Brown v. University of Kansas, The et al

Filing 188

MEMORANDUM AND ORDER granting 153 Motion for Summary Judgment; denying 186 Motion for Leave to File. Signed by District Judge Eric F. Melgren on 4/18/2014. (smg) Mailed to Pro Se Plaintiff via USPS regular mail.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

ROBERT M. BROWN,
Plaintiff,

vs.

Case No. 10-2606-EFM

UNIVERSITY OF KANSAS, et al.,
Defendants.

MEMORANDUM AND ORDER
Pro se Plaintiff Robert M. Brown brings suit against sixteen Defendants, including the
University of Kansas. He alleges under 42 U.S.C. § 1983 a deprivation of due process of law
regarding a property and liberty interest. He also asserts state claims of wanton and gross
negligence, tortious interference with prospective business advantage, and civil conspiracy.
Defendants now bring a motion for summary judgment. Because the Court concludes that no
genuine issue of material fact remains as to any of Plaintiff’s claims, the Court grants
Defendants’ Motion for Summary Judgment.
I.

Factual and Procedural Background1

Local Rules for Summary Judgment

1

In accordance with summary judgment procedures, the Court has set forth the uncontroverted facts,
and they are related in the light most favorable to the non-moving party.

The required rules for summary judgment motions in the District of Kansas are set forth
in D. Kan. Rule 56.1. Under that rule, a party is required to set forth a concise statement of
material facts in separately numbered paragraphs and must refer to record with particularity.2 In
addition, the content or substance of the evidence must be admissible, and hearsay testimony that
would be inadmissible at trial may not be included.3 In this case, Plaintiff’s facts are frequently
not supported by competent evidence. Numerous times, he cites to his Complaint as support for
his position even though his Complaint sets forth hearsay statements. Furthermore, the statement
of facts is not the place for argument. Plaintiff frequently attempts to controvert Defendants’
factual statements by argument. Sometimes, he controverts a one-sentence factual statement
with over four pages of argument and purported additional, immaterial and inadmissible facts.
Although Plaintiff is pro se, and the Court must afford him some leniency in his filings,4
he is still expected to “follow the same rules of procedure that govern other litigants.”5 The
Court reviewed Plaintiff’s purported facts and whether those facts were supported by the record.
The Court sets forth below the uncontroverted, material facts that were supported by admissible
evidence.
Facts

2

D. Kan. Rule 56.1(a) and (b)(2).

3

See Wright-Simmons v. City of Okla. City, 155 F.3d 1264, 1268 (10th Cir. 1998). “While the party
opposing summary judgment need not produce evidence in a form that would be admissible at trial, . . . the content
or substance of the evidence must be admissible. Hearsay testimony cannot be considered because a third party’s
description of a witness’ supposed testimony is not suitable grist for the summary judgment mill.” Id. (internal
quotation marks and citations omitted).
4

Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007).

5

Id.

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The University of Kansas, a state educational institution and separate state agency, is
funded in part by the State of Kansas. The Kansas Board of Regents controls and supervises the
University of Kansas. The University of Kansas, School of Law (“the School of Law” or “Law
School”), is an academic unit within the University of Kansas.
Gail Agrawal was the Dean of the School of Law from August 2006 until June 2010.
During that period, Dean Agrawal was an employee of the University of Kansas. In 2009-2010,
Stephen Mazza was Associate Dean at the School of Law. In June 2010, he was named interim
Dean of the School of Law, and in April 2011, he was named Dean. Mazza was an employee of
the University of Kansas at all times in his various capacities with the School of Law.
Andy Tompkins is the President and CEO of the Kansas Board of Regents. Bernadette
Gray-Little, Chancellor of the University of Kansas, assumed her duties as Chancellor in August
2009, and she is an employee of the University of Kansas. Joyce McCray Pearson was a faculty
member, and thus an employee, of the School of Law in 2009-2010. Pearson was also the Chair
of the University Judicial Board during 2009-2010. Wendy Rohleder-Sook was employed by the
School of Law as Associate Dean for Student Affairs in 2009-2010.
Plaintiff Robert Brown filed an application for admission to the School of Law on April
8, 2009. The application contained the following questions under “Character & Fitness”:
[27]c. Have you ever been arrested for, charged with, or convicted of a felony,
misdemeanor or infraction other than a traffic violation? (include diversions,
sealed or expunged records, and juvenile offenses)
d. Have you ever been arrested for, charged with, or convicted of a traffic
violating [sic] involving alcohol or a controlled substance? (include diversions,
sealed or expunged records, and juvenile offenses)
If you answered “yes” to any of these questions, please explain on a separate
sheet or electronic attachment submitted with your application and provide the

