Lee v. Kansas State University et al

Filing 58

MEMORANDUM AND ORDER granting 30 Motion to Dismiss Party. IT IS FURTHER ORDERED BY THE COURT that the stay of discovery and other Rule 26 activities shall be LIFTED. Signed by District Judge Julie A. Robinson on 8/20/14. (hw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
)
)
Plaintiff,
)
)
v.
)
)
DR. CAROL W. SHANKLIN, et al.,
)
)
Defendants.
)
__________________________________________)
GRACE LEE,

12-cv-2638-JAR

MEMORANDUM AND ORDER
Plaintiff Grace Lee filed a ten-count complaint against Kansas State University (“KSU”),
Dr. Carol W. Shanklin, Dr. James A. Guikema, Dr. Duane W. Crawford, Dr. James W. Neill,
Dr. Haiyan Wang, and Ms. Heather Reed (“Defendants”), seeking damages related to her
termination from a graduate teaching assistant (“GTA”) position and from her graduate studies
in statistics at KSU. Defendants filed a Motion to Dismiss,1 pursuant to Fed. R. Civ. P. 12(b)(6)
and 12(b)(1), which the Court granted in part and denied in part.2 The Court dismissed all claims
against KSU and all claims against the remaining defendants in their official capacities. The
Court also dismissed Counts II through X against Defendants in their individual capacities.
Thus, the only claim remaining is Plaintiff’s procedural due process claim in Count I against
Defendants in their individual capacities. Defendants Shanklin, Crawford, Wang and Reed
(“Movants”) filed a second Motion to Dismiss (Doc. 31), pursuant to Fed. R. Civ. P. 12(b)(6),

1

Doc. 12.

2

Doc. 21.

which is currently before the Court.3 Defendants Guikema and Neill do not join in the motion.
Movants argue that Plaintiff has failed to allege facts sufficient to state a claim against them
under Count I and that they are protected by qualified immunity. The motion is fully briefed and
the Court is prepared to rule. For the reasons set forth below, the Motion to Dismiss is granted.
I.

Qualified Immunity
Movants argue that even if the Complaint alleges sufficient facts to state a claim, they are

entitled to qualified immunity. Qualified immunity “protects government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’”4 “Qualified immunity
gives government officials breathing room to make reasonable but mistaken judgments,” and
“protects ‘all but the plainly incompetent or those who knowingly violate the law.’”5 Because
qualified immunity is the “norm” in private actions against public officials, there is a
presumption of immunity when the defense is raised.6 When a defendant claims qualified

3

The Court notes that its previous decision did not address the issue raised in the current Motion to
Dismiss—the viability of Count I with respect to each individual Movant. In the previous motion to dismiss,
Defendants argued with regard to Count I that Plaintiff lacked a property interest for purposes of her § 1983 claim,
that Plaintiff was afforded due process because she was dismissed for academic reasons, and that “[t]here was no
authority that would have put KSU Officials clearly on notice that Lee could not be dismissed from the Graduate
School for failure to make satisfactory progress given her self-imposed lack of a major professor (or refusal to
consider changing her research topic).” Defendants’ only argument as to each of the Defendant’s personal
participation was with respect to the conspiracy claim. Therefore, the Court did not address the arguments raised in
the instant Motion to Dismiss. See Doc. 13 at 10–17, 24–25. Even if it had, the law-of-the-case doctrine does not
apply to rulings revisited before entry of a final judgment and unless a party is prejudiced by lack of notice and the
opportunity to be heard on the new ruling, “district courts generally remain free to reconsider their earlier
interlocutory orders.” Stewart v. Beach, Case No. 08-3295-JAR, 2011 WL 6740545, *3 (D. Kan. Dec. 22, 2011),
aff’d 701 F.3d 1322 (10th Cir. 2012).
4

Stanton v. Sims, 134 S. Ct. 3, *4 (2013) (citations omitted).

5

Id. at *5 (citations omitted).

6

Pahls v. Thomas, 718 F.3d 1210, 1227 (10th Cir. 2013) (citation omitted).

