Hardman v. Johnson County Community College et al
Filing
32
MEMORANDUM AND ORDER granting 19 defendants' Motion to Dismiss for Failure to State a Claim. Signed by District Judge J. Thomas Marten on 4/10/14. Mailed to pro se party Pamela Hardman by regular mail. (mss)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Pamela Hardman,
Plaintiff,
vs.
Case No. 13-2535-JTM
Johnson County Community College,
et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Pamela Hardman attended Johnson County Community College (JCCC)
until May 10, 2013, when she received a one year suspension after making comments which
some employees and students found threatening. She has brought the present action
alleging deprivation of due process by the College and by various officers and agents of
the College. Hardman alleges she received no written notice of the charges, and was not
permitted to attend the hearing accompanied by an attorney. A centerpiece of Hardman’s
pro se case is a decision in a separate case, Byrnes v. Johnson County Community College, No.
10-2690-EFM, 2011 WL 166715 (D. Kan. Jan. 19, 2011). Thus, Hardman alleges that
“Plaintiff’s advocate Mary Green reminded Defendant [Mary] Nero [JCCC’s in-house
counsel] of the case of Byrnes v JCCC and the issue of failure of due process ruled on by U.S.
District Court Judge Eric Melgren in 2011.” (Dkt. 1, at 7).
At the same time she filed her Complaint, Hardman also requested a temporary
restraining order which would permit her to attend fall classes at the College. (Dkt. 4). This
motion also relied in particular on Byrnes. The court denied this motion, finding that
injunctive relief was not warranted in light of the facts of the case, including the potential
danger to public safety, as reflected in the original suspension for making threatening
comments. (Dkt. 5). In addition, the court also specifically noted that “the Byrnes case has
no application here, as that case involved a different plaintiff asserting different factual
claims against JCCC, and claims of due process deprivation are inherently fact-intensive.”
(Id.)
The defendants have moved to dismiss the action, arguing that Hardman has failed
to establish any violation of procedural or substantive due process
Factual Background
Hardman’s Complaint raises several factual contentions. From those allegations and
the attached exhibits, the following sequence of events can be established. The court notes
that in her response to the motion to dismiss, Hardman does not challenge any aspect of
this factual narrative.
2
On or around September 19, Nero forwarded to Hardman a copy of a letter by Dr.
Paul Kyle. Dr Kyle’s letter (which is attached as an exhibit to plaintiff’s Complaint1) stated:
As set forth in my letter dated May 10, 2013, you have been
temporarily suspended from Johnson County Community College as a result
of your repeated disruptive behavior in violation of the Student Code of
Conduct—319.01, Section 10. More specifically, several Hospitality &
Culinary employees raised concerns related to the erratic voice messages left
by you on May 3, 2013 and May 9, 2013. In these lengthy messages, you
made numerous false reports against JCCC employees, raised your voice
several times and made statements that were perceived by College personnel
as threatening, such as “the mud’s going to hit the fan,” and “I’m going to
have to do whatever I have to do!” ....
You have a history of exhibiting hostility, scaring, frightening and
making JCCC students and employees uncomfortable. As a result, you have
received verbal and written warnings, been required on several occasions to
meet with the Vice President or Dean of Student Services, and been removed
from certain campus areas for the safety of the JCCC community.
Your behavior in May 2013 was referred to the College’s Behavior
Intervention Team (BIT), a group charged with threat assessment and
violence prevention on campus. In light of your behavioral history at the
College, which has caused employees and students to fear for their safety, the
BIT felt that the appropriate action for protecting safety and security on
campus was to issue an emergency suspension. Our office made multiple
attempts to reach out to you via phone and email to discuss the
circumstances surrounding your suspension, but the attempts were
unsuccessful....
Hardman could have appealed the May suspension when it was first issued, but did
not do so. The September 2013 letter offered her an additional opportunity to appeal, by
sending a letter to JCCC Executive Director of Human Resources, Becky Centlivre. At the
same time she forwarded Dr. Kyle’s September letter, Nero also explained Hardman’s
1
The court may consider documents that are attached to a complaint. See GFF
Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381, 1384-85 (10th Cir. 1997).
3
appeal rights.