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date, nature of the offense or proceeding, name and location of the court or
tribunal, and disposition of the matter.6
Brown answered “no” to these questions.
The application also included the following certification, which Brown acknowledged by
his electronic submission of the application:
I certify, that, to the best of my knowledge, the information stated in this
application and in any supporting documents submitted is true and complete. I
understand that falsification, misrepresentation or failure to supply required
information in connections [sic] with this application is sufficient cause for denial
of my application or dismissal from the School of Law. I understand that I have
the duty to notify the Office of Admissions if there are any changes in my
answers after this application is submitted.
Brown also submitted the “Certification Letter,” which he signed, with his application, and this
letter included the following statements:
I certify that the information I have provided is true and complete; that I will
notify the Office of Admissions immediately if there is any change in the
information that I have provided in this application; that I am the author of the
statements or additional information included with this application; and that I
understand the statements made herein are the basis upon which my application
will be decided. In the event that any information is subsequently found to be
false, I understand that my admission may be voided and my matriculation
canceled. I understand that I have a duty to notify the Office of Admissions in
writing if there are any changes in my answers after this application is submitted.
I understand that admission is conditional upon meeting the requirements stated in
the University of Kansas School of Law catalog, and any further conditions
expressed at the time of admission. The School of Law does not authorize nor is
it bound by any requirements or conditions other than those communicated by the
Office of Admissions.7
On April 15, 2009, Brown was offered a spot on the School of Law’s waitlist. On April
21, 2009, Brown accepted the placement on waitlist by submitting the Law School’s standard
6

Pretrial Order, Doc. 144, p. 5, ¶ 16.

7

Pretrial Order, Doc. 144, p. 6, ¶ 18.

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form. By letter dated May 17, 2009, Brown provided additional materials to supplement his
application for admission to the School of Law, including a statement about his specific interest
in the School of Law and additional optional essay.
On August 19, 2009, Brown was offered admission to the School of Law’s fall 2009
entering class. Brown submitted a seat deposit fee waiver form to the School of Law on August
20, 2009, and was admitted. The first day of classes for the Fall 2009 academic term at the
University of Kansas was August 20, 2009.
On August 27, 2009, after the start of classes at the School of Law, Brown submitted a
letter stating that he would like to amend his law school application. He stated that he did not
consider his entire lifespan when he previously answered the questions. Amending his answer to
question 27, he disclosed the following criminal convictions:
Case No

Tribunal

Charge

Finding

96DV290
96DV740
90????
79????

Jo Co Dist Ct
Jo Co Dist Ct
Jo Co Dist Ct
Shawnee Co

Domestic Battery
Domestic Battery
DUI
DUI

Guilty
Guilty
Guilty
Guilty8

On August 27, 2009, in response to Brown’s letter, Associate Dean Wendy RohlederSook asked Brown to provide a further explanation regarding the criminal matters that he had
disclosed on that date. Dean Agrawal was involved in this decision to request more information
regarding Brown’s prior convictions.
On September 3, 2009, Associate Dean Rohleder-Sook made another request to Brown
asking him to provide further explanation regarding the criminal charges that he had disclosed.

8

Pretrial Order, Doc. 144, p. 7, ¶ 25.

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On September 11, 2009, Brown provided a letter in which he provided additional information
concerning those facts. In this letter, Brown asserted that his alcohol related offenses were a
long time ago at a time in which he exercised poor judgment. Brown also stated that although he
was found guilty on the domestic battery cases, the allegations of domestic violence were untrue.
On October 2, 2009, Associate Dean Rohleder-Sook emailed Brown to advise him that
additional charges (“12/05/94, Battery, dismissed by prosecutor; 12/21/94, Battery, dismissed by
prosecutor; and 4/23/04, Criminal Trespass, dismissed by prosecutor”)9 regarding him had been
discovered, and asked him to provide written authorization to the Johnson County District
Attorney’s office to release full information and documents to the School of Law regarding those
charges. She also asked for an explanation for why he did not disclose those criminal matters on
his application for admission or in his subsequent amendment. On October 2, 2009, Brown
responded via email to Associate Dean Rohleder-Sook and advised her that the two counts of
battery that she had questions about had been included in the documentation he had originally
provided with his amendment. He also provided additional information concerning the other
charges that she noted in her email.
On October 7, 2009, the School of Law requested copies of records from the Johnson
County District Court Clerk’s Office. Sometime thereafter, the Clerk’s Office provided a copy
of the trial record for the prosecutions in the DV290 and DV740 domestic battery charges
against Brown.
On November 30, 2009, Dean Agrawal, Associate Dean Rohleder-Sook, and Associate
Dean Mazza conferred about presenting the matter to the admissions committee. Also, on that

9

Pretrial Order, Doc. 144, p. 8, ¶ 28.