2

immunity, the plaintiff bears the “heavy two-part burden” of showing (1) the defendant’s
violation of a constitutional right; and (2) that the “infringed right at issue was clearly
established at the time of the allegedly unlawful activity such that a reasonable [official] would
have known that his or her challenged conduct was illegal.”7
First, as the Court stated in its June 7, 2013 Memorandum and Order, a graduate student
has a constitutional right to due process before she can be deprived of her property interest in her
continued enrollment and graduate education.8 Courts in the Tenth Circuit have consistently
upheld a graduate student’s property interest in her continued graduate education.9 However, the
inquiry does not end there, and the Court must determine whether this right is clearly
established, and a reasonable official would have known that the conduct alleged by Plaintiff
was unconstitutional.
This part of the qualified immunity analysis can be considered along with the motion to
dismiss the § 1983 claim for failure to state a claim. “Often, § 1983 . . . liability and the defense
of qualified immunity travel hand-in-hand, and when they do, we consider their substantive
components together.”10 The Tenth Circuit in Dodds v. Richardson, stated that “[b]ecause a
plaintiff can neither recover under § 1983 from a government official nor overcome the official’s
7

Martinez v. Carr, 479 F.3d 1292, 1294–95 (10th Cir. 2007) (citations omitted).

8

See Doc. 21 at 12–13; see also Goss v. Lopez, 419 U.S. 565, 574 (1975); Gasper v. Bruton, 513 F.2d 843,
850 (10th Cir. 1975) (holding that an individual’s place in a post-secondary nursing program constitutes a protected
property interest); Harris v. Blake, 798 F.2d 419, 422 (10th Cir. 1986) (graduate student had a property interest in
his graduate education which entitled him to due process); Gossett v. Okla. ex rel Bd. of Regents for Langston Univ.,
245 F.3d 1172 (10th Cir. 2001) (nursing student had a property right in his nursing education and was entitled to due
process under the U.S. Constitution); Byrnes v. Johnson Cnty. Cmty. Coll., No. 10-2690-EFM-DJW, 2011 WL
166715, at *1–2 (D. Kan. Jan. 19, 2011) (“Defendants argue that Plaintiff has no constitutionally protected property
interest in her post-secondary education, but the law is clearly otherwise.”).
9

Harris v. Blake, 798 F.2d 419, 422 (10th Cir. 1986) (citations omitted).

10

Pahls, 718 F.3d at 1227.

3

assertion of qualified immunity without demonstrating that official violated his constitutional or
statutory rights, the legal analysis required to surmount these separate obstacles is often related,
if not identical.”11 Therefore, the Court will address the Rule 12(b)(6) challenge and the
qualified immunity arguments together under Count I below.
II.

Rule 12(b)(6)
A.

Legal Standard

Rule 12(b)(6) provides a vehicle for a party to challenge the legal sufficiency of a claim.
The requirements underlying the legal sufficiency of a claim stem from Rule 8(a), which requires
“a short and plain statement of the claim showing that the pleader is entitled to relief.”12 To
survive a motion to dismiss, a complaint must present factual allegations, assumed to be true,
that “raise a right to relief above the speculative level,” and must contain “enough facts to state a
claim to relief that is plausible on its face.”13 “[T]he complaint must give the court reason to
believe that this plaintiff has a reasonable likelihood of mustering factual support for these
claims.”14 The plausibility standard does not require a showing of probability that a defendant
has acted unlawfully, but requires more than “a sheer possibility.”15 “[M]ere ‘labels and
conclusions,’ and ‘a formulaic recitation of the elements of a cause of action’ will not suffice; a

11

614 F.3d 1185, 1193–94 (10th Cir. 2010).

12

Fed. R. Civ. P. 8(a).

13

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

14

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in the original).

15

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

4

plaintiff must offer specific factual allegations to support each claim.”16 Finally, the Court must
accept the nonmoving party’s factual allegations as true and may not dismiss on the ground that
it appears unlikely the allegations can be proven.17
The Supreme Court has explained the analysis as a two-step process. For the purposes of
a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]
we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”18 Thus,
the court must first determine if the allegations are factual and entitled to an assumption of truth,
or merely legal conclusions that are not entitled to an assumption of truth.19 Second, the court
must determine whether the factual allegations, when assumed true, “plausibly give rise to an
entitlement to relief.”20 “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.”21
B.

Factual Allegations

The Court’s previous Memorandum and Order sets forth the factual allegations in detail,
and the Court adopts those factual allegations for purposes of the instant Motion to Dismiss.22 In

16

Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Twombly, 550 U.S. at

555).
17

Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

18

Id.

19

Id. at 679.

20

Id.

21

Id. at 678.

22

See Doc. 21 at 4–9.