Hardman and her “advocate” Green met with Centlivre on October 8, 2013.2
Hardman read a statement that Green had prepared for her, which references Hardman’s
prior charges of “racial slurs and discrimination” by the Vice President of Student Services,
Dr. Dennis Day, including instances in which Day had allegedly “called me white trash and
alleged that I had defrauded welfare in three states.” (Dkt. 1, Exh. F). Hardman further
denied that she had slapped Dr. Days’s employee assistant, and that asserted she had been
slapped by Day. She alleges in her statement that she tried to file criminal charges over the
matter, but was told by the Overland Park Police Department that “a person like myself
was not allowed to make accusations about a person like him.” (Id.) She alleges that she
was also stalked and insulted by “the same black student assistant.” (Id.) She
acknowledged leaving the voice mails stating “The mud will hit the fan” and “I am going
to have to do what I have to do,” but that she was referring to legal action rather than
violence. (Id.)
According to the Complaint, JCCC in-house counsel Tanya Wilson called Green on
October 15, 2013, and stated that Centlivre was “not removing the suspension” and asked
to question Hardman by phone. Id. Hardman alleges that Wilson said she was Nero’s
supervisor and that Nero “had no authority to speak” on behalf of JCCC.
Hardman filed this lawsuit two days later.
2
The defendants state that they can find no record indicating that Green is
admitted to practice law in the State of Kansas.
4
Conclusions of Law
The defendants first argue that Hardman’s procedural due process claims should
be dismissed, to the extent she claims deprivation of a protected liberty interest based on
alleged injury to reputation. The defendants stress there is no allegation that the September
letter actually harmed her reputation. That is, the letter was disseminated only to agents
of the defendant JCCC, which cannot constitute publication. See Harris v. Blake, 798 F.2d
419, 422 (10th Cir. 1986).
Further, the defendants contend, she was given an appropriate level of process in
light of the circumstances of the case. See Salehpoor v. Shahinpoor, 358 F.3d 782 (10th Cir.
2004) (recognizing accelerated process in cases of allegedly disruptive or violent students).
Here, JCCC sent written notice to Hardman in May at the time of the suspension by
certified mail. After she denied receiving a copy of this notice, a further communication
was sent in September. Hardman did not appeal the original suspension in May. She was
permitted to present an appeal in September, and the letter from Nero explained her rights
regarding the appeal. After filing the appeal, Hardman did in fact meet with Ms. Centlivre.
Under the JCCC Operating Procedures, which are referenced by Hardman in her
Complaint, such an appeal is a two-step process, in which the appellant first has a
relatively informal “administrative meeting” with a designated administrator. After this
meeting, the administrator delivers a written decision, and after this decision the student
may then request a formal “appeal hearing” before a five-person panel, with a right to
counsel, present evidence, and testify.
5
Here, the plaintiff short-circuited this process by appearing with her putative
counsel Green on October 5, 2013, and attempting to then conduct an adversarial hearing.
Hardman then instituted the present action prior to any written decision by Ms. Centlivre.
“A party cannot create a due process claim by ignoring established procedures.” Santana
v. City of Tulsa, 359 F.3d 1241, 1244 (10th Cir. 2004).
The defendants contend that Hardman’s substantive due process claim is flawed,
because such claims are limited to rare cases in which government action has violated a
“fundamental right,” or action which “shocks the conscience.” Hardman cannot show such
a deprivation here because, “[i]n the context of school discipline, the limited protection
offered by substantive due process reinforces the principle that federal courts are not in the
business of setting aside every erroneous decision made by school administrators.” See
Gauder v. Leckrone, 366 F. Supp.2d 780, 787 (W.D. Wis. 2005).
Specifically, Hardman has failed to demonstrate the existence of the required
fundamental right, either in her generalized reputation or in continued post-secondary
education. See, respectively Zutz v. Nelson, 601 F.3d 842, (8th Cir. 2010) (“no fundamental
right to one’s own reputation”); Burch v. Jordan, No. 07-326, 2010 WL 539156, *22 (D. Kan.
2010) (“education is not considered a fundamental right”). Nor is there any indication of
actions by the defendants which would shock the conscience. Hardman concedes leaving
the phone messages, and does not deny they were delivered in a loud and agitated state.
The temporary suspension of Harman under these circumstances is not so divorced from
reality as to shock the conscience.