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date, Dean Agrawal and Associate Dean Rohleder-Sook decided to defer reconvening the
admissions committee until after the break.
Brown was allowed to continue in classes pending the School of Law’s review of his
application falsification. He sat for finals in December 2009 and received grades for the fall
semester of 2009. Brown then began the spring semester in January, 2010.10
On January 19, 2010, the 2008-2009 Law School Admissions Committee convened to
consider the status of Brown’s application and determined that they would have rejected his
application had they known of the criminal charges he failed to disclose.

Following the

Admissions Committee’s decision, Associate Dean Rohleder-Sook consulted with Associate
Dean Mazza, who advised that Brown would be afforded due process through the Law School
Dispute Resolution Procedure. To initiate that process, Associate Dean Rohleder-Sook had to
file a complaint regarding Brown’s failure to disclose his criminal history on his application.
On February 17, 2010, Associate Dean Rohleder-Sook collaborated with Associate Dean
Mazza, and then filed with Associate Dean Mazza, a letter with the reference “Allegation of
Academic Misconduct: Robert M. Brown.” This letter outlined Brown’s answers to questions
27c and 27d on his law school application for admissions as the basis for the complaint against
him. During the pendency of the School of Law’s allegation of academic misconduct, Defendant
Mazza communicated with Brown via emails that had the subject line “Disciplinary Procedures.”
On February 23, 2010, Brown met with Associate Dean Mazza. Brown responded to
Rohleder-Sook’s February 17, 2010, academic misconduct charges, in a written response dated

10

Brown completed this semester, as well. He also enrolled in the summer and fall 2010 sessions before he
was dismissed.

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February 28, 2010. In this letter, he asserted numerous reasons as to why he believed the
complaint was procedurally improper.
On April 14, 2010, Associate Dean Mazza emailed Brown and informed him that after
hearing back from the University of Kansas’s General Counsel’s office, Associate Dean
Rohleder-Sook would be filing a response denying his procedural objections. Associate Dean
Mazza also stated that the next step would be to schedule a three-judge panel to conduct a
hearing, but according to disciplinary rules, a hearing could not be conducted during finals week.
He questioned Brown as to whether Brown would prefer the hearing prior to or subsequent to
finals. Brown emailed Mazza on April 15, 2010, inquiring whether the hearing would be held
regarding his procedural objections and requested a response to his request for mediation. On
that same day, Mazza responded, via email, and stated that the procedural objections and
underlying substantive issue would be part of the same hearing, and that they did not intend to
mediate.
On April 16, 2010, Associate Dean Mazza and Brown again corresponded by email.
Brown stated that he was waiting for the response to his procedural objections and that he had
not been informed of the specific University Code, University Senate Rules and Regulations
(“U.S.S.R.”), or Honor Code provision that he had violated. Associate Dean Mazza replied to
Brown stating that he would forward Associate Dean Rohleder-Sook’s response once he had it
and that it was his understanding that the provision upon which the charges were based would be
included in that response. Associate Dean Mazza also proposed to schedule the hearing during
the week of May 10, 2010—after the conclusion of the examination period. Brown responded
that he would not agree to a hearing on the merits until his procedural objections had been
resolved. Associate Dean Mazza again opposed Brown’s request.

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On April 19, 2010, Associate Dean Rohleder-Sook placed a response to Brown’s
procedural objections in his School of Law mailbox. This response was dated April 16, 2010,
and it was signed by Rohleder-Sook. Associate Dean Mazza helped draft this written response.
On April 19, 2010, Associate Dean Mazza also provided Brown with the name of the hearing
panel chair and explained that all subsequent communications regarding this matter should be
between Brown and the hearing panel chair.
A hearing panel was convened to consider the academic misconduct charge against
Brown. Between April 19, 2010, and the time the hearing panel issued its decision on May 3,
2010, it met three or four different times. Brown never appeared before the hearing panel and
heard no more regarding the complaint until late May.
On May 3, 2010, the hearing panel issued its decision and dismissed the academic
misconduct claim against Brown. In this Memorandum decision, the panel stated, in part: “The
complaint fails to allege a violation of Section 2.6.1 or, to use the words of U.S.S.R. Section
6.5.3.1(d), any other University rule. Therefore, we hereby dismiss Dean Wendy RohlederSook’s complaint of February 17, 2010.”11 The Memorandum also stated:
While we are not aware of any University rule prohibiting misrepresentation on
an application for admission, we do not believe that is the end of the matter. Mr.
Brown’s application states “I understand that falsification, misrepresentation or
failure to supply the required information in connection with this application is
sufficient cause for denial of my application or dismissal from the School of
Law.” Similarly, Mr. Brown’s LSAC letter certifying his electronic application to
the Law School states: I certify that, to the best of my knowledge, the information
stated on this application and in any supporting documents submitted is true and
complete. I understand the falsification, misrepresentation or failure to supply
required information in connection with this application is sufficient cause for
denial of my application or dismissal from the School of Law. I understand that I

11

Pretrial Order, Doc. 144, p. 9, ¶37.