5

addition, the Court construes the following facts alleged in Plaintiff’s Complaint, in the light
most favorable to Plaintiff.
Plaintiff Lee was a graduate student in the Department of Statistics at KSU, but was
dismissed from the Department of Statistics, and, subsequently, from the KSU Graduate School.
Plaintiff argues she was dismissed in retaliation for filing formal grievances against her former
major professor, Dr. Haiyan Wang, and for reporting potential academic fraud on the part of a
former KSU Statistics PhD student.
On October 5, 2011, Plaintiff filed a grievance with the Associate Vice President of the
KSU Office of Research and Sponsored Programs and Associate Dean of the KSU Graduate
School, Dr. James A. Guikema, against Wang, an associate professor within the Department of
Statistics at KSU, requesting removal of Wang as her major professor and from the supervisory
committee overseeing and advising Plaintiff in the pursuit of her PhD. This grievance followed
months of informal complaints by Plaintiff to the Head of the Department of Statistics at KSU,
Dr. James W. Neill, with the complaints generating no official action.
In response to the grievance, no hearing was held as required by KSU Graduate School
grievance policies, but instead Defendants settled on a compromise suggested by the Interim
Associate Dean of the KSU College of Arts and Sciences, Dr. Joseph Aistrup. Under the
compromise solution, Neill assumed a “co-major professor” role with Wang, who requested to
continue as Plaintiff’s major professor.
Wang’s abusive and unprofessional behavior toward Plaintiff continued unabated for
several months, despite Neill’s presence as co-major professor. Following consultation with and
the advice of the Associate Dean of the KSU Graduate School, Dr. Duane W. Crawford, Jr.,

6

Plaintiff filed another grievance against Wang on March 18, 2012. The administration of the
KSU Graduate School and the Department of Statistics, including Neill and Guikema,
disregarded the grievance procedures set forth in the Graduate Handbook and proceeded without
holding a hearing on Plaintiff’s grievance. Plaintiff’s grievance was approved and Wang was
removed from her role as Plaintiff’s major professor and from Plaintiff’s supervisory committee.
Despite Plaintiff’s repeated entreaties, Neill removed himself as Plaintiff’s co-major professor on
or about April 9, 2012, leaving Plaintiff without a major professor.
After Plaintiff’s two major professors were removed, she was required to find another
major professor in order to continue her studies. On April 19, 2012, Neill informed Plaintiff that
her summer GTA position was in jeopardy if she could not locate another major professor by
April 27, 2012, because GTA positions were only awarded to students making satisfactory
academic progress. Plaintiff contacted every professor within the Department of Statistics in an
attempt to locate another major professor, but was unable to secure a new major professor by
April 27, 2012, due to the short time-frame, the complexity of her dissertation work and the high
faculty turnover in the Statistics Department. On or about April 27, 2012, Plaintiff was
terminated from her summer GTA position. Although the reason given for Plaintiff’s
termination was her lack of a major professor, many other graduate students within the
Department of Statistics did not have major professors at that time. The GTA position had been
one of Plaintiff’s only sources of financial aid as a graduate student.
After her dismissal from the GTA position, Plaintiff continued to seek a new major
professor in the Statistics Department. Numerous professors suggested that she might have to
change to a new research topic or change to a new department in order to find a new major

7

professor. On April 30, 2012, Crawford told Plaintiff that he didn’t see any alternative to
Plaintiff starting her doctoral program and research anew on another topic with another major
professor, which she interpreted as a penalty for her grievances against Wang.23
On April 30, 2012, Plaintiff sent an email to the Dean of the KSU Graduate School— Dr.
Carol Shanklin, and to Guikema and Crawford, recounting the difficulties Wang’s prior students
had experienced as a result of Wang’s erratic behavior, and raising the idea that she was the
victim of retaliation by Neill for daring to complain about conditions within the Department of
Statistics and for having the temerity to file a grievance against Wang.24
On May 1, 2012, Guikema told Plaintiff by email that her chances of completing her PhD
in the Statistics Department were “almost down to zero” and suggested Plaintiff should explore
discussions with graduate programs outside of the Department of Statistics.25
On May 2, 2012, Plaintiff sent an email to Guikema and Crawford, asking for help and
mentioning that some Department of Statistics faculty members were “not completely
disinclined” to be Plaintiff’s major advisor.26 Plaintiff reiterated in the email that she thought the
adverse and disproportionate actions being taken against her by Defendants were the result of
retaliation for filing grievances against Wang and the eventual removal of Wang as Plaintiff’s
major professor.27

23

Complaint, Doc. 1 at ¶¶ 54–56.

