schwab’s

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decision to the Academic Standards Committee. Mr. McDonald informed Mr. Smith that the
Committee had denied his appeal, but after talking to Mr. Smith on the phone, Mr. McDonald
decided to reconsider the appeal. Finally, on August 19, 2013, Mr. McDonald informed Mr. Smith
that his appeal had been denied again. Although Mr. McDonald told Mr. Smith that the correct
paper might have been submitted, he asserted that the instructor made a reasonable effort to grade
the assignment, thus eliminating Mr. McDonald’s ability to overrule the grade.
Having exhausted UVU’s administrative appeals process, Mr. Smith decided to seek relief
in this Court, filing his Complaint on October 16, 2013 (Filing No. 1). In his Complaint, Mr. Smith
asserted claims of breach of contract, fraud, defamation, and discrimination. He requested
compensatory and punitive damages. The Defendants moved to dismiss this action on December
10, 2013 (Filing No. 16). On June 27, 2014, the Court granted the Defendants’ motion, dismissing
with prejudice Mr. Smith’s claims of fraud and defamation. The breach of contract, discrimination,
and punitive damages claims were dismissed without prejudice, and Mr. Smith was permitted to
amend his Complaint (Filing No. 24). He amended his Complaint on July 15, 2014, and the
Defendants again moved to dismiss this action (Filing No. 27).
III.

DISCUSSION

Mr. Smith asserts five claims in his Amended Complaint. First, he alleges that the
Defendants breached an implied contract by denying his appeal of his final grades in AVSC-3090
and AVSC-3010. Second, Mr. Smith alleges that the Defendants breached an implied contract by
failing to process his appeal of his final grade in AVSC-410G in accordance with UVU’s policies
and procedures. Third, Mr. Smith alleges that his treatment deprived him of property rights
guaranteed to him by the Fourteenth Amendment. Fourth, Mr. Smith alleges that his treatment
deprived him of liberty guaranteed to him by the Fourteenth Amendment. Finally, Mr. Smith

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alleges that the denial of his appeal of his grade in AVSC-410G stemmed from racial
discrimination. Mr. Smith also requests punitive damages on the discrimination claim.

A. Breach of Contract Claims
Mr. Smith’s Amended Complaint alleges that UVU entered into an implied contract with
him and that the handling of the administrative appeals process was a breach of that contract. But
these contract claims are barred by the Eleventh Amendment.
The Eleventh Amendment ensures that States are immune from suits brought by their own
citizens or citizens of other States in federal court. Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 98 (1984). There are some exceptions to state sovereign immunity. In certain contexts,
Congress can abrogate state immunity. Dellmuth v. Muth, 491 U.S. 223 (1989). Also, States can
waive their immunity, but courts will “find waiver only where stated ‘by the most express language
or by such overwhelming implications from the text as [will] leave no room for any other
reasonable construction.’” Edelman v. Jordan, 415 U.S. 651, 673 (1974) (quoting Murray v.
Wilson Distilling Co., 213 U.S. 151, 171 (1909)). A State does not waive its federal immunity by
consenting to suit in its own courts. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306
(1990). For a State to waive its federal immunity, it must specifically declare its intention to subject
itself to suit in federal courts. Id.
Mr. Smith argues that Utah has statutorily waived immunity for contract claims. While
Utah has waived immunity for contract claims, see Utah Code Ann. § 63G-7-301(1)(a), it has done
so only in the state courts of Utah. Utah Code Ann. § 63G-7-501. Because Section 501 provides
that Utah’s “district courts have exclusive, original jurisdiction over any action brought under this
chapter,” Utah has explicitly refused to consent to federal court jurisdiction over contract claims.

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Id.; see also Sutton v. Utah State Sch. for Deaf & Blind, 173 F.3d 1226, 1235 (10th Cir. 1999)
(finding that the statutory grant of exclusive jurisdiction to Utah state courts was a positive
rejection of federal jurisdiction). Mr. Smith argues that Sutton is no longer good law because the
statute has been amended and reordered since the decision. However, the relevant provision cited
by Sutton, though it has changed places in the statute, has not changed in wording. Utah district
courts still have “exclusive” jurisdiction over contract claims against the State. Utah Code Ann. §
63G-7-501.
Mr. Smith also argues that Utah Code Ann. § 63G-7-301(1)(b) eliminates the limitation of
jurisdiction to state courts in Utah. Section 63G-7-301(1)(b) reads, “Actions arising out of
contractual rights or obligations are not subject to the requirements of Sections 63G-7-401, 63G7-402, 63G-7-403, or 63G-7-601.” Because the language granting exclusive jurisdiction to Utah’s
state courts is found in § 63G-7-501, § 63G-7-301(1)(b) is inapplicable.
Although Utah has waived its immunity in contract suits in Utah state courts, it has not
consented to jurisdiction for such suits in federal court. Mr. Smith’s contract claims are barred by
the Eleventh Amendment.
B. Fourteenth Amendment Claims
Mr. Smith also alleges that his treatment by UVU violated the Fourteenth Amendment’s
protections of property and liberty. Mr. Smith’s claims under the Fourteenth Amendment fail.
First, the Eleventh Amendment creates a presumption that Utah is immune from suit. Halderman,
465 U.S. at 98. Utah has not waived its immunity from suit in this area of law. Although Mr.
Smith’s Complaint might be broadly construed as bringing an action pursuant to 42 U.S.C. § 1983,
that statute does not abrogate the sovereign immunity of Utah. Quern v. Jordan, 440 U.S. 332, 345
(1979). A State is not a “person” that can be sued under the meaning of § 1983. Will v. Michigan