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have a duty to notify the Office of Admissions if there are any changes in my
answers after this application is submitted.
In each of these documents, signed by Mr. Brown, he acknowledged the Law
School’s right to dismiss him if his application for admission contains a
misrepresentation. Mr. Brown’s August 27, 2009, letter to Dean Wendy
Rohleder-Sook clearly concedes that he did in fact make misrepresentations on
his application. Therefore, we recognize that the Law School has the right to
dismiss Mr. Brown even though this Hearing Panel does not have the authority to
hear this case.12
Dean Rohleder-Sook’s formal involvement with Mr. Brown’s application and failure to
disclose his criminal history in that application concluded with the May 3, 2010, Memorandum
decision. Following the receipt of the hearing panel’s Memorandum, Associate Dean Mazza and
Dean Agrawal determined that the issue of Brown’s misrepresentations in his application for
admission was Dean Agrawal’s responsibility to decide. Dean Agrawal sought the legal advice
of the University’s Office of General Counsel.
On May 26, 2010,13 Brown received a letter from Dean Agrawal. In this letter, Dean
Agrawal advised Brown that she planned to dismiss him from the School of Law effective June
8, 2010, “for falsification, misrepresentation, and failure to supply complete, accurate and
truthful answers to [his] application for admission to the School of Law.”14 Dean Agrawal’s
letter further advised Brown that “if you believe that this action is inappropriate or that there are
mitigating factors that I should consider before dismissing you, then you must provide me with a
written response to this letter by 2:00 p.m. on June 3, 2010.” Brown provided Dean Agrawal, by
12

Hearing Panel’s Memorandum, Doc. 155-12.

13

In the Pretrial Order, the parties stipulate to the fact that the letter was dated May 25, 2010. In briefing,
the parties use the dates of both May 25 and 26, 2010. In reviewing the exhibit, the letter is dated May 26, 2010.
Thus, the Court will use that date.
14

Pretrial Order, Doc. 144, p. 10, ¶39. See also Dean Agrawal’s May 26, 2010 Letter to Brown, Doc. 168-

11.

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letter dated May 27, 2010, his written response, in which he stated that he believed his dismissal
was inappropriate because it violated the Code of Student Rights and Responsibilities as set forth
by the University Senate. He also stated that he requested a hearing and a written notice of the
nature and cause of the charges against him. Brown also requested a personal meeting with her
to discuss the matter. On May 28, 2010, Dean Agrawal responded by email to Brown’s request
for a personal meeting and stated that she saw no need to meet with him and declined his request
for a meeting.
On May 31, 2010, Brown addressed a letter to the “Chair of the University Judicial
Board,” and he submitted a “Request for Initial Hearing before the Judicial Board Pursuant to
6.4.3.1(b) of the University Senate Rules and Regulations and Election to Invoke the Jurisdiction
of the University Judicial Board Pursuant to University of Kansas Law School Dispute
Resolution Procedure Section (A)(4)(c).”15 Brown also submitted a “Request for Jurisdictional
Ruling pursuant to 6.5.2.1. of the University Senate Rules and Regulations.”16
In a letter dated June 3, 2010, Joyce McCray Pearson, Chair of the University Judicial
Board, informed Brown:
I have reviewed your requests for a jurisdictional ruling and an initial hearing,
both dated May 31, 2010. I have also reviewed University Regulations to
determine whether they authorize the Judicial Board to exercise jurisdiction in
your case. I regret to inform you that I have found no basis for jurisdiction by the
Judicial Board.
The Faculty Senate Rules and Regulations (FSRR) 2.1.1 gives the authority for
policies on admission to the faculties of the various schools and the College (see
excerpt below).
...
15

Pretrial Order, Doc. 144, pp. 10-11, ¶ 42.

16

Pretrial Order, Doc. 144, p. 11, ¶ 43.

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Admission standards lie within the jurisdiction of the schools and College because
the academic evaluation lies within the individual department and the professors
who have expertise in that field.
Pursuant to University Senate Rule and Regulation 6.5.3.1(c), I hereby dismiss
your petition. I have concluded that the Judicial Board lacks jurisdiction over the
subject matter.
This Judicial Board decision is the final determination of this matter by the
university. If you wish to proceed outside the university, Chancellor Bernadette
Gray-Little is the agency officer who should receive any service of subsequent
petition for judicial review of this action.17

Pearson had no knowledge of Brown prior to his May 31, 2010, filings with the University
Judicial Board.
On June 7, 2010, Dean Agrawal wrote Brown to advise him that he was dismissed from
the School of Law, effective June 8, 2010. Dean Agrawal consulted with the Office of General
Counsel in composing her June 7, 2010, dismissal letter. This letter stated, in part, that the
School of Law’s transcript would show that Brown’s dismissal from the Law School was based
on “falsification, misrepresentation, and failure to supply required information on [his]
application to the School of Law.”18
At Brown’s deposition, he acknowledged his criminal history: 1979 arrest for DUI in
Topeka, which was pled down to reckless driving; 1982 or 1984 arrest for DUI in Topeka for
which he received a diversion; 1986 arrest for DUI in Overland Park for which he was convicted
and sentenced to two days in jail, community service, and a 90-day suspension of his driver’s
license; during the period of 1994-96, he was arrested on three separate occasions and charged
17

Pretrial Order, Doc. 144, pp. 11-12, ¶ 44. See also McCray Pearson Letter to Brown, Doc. 155-3, p. 5.