24

Id. at ¶¶ 57–59., Ex. H.

25

Id. at ¶¶ 60–61.

26

Id. at ¶¶ 64–66, Ex. J.

27

Id. at ¶ 66.

8

On May 4, 2012, the Associate Dean and Director of Student Life at KSU, Heather Reed,
requested a meeting with Plaintiff and asked Plaintiff not to have any contact with faculty or
staff at the Department of Statistics or the Graduate School.28 When Plaintiff met with Reed and
Guikema on May 7, 2012, Guikema confirmed that Plaintiff no longer had any chance for
success in continuing her PhD in the Statistics Department.29 Guikema told Plaintiff that
Plaintiff could ask faculty members of other Graduate School departments if she could be a
student in their program, but stated that staying in the Department of Statistics was not an option,
because Plaintiff did not have a major professor by the April 27, 2012 deadline.30 Guikema told
Plaintiff that Plaintiff had approximately six weeks to be accepted into a different department
within the KSU Graduate School or she would be dismissed from the Graduate School entirely.31
During the May 7, 2012 meeting, Reed informed Plaintiff that Plaintiff was not to have any
further contact with the faculty of the Department of Statistics.32 Guikema emailed Plaintiff on
May 7, 2012, following the meeting, to clarify his remarks at the meeting, stating that he had
never said Plaintiff was dismissed from the Department of Statistics, only that it was likely that
the Graduate School would receive a communication from the Department of Statistics
recommending Plaintiff’s dismissal from the Graduate School for not having a major professor.33

28

Id. at ¶¶ 67–68.

29

Id. at ¶ 70.

30

Id. at ¶ 71–72.

31

Id. at 74–75.

32

Id. at ¶ 76.

33

Id. at ¶¶ 77–79.

9

On May 9, 2012, Plaintiff received a letter from Neill informing her that she had been
recommended for termination from the Statistics graduate program for failure to find a
replacement professor. The letter was authored by Neill and stated that “Dr. Haiyan Wang
served as major professor until the student filed a grievance with the objective of removing Dr.
Wang. This request was approved by all concerned.”34 Contrary to the terms of Neill’s
termination letter, several faculty members, including the academic progress committee
members, objected to the dismissal of Plaintiff.35 Following Plaintiff’s receipt of the letter, she
asked a few faculty members of the Department of Statistics if they were aware that she had been
dismissed from the graduate program, and on May 11, 2012, Plaintiff received a highly charged
email from Guikema admonishing her for contacting them.36
On May 31, 2012, Plaintiff received a letter from Guikema informing Plaintiff that she
was being dismissed from the KSU Graduate School for failure to make satisfactory progress, on
the recommendation of the Statistics Department.37
Following inquiries with the Department of Statistics Graduate Program Director about
the possibility of filing a petition for reinstatement, Plaintiff emailed Guikema about the
possibility of being reinstated to the Department of Statistics pursuant to procedures set forth in
the KSU Graduate Student Handbook. Guikema told Plaintiff by email that any such petition
was unlikely to succeed and asked Plaintiff to refrain from using highly accusatory statements

34

Id. at ¶¶ 80–82, Ex. M.

35

Id. at ¶ 83.

36

Id. at ¶ 84, Ex. N.

37

Id. at ¶¶ 85–86.

10

such as “I am a victim” and “punished in retaliation” because the accusations had not been
proven nor substantiated in a grievance.
III.

Count I - Procedural Due Process Claim under 42 U.S.C. § 1983
To succeed on a procedural due process claim, an individual must prove two elements:

first, that she possessed a constitutionally protected liberty or property interest such that the due
process protections were applicable, and second, that she was not “afforded an appropriate level
of process.”38 As indicated by the Court’s qualified immunity analysis in both this motion and
the Court’s June 7, 2013 Memorandum and Order, Plaintiff had a protected property interest in
her ongoing education. Because Plaintiff possessed a constitutionally protected property interest
such that the due process protections were applicable, the Court turns to the question of whether
she successfully alleges that she was afforded an inappropriate level of process before she was
deprived of that property interest.
Defendants argued in their previous motion to dismiss that Plaintiff was provided the
minimal due process required for dismissal for academic reasons. “When a school makes an
ostensibly academic judgment about a student, the procedural requirements of the Due Process
Clause are satisfied if the student is given prior notice of the deficiencies in his academic
performance and if the challenged decision is ‘careful and deliberate.’”39 However, this Court
held that “[t]he question of whether the dismissal was academic or disciplinary is a fact question

38

Copelin-Brown v. N.M. State Pers. Office, 399 F.3d 1248, 1254 (10th Cir. 2005) (quotation omitted).