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Dep’t of State Police, 491 U.S. 58, 71 (1989). Likewise, state officials cannot be sued in their
official capacity under § 1983. Id. This Court already has determined that the Defendants are arms
of the State of Utah (Filing No. 24 at 4). Therefore, Mr. Smith’s Fourteenth Amendment claims
must be dismissed.
To the extent that Mr. Smith’s Amended Complaint can be construed as suing Mr. Schwab,
Mr. Tanner, and Mr. McDonald in their individual capacities, these Fourteenth Amendment claims
are barred by qualified immunity. “Qualified immunity shields federal and state officials from
money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011). Thus, qualified immunity bars Mr.
Smith’s Fourteenth Amendment claims unless his allegations establish the violation of a
constitutional right that was “clearly established” at the time UVU officials denied his appeals. As
explained below, the existing case law on property and liberty rights in the educational context
does not clearly establish the existence of a right of the nature alleged by Mr. Smith.
1. Fourteenth Amendment Right to Property
Some cases have assumed that a property right to continue enrollment in a university exists
for due process purposes, see, e.g., Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 223
(1985); Waller v. S. Illinois Univ., 125 F.3d 541, 542 (7th Cir. 1997), and at least one case has held
that students have a property right in their continued enrollment in a university, Harris v. Blake,
798 F.2d 419, 422 (10th Cir. 1986). But no court has found that students have a property interest
in receiving a specific grade. To the contrary, courts have been extremely skeptical when reviewing
claims by students alleging that their property interest in a certain grade has been denied.

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In Smith v. Davis, the Fifth Circuit considered an action where the plaintiff sued because
of a low grade he received for an improperly submitted paper. Smith v. Davis, 507 F. App’x 359,
360 (5th Cir. 2013). The plaintiff alleged that the low grade prevented him from being eligible to
play football at the college that year. Id. After reviewing similar cases within the Fifth Circuit, the
court explained that “a student who is not denied access to public education does not have a
property or liberty interest implicated.” Id. at 362. Ultimately, the court held that the asserted due
process right had not been sufficiently established to defeat the defendant’s claim to qualified
immunity.
Similarly, in Feine v. Parkland Coll. Bd. of Trustees, the magistrate judge considered a
claim by the plaintiff that a ten-point deduction in his grade for inappropriate and offensive
comments violated a due process property right. Feine v. Parkland Coll. Bd. of Trustees, 2010
U.S. Dist. LEXIS 36913 (C.D. Ill. Feb. 25, 2010), report and recommendation adopted, 2010 U.S.
Dist. LEXIS 36910 (C.D. Ill. Apr. 14, 2010). “After considering the case law regarding property
interests in education and in the absence of any relevant authority to support the premise that a
student has a property interest in a single assignment grade,” the court determined that no property
right was implicated. Feine, 2010 U.S. Dist. LEXIS 36913, at *23–24.
Here, the existence of a property right is dubious. Mr. Smith alleges that he received lower
grades than he deserved, but he does not allege that those grades resulted in his dismissal or
suspension from the school. There is jurisprudential support for the idea that a student who is
denied the ability to continue their education has had a property right violated, but that did not
occur here. Even assuming arguendo that the existence of a property right was established, the
facts alleged by Mr. Smith do not establish a violation of such a property right.

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Most cases involving due process violations in the academic context are situations where
the student was dismissed from the school entirely. The Supreme Court has explained that
procedural due process requirements must be flexible, especially when dealing with school
suspensions or dismissals. Bd. of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 86
(1978). More specifically, the Supreme Court has recognized that there is a lesser need for stringent
procedural requirements when a student is dismissed for academic, instead of disciplinary, reasons.
Id. “Like the decision of an individual professor as to the proper grade for a student in his course,
the determination 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 decision-making.” Id. at 90. In Horowitz, the Court refused to hold that due process
had been violated when the student was dismissed for not meeting academic standards despite the
school’s failure to hold a hearing. Id.
Mr. Smith suffered a less significant consequence than the student in Horowitz and
received greater procedural protection. Mr. Smith complains of merely receiving disappointingly
low grades in three courses, not being suspended or dismissed from the school. Instead of being
afforded no appeal process, Mr. Smith appealed his grades multiple times. At each level, he had
the opportunity to state his grievance, receive a clear decision, and hear an explanation for that
decision. The procedural benefits afforded to Mr. Smith were superior to those that were provided
to the student in Horowitz. Mr. Smith’s claim to a Fourteenth Amendment property right must be
dismissed because there was no “clearly established” right to a better grade at the time of the
challenged conduct.