18

Pretrial Order, Doc. 144, p. 13, ¶50.

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with four charges of domestic battery, resulting in convictions on three of those charges; and a
1999 DUI in Kansas City, Missouri, but the charge was dismissed.19
Brown acknowledged, during his deposition, that at the time he answered “no” to
questions 27c and 27d on his application for admission that he had incidents in his history that
were responsive to those questions. Specifically, with regard to question 27c, he stated that he
knew that he had been charged with, and arrested for, domestic battery. With regard to question
27d, he stated that he knew that he had been arrested for DUI’s and failed to disclose those
arrests on his application. Brown also testified that he thought that his criminal history “might
be looked upon unfavorably by the people reviewing [his] application for admission.”20 Since
Brown’s dismissal from the School of Law, he has not sought admission to any other law school.
On November 9, 2010, Plaintiff, proceeding pro se, filed suit against seventeen
Defendants.21 Plaintiff named the University of Kansas, as well as three individuals (Stephen
Mazza, Gail Agrawal, and Wendy Rohleder-Sook) who worked for the School of Law. He also
named Judicial Board Chair Joyce McCray Pearson and Chancellor of the University of Kansas
Bernadette Gray-Little. The other ten named Defendants are individuals who are members of the
Kansas Board of Regents, and he named these individuals in their official capacity.
Plaintiff brings four claims against Defendants Mazza, Agrawal, Rohleder-Sook, and
McCray Pearson: (1) a denial of a property and liberty interest without due process pursuant to
42 U.S.C. § 1983, (2) wanton and gross negligence, (3) tortious interference with prospective

19

Plaintiff attempts to controvert his previous deposition testimony by stating that he has no independent
recollection of two of his DUI arrests but only realized them when he saw his KBI report.
20

Doc. 155-5, p. 10.

21

Defendant the University of Kansas School of Law was previously dismissed. Doc. 69.

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business advantage, and (4) civil conspiracy. He seeks injunctive relief and damages in excess
of $2 million dollars. Defendants now seek summary judgment on all claims asserted against
them.
II.

Legal Standard

Summary judgment is appropriate if the moving party demonstrates that there is no
genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.22
The movant bears the initial burden of proof, and must show the lack of evidence on an essential
element of the claim.23 The nonmovant must then bring forth specific facts showing a genuine
issue for trial.24 These facts must be clearly identified through affidavits, deposition transcripts,
or incorporated exhibits—conclusory allegations alone cannot survive a motion for summary
judgment.25 The Court views all evidence and reasonable inferences in the light most favorable
to the party opposing summary judgment.26
III.

Analysis

Plaintiff brings four claims against Defendants: (1) denial of a property and liberty
interest without due process pursuant to 42 U.S.C. § 1983, (2) gross and wanton negligence, (3)
tortious interference, and (4) civil conspiracy. The Court will address each claim in turn.
A. 42 U.S.C. § 1983 Procedural Due Process Claim

22

Fed. R. Civ. P. 56(a).

23

Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)).
24

Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th Cir. 2005).

25

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197 (10th Cir. 2000) (citing Adler v. Wal-Mart Stores,
Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
26

LifeWise Master Funding v. Telebank, 374 F.3d 917, 927 (10th Cir. 2004).

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Initially, the Court must address the Defendants at issue with regard to this claim. “The
elements necessary to establish a § 1983 . . . violation will vary with the constitutional provision
at issue. But common to all §1983 . . . claims is the requirement that liability be predicated on a
violation traceable to a defendant-official’s own individual actions.”27 “[G]overnment officials
may not be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior.”28
In this case, at Plaintiff’s deposition, he testified that the Board of Regents’ members had
no knowledge of him or his claims until he served them with this lawsuit. In addition, he
admitted that the Kansas Board of Regents took no overt action against him.29 Thus, Plaintiff’s
claims against the members of the Board of Regents must be dismissed.30
Plaintiff brings a §1983 procedural due process claim on the basis that he had a property
interest in his continued enrollment in the School of Law and that he had a liberty interest in the
right to pursue a lawful calling of his own choosing that Defendants violated when they
dismissed him from the School of Law.31 Plaintiff brings this claim against Defendants Agrawal,
Mazza, Rohleder-Sook, and McCray Pearson.32 Defendants first contend that Plaintiff cannot
27

Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (quotation marks and citations omitted).