39
Gossett v. Okla. ex rel. Bd. of Regents for Langston Univ., 245 F.3d 1172, (10th Cir. 2001) (citing Bd. of
Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 85 (1978)).

11

that cannot be resolved on a motion to dismiss; the facts, as alleged by Plaintiff, suggest that the
dismissal may have had some disciplinary aspect.”40 The Supreme Court has held that:
Since the issue first arose 50 years ago, state and lower federal
courts have recognized that there are distinct differences between
decisions to suspend or dismiss a student for disciplinary purposes
and similar actions taken for academic reasons which may call for
hearings in connection with the former but not the latter.41
Where the decision is not academic, the requirement of a hearing, where a student could present
his side of the factual issue, could “provide a meaningful hedge against erroneous action.”42
The Supreme Court set forth the baseline of a student’s procedural due process rights in
Goss v. Lopez, finding that “[a]t the very minimum, therefore, students facing suspension and the
consequent interference with a protected property interest must be given some kind of notice and
afforded some kind of hearing.”43 The Tenth Circuit has considered whether a student’s due
process rights require procedural safeguards in addition to those provided for in Goss.44
In Watson, the Tenth Circuit applied the balancing test of Mathews v. Eldridge:
Under Mathews, a court must balance three factors: (1) the private
interest that will be affected by the official action, (2) the probable
value, if any, of additional or substitute procedural safeguards, and
(3) the government’s interest, including the fiscal and

40

Doc. 21 at 15–16.

41

Horowitz, 435 U.S. at 87.

42

Id. at 89.

43

Smith v. Barber, 316 F. Supp. 2d 992, 1032 (D. Kan. 2004) (quoting Goss v. Lopez, 419 U.S. 565, 579
(1975)); see also Riggins v. Goodman, 572 F.3d 1101, 1108 (10th Cir. 2009) (“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.’”) (citation omitted).
44

Id.

12

administrative burden, that the additional or substitute procedural
requirements would entail.45
In Count I, Plaintiff alleges that Defendants violated her procedural due process rights
by:
a. Failing to provide Plaintiff Lee with the proper disciplinary
appeals; b. Failing to afford Plaintiff a fair and reliable method for
determining the factual foundation of Plaintiff’s dismissal; c.
Failing to advise Plaintiff of the grounds of the charges against her
and the nature of the evidence against her; d. Failing to give
Plaintiff Lee an opportunity to be heard in her own defense; e.
Failing to give Plaintiff Lee an opportunity to cross-examine
witnesses in support of Defendants’ position to dismiss Plaintiff
from KSU; f. Failing to afford Plaintiff Lee the opportunity to call
witnesses; g. Failing to allow Plaintiff Lee meaningful assistance
of counsel prior to her dismissal; h. Failing to make an
administrative hearing record sufficient to permit meaningful
judicial review; i. Imposing a punishment that was not based on
substantial evidence, and which is disproportional to the violation
alleged; j. Failing to appoint an impartial arbiter to preside over
Plaintiff Lee’s petition for reinstatement; k. Failing to afford
Plaintiff Lee a proper disciplinary appeal.46
Despite this long laundry list set forth in the Complaint, Plaintiff’s Response to the Motion to
Dismiss merely states that if a student’s dismissal is for disciplinary reasons, due process
requires that the student receive both notice and a hearing before the dismissal, and “[t]he notice
and hearing do not have to be strictly formal, but their formality must reflect the severity of the
circumstances and situation.”47

45

Wastson ex rel. Watson v. Beckel, 242 F.3d 1237, 1240 (10th Cir. 2001) (citing Mathews v. Eldridge, 424
U.S. 319 (1976)).
46

Doc. 1 at 20–21.

47

Doc. 42 at 8–9.