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2. Fourteenth Amendment Right to Liberty
Mr. Smith also alleges that his treatment violated the Fourteenth Amendment’s protection
of liberty. However, the Amended Complaint provides no indication of what liberty interest Mr.
Smith alleges the Defendants violated. Rather, Mr. Smith’s Amended Complaint only includes
three sentences which cite two cases and quote two passages that have only limited relevance.
These are conclusory, legal allegations, and the Twombly and Iqbal pleading standard requires far
more.
Mr. Smith’s Amended Complaint might be broadly construed as alleging a violation of
substantive due process. “The touchstone of due process is protection of the individual against
arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974). “An abuse of
power is arbitrary if it ‘shocks the conscience,’ but the plaintiff must show that the official conduct
is ‘unjustifiable by any governmental interest.’” Remer v. Burlington Area Sch. Dist., 286 F.3d
1007, 1013 (7th Cir. 2002) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).
“Although students may have some substantive due process rights while they are in school,
. . . education itself is not a fundamental right.” Dunn v. Fairfield Cmty. High Sch. Dist. No. 225,
158 F.3d 962, 966 (7th Cir. 1998). Consequently, any infringement on liberty interests that might
result from receiving unfairly low grades falls even shorter of Fourteenth Amendment protection.
Mr. Smith has failed to state a claim for a violation of his right to liberty protected by the
Fourteenth Amendment.
Nothing in Mr. Smith’s Amended Complaint approaches the level of arbitrary government
conduct required to establish a violation of substantive due process. As already stated, the UVU
officials afforded Mr. Smith multiple opportunities to state his grievances. Mr. McDonald refused
to overrule the professor’s grade in AVSC-410G because Mr. McDonald believed the professor

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had made a reasonable effort to grade the paper. A presumption that the professor’s judgment was
correct is understandable: the professor is in the best position to grade students. The government
conduct alleged here was reasonable and justifiable.
C. Discrimination and Punitive Damages Claims
Finally, Mr. Smith alleges that his treatment by UVU and the other Defendants was
discriminatory, and he requests punitive damages for the discrimination. The allegations in Mr.
Smith’s Amended Complaint fail to state a plausible claim for relief.
Mr. Smith alleges that he is a “Mixed Race Native American” and argues that his treatment
violated the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 (Filing No. 25 at
22–23). However, allegations of discrimination under the Fourteenth Amendment or Title VI must
include discriminatory intent. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1044 (7th Cir.
1987).
Mr. Smith alleges that he identified his race on his admissions application when applying
to UVU. However, since Mr. Smith only took online classes, it does not appear that any of his
instructors or other school officials ever interacted with Mr. Smith face-to-face nor had any other
reason to know Mr. Smith’s race. Mr. Smith fails to allege any reason why UVU officials might
have known his race and intentionally discriminated against him because of his race. None of Mr.
Smith’s allegations indicate intentional discrimination on the part of UVU officials. Mr. Smith
alleges that individuals from outside his protected class were allowed to turn in untimely
assignments. However, Mr. Smith does not provide any details or examples of such preferential
treatment, nor does he allege any facts supporting a discriminatory intent. Threadbare accusations
do not satisfy the standard articulated in Twombly and Iqbal. Mr. Smith’s claim for discrimination
must be dismissed.

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Because Mr. Smith’s discrimination claim must be dismissed, and because his Amended
Complaint requests punitive damages only on the discrimination claim, Mr. Smith’s request for
punitive damages must be dismissed also.
IV.

CONCLUSION

Having permitted Mr. Smith to plead his claims against Defendants twice, it appears that
there are no set of facts under which he can prove that he is entitled to relief. Therefore,
Defendants’ Second Motion to Dismiss (Filing No. 27) is GRANTED and the Amended
Complaint is DISMISSED with prejudice. Final judgment will issue under separate order.
SO ORDERED.

Date: 3/20/2015

Distribution:
Sean Smith
11 Flyntwood Drive
Anderson, IN 46012
Briana Lynn Clark
BINGHAM GREENEBAUM DOLL LLP
[e-mail]
James M. Hinshaw
BINGHAM GREENEBAUM DOLL LLP
[e-mail]

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