28

Id. (quotation marks and citation omitted).

29

Plaintiff states that he simply included the members of the Board of Regents as official capacity
defendants to make sure that any judgment would be operative.
30

The Court notes that in the Complaint, it appears that Plaintiff only asserts his §1983 claim (and other
state law claims) against Defendants Agrawal, Mazza, Rohleder-Sook, and McCray Pearson.
31

To the extent that Plaintiff also alleged a substantive due process claim, he dropped this contention in the
Pretrial Order. See Pretrial Order, Doc. 144, pp. 29-30.
32

The evidence demonstrates that Dean Agrawal is the individual who dismissed Plaintiff. Thus, it would
appear that because the alleged § 1983 violation is not traceable to Defendants Mazza, Rohleder-Sook, and McCray
Pearson’s own individual actions, Plaintiff fails to state a claim against these Defendants. The Court, however, will
continue to address this claim as if it relates to all four of the named Defendants.

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establish that he has a protected property or liberty interest. Defendants next contend that even if
Plaintiff had a property or liberty interest, the evidence demonstrates that Plaintiff’s dismissal
comported with due process requirements. Finally, Defendants contend that they are entitled to
qualified immunity.
“An essential principle of due process is that a deprivation of life, liberty or property ‘be
preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ”33 Courts
follow a two-step process to evaluate procedural due process claims. First, the court must
determine if the individual “possess[ed] a protected interest such that the due process protections
were applicable.”34

Next, the court must determine if the individual was “afforded an

appropriate level of process.”35
Property or Liberty Interest
“[P]roperty interests are ‘not created by the Constitution, they are created and their
dimensions are defined by existing rules or understandings that stem from an independent source
such as state law . . . .’ ”36 To have a property interest, an individual “must have more than a
unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”37
“The Tenth Circuit has held, based on various state laws, that students at public institutions may
have a protected property interest in their continued enrollment. Thus students, once admitted to
33

Riggins v. Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009) (quoting Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985)).
34

Id. (quotation marks and citation omitted). See also Fed. Lands Legal Consortium v. United States, 195
F.3d 1190, 1195 (10th Cir. 1999) (stating that only after finding that the plaintiff has been deprived of a property or
liberty interest does the court then determine whether the procedures satisfied due process).
35

Riggins, 572 F.3d at 1108 (quotation marks and citation omitted).

36

Fed. Lands Legal Consortium, 195 F.3d at 1196 (quoting Loudermill, 470 U.S. at 538).

37

Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).

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a post-secondary school, may have substantive or procedural property rights that would extend
certain protections to them regarding their dismissal.”38
In this case, Plaintiff contends that he possessed a property interest in his continued
education at the School of Law. Plaintiff paid his tuition and ultimately went through two
semesters of law school.39 Accordingly, the Court concludes that he had a property interest in
his continued enrollment which entitled him to procedural due process.
Although Plaintiff also asserts that he possessed a liberty interest in the right to pursue a
lawful calling of his own choosing,40 the Court finds otherwise. To implicate a liberty interest,
there must be publication of false and stigmatizing information.41 In this case, there is no
evidence that Dean Agrawal’s statements in her May 26, 2010, and June 7, 2010, letters were
disseminated to anyone outside of the University of Kansas.42 Nor is there any evidence that the
information was false. Thus, Plaintiff cannot demonstrate a liberty interest. Accordingly, the

38

Lemon v. Labette Comm. Coll., --- F. Supp. 2d. ---, 2014 WL 943105, at *5 (D. Kan. Mar. 11, 2014)
(collecting cases). See also Gossett v. Oklahoma ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, 1181
(10th Cir. 2001) (nothing that a student had a property interest in his place in nursing school); Harris v. Blake, 798
F.2d 419, 422 (10th Cir. 1986) (determining that a part-time graduate psychology student had a protected property
interest); Gaspar v. Bruton, 513 F.2d 843, 850 (10th Cir. 1975) (concluding that the individual’s enrollment fee in a
vocational nursing program granted her a property interest in her continued education); Lee v. Kan. State Univ.,
2013 WL 2476702, at *6 (D. Kan. June 7, 2013) (noting that “the Tenth Circuit recognizes a constitutional right to
due process before a student can be deprived of her property interest in her continued enrollment and graduate
education.”).
39

The issue of Plaintiff’s application falsification arose soon after Plaintiff had begun his first semester of
law school.
40

Plaintiff disavows that he is bringing a liberty claim based on his reputational interest. He affirmatively
states that “he has never claimed that he has a reputational interest that was damaged.” See Plaintiff’s Response to
Defendants’ Motion for Summary Judgment, Doc. 165, p. 134.
41

See Asbill v. Hous. Auth. of Choctaw Nations, 726 F.2d 1499, 1503 (10th Cir. 1984) (citations omitted).