13

A plaintiff “must demonstrate a substantial correspondence between the conduct in
question and prior law allegedly establishing that the defendant’s actions were clearly
prohibited.”48 Plaintiff has pointed to no authority establishing that she was due the process she
sets forth in Count I. In fact, the Court in Watson denied plaintiff’s request to have the court
order that students facing expulsion or long-term suspension be afforded “written notice
specifying the charges, legal counsel, the presentation of evidence, the right to cross-examine
witnesses, an impartial board, a transcript of the hearing, and independent review of the
decision,” noting that precedent indicates “that due process does not require all of these rights.”49
Furthermore, failure to follow state or local procedural requirements does not necessarily
constitute a denial of due process; “the alleged violation itself must result in a procedure which
itself falls short of standards derived from the Due Process Clause.”50
“[T]he root requirement” of the Due Process Clause has been described by the Supreme
Court as being “that an individual be given an opportunity for a hearing before he is deprived of
any significant property interest.”51 The Court finds that, accepting Plaintiff’s factual allegations
as true, she has stated a sufficient claim that she was deprived of due process by being dismissed
without a hearing. However, that does not end the qualified immunity inquiry or the inquiry
under Rule 12(b)(6).

48

Riggins, 572 F.3d at 1111 (citation omitted).

49

Watson, 242 F.3d at 1242–43 (citing Gorman v. Univ. of R.I., 837 F.2d 7, 16 (1st Cir. 1988) (rejecting the
argument that due process requires the right to counsel, to cross-examine witnesses, or to have a transcript of the
hearing); Newsome v. Batavia Local Sch. Dist., 842 F.2d 920, 924 (6th Cir. 1988) (holding that due process does not
require the right to cross-examine witnesses or that investigating officials be excluded from the deliberation
process)).
50

Riggins, 572 F.3d at 1109, n.3 (citation omitted).

51

Id. at 1108 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)) (emphasis in original).

14

Movants argue that they are entitled to qualified immunity and that the § 1983 claim
against them should be dismissed because Plaintiff has failed to allege specific facts showing
that each of the Movants—Shankin, Crawford, Wang and Reed—personally participated in
Plaintiff’s dismissal from KSU. In Dodds v. Richardson, the Tenth Circuit found that although
the plaintiff had set forth facts that, if proven to be true, stated a violation of his constitutional
rights, “that conclusion alone does not merit denying Defendant qualified immunity.”52 The
court noted that although there was no dispute that the defendant acted under color of state law
as required by § 1983, there was a dispute as to whether defendant himself, rather than only his
subordinates, violated the plaintiff’s constitutional rights.53 The Tenth Circuit cited Justice
Thomas’ explanation:
In conducting qualified immunity analysis . . . , courts do not
merely ask whether, taking the plaintiff’s allegations as true, the
plaintiff’s clearly established rights were violated. Rather, courts
must consider as well whether each defendant’s alleged conduct
violated the plaintiff’s clearly established rights. For instance, an
allegation that Defendant A violated a plaintiff’s clearly
established rights does nothing to overcome Defendant B’s
assertion of qualified immunity, absent some allegation that
Defendant B was responsible for Defendant A’s conduct.54
A similar determination with respect to each individual defendant is necessary in
addressing a motion to dismiss under Rule 12(b)(6) in a § 1983 case. The elements necessary to
establish a § 1983 violation “will vary with the constitutional provision at issue” but there is a
requirement “that liability be predicated on a violation traceable to a defendant-officials’s ‘own

52

Dodds v. Richardson, 614 F.3d 1185, 1193 (10th Cir. 2010).

53

Id. at 1194, n.1.

54

Id. at 1194 (quoting Hope v. Pelzer, 536 U.S. 730, 751 n. 9 (2002) (Thomas, J., dissenting)).

15

individual actions.’”55 In Ashcroft v. Iqbal, the Supreme Court held that the complaint was
insufficient to state a claim against Attorney General Ashcroft and FBI Director Mueller, noting
that while plaintiff’s “account of his prison ordeal could, if proved, demonstrate unconstitutional
misconduct by some governmental actors,” the issue on the motion to dismiss was a narrower
one: did plaintiff “plead factual matter that, if taken as true, states a claim that [Ashcroft and
Mueller] deprived him of his clearly established constitutional rights.”56 Likewise , the Tenth
Circuit has held that:
“The Twombly standard may have a greater bite” in the context of
a § 1983 claim against individual government actors, because
“they typically include complex claims against multiple
defendants.” . . . “[I]t is particularly important in such
circumstances that the complaint make clear exactly who is alleged
to have done what to whom, to provide each individual with fair
notice as to the basis of the claims against him or her, as
distinguished from collective allegations against the state.”57
“In order for liability to arise under § 1983, a defendant’s direct personal responsibility for the
claimed deprivation of a constitutional right must be established.”58
In addition to being governed by constitutional law, Plaintiff’s claim is also governed by
§ 1983 itself, which states, in part: “Every person who . . . subjects, or causes to be subjected,
any citizen . . . to the deprivation of any rights, privileges, or immunities secured by the

55

Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676

(2009)).
56

556 U.S. 662, 666 (2009) (a Bivens suit to which the Court analogized a § 1983 action).

57

Kan. Penn Gaming, LLC, v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (quoting Robbins v. Okla. ex
rel. Dep’t of Human Servs., 519 F.3d 1242, 1249–50 (10th Cir. 2008)) (internal citations omitted, emphasis in
original).
58

Id. at 1221 (quoting Trujillo v. Williams, 465 F.3d 1210, 1227 (10th Cir. 2006)).

16

Constitution and laws . . . shall be liable to the party injured . . . .”59 Thus, there is an element of
causation and “a defendant may not be held liable under § 1983 unless he or she subjected a
citizen to the deprivation, or caused a citizen to be subjected to the deprivation.”60
The Court must conduct a differentiated analysis and Plaintiff must establish that each
defendant caused her to be subjected to a violation of her due process rights.61 In Tonkovitch, the
Tenth Circuit analyzed each defendant’s conduct separately to determine whether the plaintiff
had “pointed to any clearly established law that stands for the proposition that the sorts of
actions taken by [that defendant] might form the basis of a procedural due process claim.”62
Plaintiff has failed to allege that each of the Movants personally participated in her
dismissal. Rather, she alleges that the Movants either met with her or emailed her in an attempt
to assist or advise her. Giving advice upon request and meeting to discuss alternatives are not
unconstitutional conduct. Crawford met with Plaintiff and responded to a couple of her emails
with an email. Reed sent Plaintiff an email requesting a meeting with her and Guikema and
asking her not to contact faculty or staff at the Statistics Department in the meantime. Reed’s
email was sent on Friday, May 4, 2012, asking her to refrain from contacting staff in the
Statistics Department in the meantime until her meeting on Monday morning. This email was
sent after the April 27 deadline Plaintiff was given to find a new major professor.

59

Tonkovitch v. Kan. Bd. of Regents, 159 F.3d 504, 518 (10th Cir. 1998) (quoting 42 U.S.C. § 1983)
(emphasis in original).
60

Id.

61

Pahls, 718 F.3d at 1231.

62

Tonkovitch, 159 F.3d at 519.

17

There are no allegations of conduct by Wang after Plaintiff succeeded in having her
removed as major professor and as a member of the supervisory committee overseeing and
advising Plaintiff on the pursuit of her PhD. Plaintiff suggests in her response that Wang was on
the graduate student progress committee and that Wang had the ability to influence decisions
made by the Department of Statistics. However, there is nothing in the Complaint alleging that
Wang participated in Plaintiff’s dismissal.
Plaintiff has also failed to allege that any of the Movants were supervisors that were
responsible for a policy that caused her due process violation. While government officials may
not be held liable for the unconstitutional conduct of their subordinates under a theory of
respondeat superior, government officials may be held responsible for constitutional violations
under a theory of supervisory liability.63 A plaintiff may succeed in a § 1983 claim against a
defendant-supervisor by demonstrating:
(1) the defendant promulgated, created, implemented or possessed
responsibility for the continued operation of a policy that (2)
caused the complained of constitutional harm, and (3) acted with
the state of mind required to establish the alleged constitutional
deprivation.64
Plaintiff has failed to identify any specific policies over which a particular Movant possessed
responsibility that led to the alleged constitutional violation.65

63

Pahls, 718 F.3d at 1225 (citations omitted).

64

Id. (quoting Dodds, 614 F.3d at 1199).

65

Id. at 1226 (citing Dodds, 614 F.3d at 1203–04 (holding that evidence showed Defendant “may have
deliberately enforced or actively maintained the [unconstitutional] policies”) and Brown v. Montoya, 662 F.3d 1152,
1165–66 (10th Cir. 2011) (ruling that complaint failed to state supervisory-liability claim under § 1983 because it
failed to connect defendant to the allegedly unconstitutional policy)).