42

See id. (“[S]uch intra-government dissemination, by itself, falls short of the Supreme Court’s notion of
publication.).

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Court will only address Plaintiff’s property interest when determining whether Defendants
provided the appropriate level of process.
Appropriate Level of Process
“The root requirement” of the due process clause is that an individual be afforded “an
opportunity for a hearing before he is deprived of any significant property interest.”43 “[T]he
interpretation and application of the Due Process Clause are intensely practical matters and [] the
very nature of due process negates any concept of inflexible procedures universally applicable to
every imaginable situation.”44 With regard to school decisions, different standards are used
depending on whether the school makes an academic judgment or a disciplinary determination.45
There are less stringent procedural requirements in the case of academic dismissals.46 “[T]o
satisfy Due Process prior to termination or suspension of a student for deficiencies in meeting
minimum academic performance, [school authorities] need only advise that student with respect
to such deficiencies in any form.”47 Disciplinary actions require “that the student be given oral
or written notice of the charges against him, and if he denies them, an explanation of the
evidence the authorities have and an opportunity to present his side of the story.”48 The “hearing”

43

Loudermill, 470 U.S. at 542 (citation omitted).

44

Goss v. Lopez, 419 U.S. 565, 578 (1975) (quotation marks and citation omitted).

45

Harris, 798 F.2d at 423.

46

Bd. of Curators of Univ. of Miss. v. Horowitz, 435 U.S. 78, 85-87 (1978).

47

Gaspar, 513 F.2d at 851. See also Trotter v. Regents of Univ. of N.M., 219 F.3d 1179, 1185 (10th Cir.
2000) (finding that with regard to academic dismissals, due process only requires prior notice of dissatisfaction with
the student’s performance and that the school’s decision to dismiss must be careful and deliberate).
48

Goss, 419 U.S. at 581 (addressing a ten-day suspension).

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before the school need not be formal, but may be an “informal give-and-take,” and “[t]here need
be no delay between the time ‘notice’ is given and the time of the hearing.”49
In this case, the parties disagree as to whether Defendants’ decision was academic or
disciplinary. Defendants contend that although Plaintiff’s wrongful and deceptive conduct was
the triggering event for his dismissal, the case involves a determination about his qualifications
for admission to KU’s School of Law. Plaintiff asserts that his expulsion, based on falsification
and misrepresentation on his law school application, is disciplinary. He further argues that
Defendants communicated with him about “disciplinary procedures.” The Court agrees with
Plaintiff and concludes that Defendants’ action was a disciplinary one.
Defendants’ procedure, however, satisfied due process requirements for disciplinary
dismissals. As noted above, disciplinary actions require that an individual be given notice of the
charges and the opportunity to be heard regarding those charges. A formal hearing is not
necessarily required. Dean Agrawal’s May 26, 2010, letter provided Plaintiff notice that she
intended to dismiss him, effective June 8, 2010, for “falsification, misrepresentation, and failure
to supply complete, accurate and truthful answers” in his application for admission to the School
of Law. Her four-page letter specifically detailed the charges against him and the events that had
occurred throughout the school year with regard to those charges. This letter also stated that
Plaintiff could provide a written response by Thursday, June 3, 2010, if he believed that his
dismissal was inappropriate or if there were mitigating circumstances. Thus, her letter provided
notice of the charges against him and allowed him time to respond to those allegations.

49

Id. at 582-84.

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Plaintiff provided his response to her May 26, 2010, letter on May 27, 2010. Plaintiff
complained that the appropriate procedures were not followed. Plaintiff failed to address the
substantive allegations against him, although he was given the opportunity, and failed to
controvert the charges against him. Indeed, the charges were true. There is no dispute that
Plaintiff lied on his law school application and that he did not disclose his criminal history. After
Dean Agrawal received Plaintiff’s letter, she noted in her June 7, 2010, dismissal letter that he
failed to address the charges against him. Thus, he was heard on the issue.
Plaintiff argues that his due process rights were violated because the School of Law failed
to follow its (and the University of Kansas’s) own rules and regulations in dismissing him. The
law is clear, however, that the failure to follow its own regulations does not, by itself, give rise to
a constitutional violation.50 Accordingly, Plaintiff’s contention that Defendants violated his due
process rights by failing to follow internal procedures is without merit.
In Goss, the Supreme Court was concerned with a student’s right to “avoid unfair or
mistaken exclusion from the educational process,”51 and stated that “it would be a strange
disciplinary system in an educational institution if no communication was sought by the
disciplinarian with the student in an effort to inform him of his dereliction and to let him tell his
side of the story in order to make sure than an injustice is not done.”52 In this case, Defendants

50

Trotter, 219 F.3d at 1185. See also Horowitz, 435 U.S. at 92 n. 8; Schuler v. Univ. of Minn., 788 F.2d
510, 515 (8th Cir. 1986).
51

Goss, 419 U.S. at 579.