18

Plaintiff’s reference in Count I to “Defendants,” “KSU” and “KSU Graduate School’s
Administration” is insufficient. “When various officials have taken different actions with
respect to a plaintiff, the plaintiff’s facile, passive-voice showing that his rights ‘were violated’
will not suffice. Likewise insufficient is a plaintiff’s more active-voice yet undifferentiated
contention that ‘defendants’ infringed his rights.”66
Although Plaintiff argues that some of the Movants participated in the denial of her due
process rights by failing to hold a hearing, it was the act of dismissing Plaintiff that precluded the
opportunity for a hearing before deprivation of her property interest.67 Plaintiff alleges in Count
I that the dismissal decisions were unilateral. On May 9, 2013, pursuant to a letter signed by
Neill, the Department of Statistics Graduate Student Progress Committee recommended
Plaintiff’s dismissal from the Statistics graduate program “based on her failure to find a
replacement major professor to supervise her PhD research.”68 In a letter signed by Guikema,
this recommendation was accepted by the Graduate School on or about May 31, 2012.69 Plaintiff
alleges in Count I that:
The decision to dismiss Plaintiff Lee was not made by an impartial
decision maker. Instead, the Department Head of the Department
of Statistics unilaterally made the decision. The Associate Vice
President of the Office of Research and Sponsored Programs

66

Pahls, 718 F.3d at 1225 (citing Tonkovich, 159 F.3d at 532–33; and Brown, 662 F.3d at 1165 (“The
Complaint refers to actions of ‘Defendants,’ but that is not sufficient to show how Secretary Williams ‘might be
individually liable for deprivation of [Mr. Brown’s] constitutional rights.’”)).
67

See Riggins, 572 F.3d at 1108 (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)
(“[T]he root requirement” of the Due Process Clause has been described by the Supreme Court as being “that an
individual be given an opportunity for a hearing before he is deprived of any significant property interest.”)).
68

Doc. 1,Ex. M.

69

Doc. 1, Ex. O.

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ratified said decision. Both of these decision makers were and
continue to be biased.70
These two decision-makers—Neill and Guikema—have not moved for dismissal and remain as
defendants in this case.
Plaintiff also argues that her unconstitutional dismissal was not the result of a singular act
by Neill dismissing her from the Department of Statistics, after which Guikema also engaged in
a singular act of dismissing Plaintiff from the Graduate School. Rather, Plaintiff argues that each
of the Movants “were personally involved in a process that ultimately resulted in Plaintiff’s
dismissal.”71 However, this Court has already rejected as conclusory and insufficient the
conspiracy claims against all the Defendants.72 Plaintiff cannot resurrect her conspiracy claim by
alleging that the individual Movants were involved in a “process” that ultimately resulted in
Plaintiff’s dismissal. Thus, a plaintiff must show that “clearly established law would advise
reasonable decisionmakers that the [ ] process and their role in it” as alleged “transgressed
clearly established constitutional rights.”73 Iqbal makes it clear that in order to state a sufficient
§ 1983 claim, the Plaintiff must allege that an individual government official through his or her
own actions violated a person’s civil rights.74
To make out a viable § 1983 claim and to overcome Movants’ assertions of qualified
immunity, Plaintiff “must establish that each defendant—whether by direct participation or by

70

Doc. 1 at ¶ 125.

71

Doc. 42 at 16–17 (emphasis in original).

72

Doc. 21 at 23–25.

73

See Riggins, 572 F.3d at 1115 (citations omitted) (emphasis added).

74

Iqbal, 556 U.S. at 676–77.

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virtue of a policy over which he possessed supervisory responsibility—caused a violation of
[P]laintiff’s clearly established constitutional rights.”75 The Complaint fails to allege
unconstitutional conduct by the Movants. Plaintiff has failed to establish that each of the
Movants caused a violation of her clearly established constitutional rights. Failure to make such
a showing dooms both her § 1983 cause of action against the Movants and entitles the Movants
to qualified immunity. The Court finds that the Motion to Dismiss should be granted.
The Magistrate Judge granted the Defendants’ Motion to Stay Discovery and Other
Rule 26 Activities pending a ruling on the Motion to Dismiss.76 In light of this Court’s ruling on
the Motion to Dismiss, the stay shall be lifted as to the remaining two defendants, Neill and
Guikema.
IT IS THEREFORE ORDERED BY THE COURT that the Motion to Dismiss (Doc.
31) is GRANTED.
IT IS FURTHER ORDERED BY THE COURT that the stay of discovery and other
Rule 26 activities shall be LIFTED.
IT IS SO ORDERED.
Dated: August 20, 2014
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE

75

Pahls, 718 F.3d at 1228.

76

Doc. 54.

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