52

Id. at 580. “The Due Process Clause will not shield [an individual] from suspensions properly imposed . .
. .” Id. at 579. Plaintiff argues that he was not afforded due process protections, but he primarily complains that
Defendants did not follow the internal procedures that he deemed would be appropriate to his case. Plaintiff does
not controvert the fact that he lied on his law school application. Instead, he attempts to explain why he did not
disclose his previous offenses. In Goss, the Supreme Court noted that an individual is entitled to present his side of
the story if he denies the charges against him. Goss, 419 U.S. at 581.

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communicated with Plaintiff about the charges against him and made an effort to hear his side of
the story as to why he lied on his law school application. Thus, Defendants provided Plaintiff
with the appropriate level of process. The Court concludes that there is not a genuine issue of
material fact as to whether Defendants’ conduct violated Plaintiff’s due process rights. It did
not. Accordingly, the Court grants Defendants summary judgment on this claim.53
B. Gross and Wanton Negligence54
Plaintiff claims that Defendants Mazza, Agrawal, Rohleder-Sook, and McCray Pearson
had a legal duty to know the basic constitutional rights of students, and they violated this duty
when they dismissed him from law school without providing due process of law. He claims that
Defendants intentionally disregarded, with malicious intent, his constitutional rights. The Court
previously found that Defendants provided Plaintiff with adequate process. Thus, they did not
breach a duty of due process. Furthermore, even if the Court could construe Defendants’
conduct as a breach, which it cannot, there is no evidence that Defendants acted with
wantonness. Gross and wanton negligence requires evidence that there was “a realization of the
imminence of danger and reckless disregard or complete indifference to the probable
consequences.”55 In this case, there is no evidence of such conduct by Defendants. Thus,
Defendants are entitled to summary judgment on this claim.
C. Tortious Interference with Business Advantage

53

The Court finds it unnecessary to address Defendants’ qualified immunity argument.

54

The Court will not address Defendants’ discretionary function immunity argument or their estoppel
argument as to Plaintiff’s state law claims. Instead, the Court will consider the merits of Plaintiff’s claims.
55

Boaldin v. Univ. of Kan., 242 Kan. 288, 293, 747 P.2d 811, 814 (1987) (citation omitted).

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Plaintiff asserts that Defendants Mazza, Agrawal, Rohleder-Sook, and McCray Pearson
interfered with his legitimate business expectancy of having a successful law career. The
required elements for a tortious interference with business advantage claim are:
(1) the existence of a business relationship or expectancy with the probability of
future economic benefit to the plaintiff; (2) knowledge of the relationship or
expectancy by the defendant; (3) that, except for the conduct of the defendant,
plaintiff was reasonably certain to have continued the relationship or realized
the expectancy; (4) intentional misconduct by defendant; and (5) damages
suffered by plaintiff as a direct or proximate cause of defendant’s
misconduct.56
In addition, a plaintiff must demonstrate that the defendant acted with malice.57 Malice is
defined as acting “with actual evil-mindedness or specific intent to injure.”58
Plaintiff cannot demonstrate a genuine issue of material fact as to the elements of this
claim. First, Plaintiff cannot demonstrate a reasonable expectancy in practicing law. He also
cannot demonstrate that but for the conduct of Defendants, he was reasonably certain to have
realized this expectancy. Finally, he cannot demonstrate intentional misconduct, or malice, by
Defendants. Thus, Defendants are entitled to summary judgment on this claim.
D. Civil Conspiracy
Plaintiff also claims that Defendants Mazza, Agrawal, Rohleder-Sook, and McCray
Pearson conspired with each other to deny his due process rights. Civil conspiracy requires “(1)
two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object
or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result
56

Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106, 1115 (1986). See also Pepsi-Cola Bottling
Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1242, 1262-63 (10th Cir. 2005) (citing PulseCard, Inc. v. Discover
Card Servs., Inc., 917 F. Supp. 1488, 1498 (D. Kan. 1996)).
57

Pepsi-Cola Bottling Co., 431 F.3d at 1263 (citation omitted).

58

Turner, 240 Kan. at 8, 722 P.2d at 1113.

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thereof.”59 The Court eliminated the alleged procedural due process violation by its discussion
above. Thus, there is no object to be accomplished by these Defendants. Furthermore, there is
no evidence of unlawful overt acts or evidence of a meeting of the minds. Thus, Plaintiff cannot
demonstrate that there is a genuine issue of material fact as to whether Defendants engaged in
civil conspiracy. Accordingly, the Court grants Defendants summary judgment on this claim.
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment
(Doc. 153) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Leave to File Surreply (Doc.
186) is DENIED.
IT IS SO ORDERED.
Dated this 18th day of April, 2014.

ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE

59

Stoldt v. City of Toronto, 234 Kan. 957, 967, 678 P.2d 153, 166 (1984).

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