6
The defendants apply the same reasoning to the counts in Hardman’s Complaint
which relate to the actions of the Overland Park Police Department. They further note that
the police department is an independent agency and is not a defendant in the action. With
respect to the contract claim included in the Complaint, the defendants argue that the
plaintiff has not alleged that JCCC waived its explicit policy authorizing the suspension of
disruptive students. Finally, the individual defendants contend that they are entitled to
qualified immunity.
Hardman’s only response to the defendants’ motion is to again invoke the Byrnes
case, stating that “my complaint was based on the complaint in the Brynes [sic] v. J.C.C.C.
because I got the Brynes [sic] complaint from Miss Brynes’s [sic] attorney and the
Defendants know that and that they settled the Brynes [sic] case after the Judge ruled in
favor of Miss Brynes [sic].” (Dkt. 29, at 1). She attached a copy of the Byrnes decision, and
asserts in purely conclusory fashion that Byrnes establishes that she has a liberty interest
in her education, that the court cannot grant qualified immunity “without a hearing,” and
that JCCC “does not have legal due process,” and thus she need not “go through these
processes to file a case in court.” (Id.)
Of course, as already noted, this court denied Hardman’s motion for a temporary
injunction because Brynes has “no application here, as that case involved a different
plaintiff asserting different factual claims against JCCC, and claims of due process
deprivation are inherently fact-intensive.”
7
This decision was correct. In Brynes, the evidence showed that JCCC had disciplined
four nursing students for violating school policy by publishing certain medical
photographs on Facebook. In particular, the court noted credible evidence that a JCCC
supervisor had expressly permitted such publication, and that JCCC itself had abandoned
the appeals process, and effectively determined the students were guilty when an
administrator “publicly announced their guilt in a meeting with the entire nursing school.”
2011 WL 166715, at *3. The court also rejected the defendant’s qualified immunity
argument, because the defense was offered in opposition to the students’ request for an
injunction, and the immunity applies to claims for damages. In dicta, the court further
observed that the defendants’ actions could not be objectively reasonable given the explicit
permission which had been given to allow publication of the photographs.
Here, there is no allegation that Hardman was authorized by JCCC to make
disruptive or threatening messages. There is no allegation that any of the defendants made
any public communication of the charges against Hardman prior to the conclusion of the
complaint process. To the contrary, as noted above, it was Hardman who short-circuited
the appeal procedure by filing this action without seeking a final resolution of her appeal.
In the copy of Byrnes which Hardman attaches to her Response, she underlines the
passage in which the court acknowledged that exhaustion of remedies is not a prerequisite
to a Section 1983 action for deprivation of due process. Id. at *3 n. 12 (citing Patsy v. Board
of Regents, 457 U.S. 496 (1982)). But the point here is not that the present action is barred for
a lack of exhaustion, but whether the process offered by JCCC and abandoned by Hardman
8
was constitutionally adequate.
Thus, in Flagship Lake County Dev. No. 5 v. City of Mascotte,
Fed.Appx.
, 2014
WL 96104, *4 (11th Cir. March 13, 2014) the court rejected the plaintiff’s argument that
exhaustion is not required in due process actions under Section 1983 as irrelevant:
That concept is true; but it is also inapposite here. As this Court explained in
Cotton [v. Jackson, 216 F.3d 1328, 1330–31 (11th Cir.2000)], the rule that a
section 1983 claim is not stated unless inadequate state procedures exist to
remedy an alleged procedural deprivation “is not an exhaustion
requirement.” 216 F.3d at 1331 & n. 2. Instead, it is “a recognition that
procedural due process violations do not even exist unless no adequate state
remedies are available.” Id. at 1331 n. 2. In other words, the unavailability of
adequate remedies is an element of a procedural due process claim—as
opposed to an exhaustion requirement.
Here, Hardman makes no attempt to show how the procedure offered by JCCC was
deficient in any substantial respect. There is no allegation that the defendants prejudged
the case, as in Byrnes. The defendants are entitled to dismissal of the action because
Hardman was presented with the process to which she was entitled.
Finally, qualified immunity is appropriately asserted in response to the Complaint’s
request for actual and punitive damages (Dkt. 1 at 17). Hardman has wholly failed to make
any showing how the specific actions of the individual defendants violated a particular
constitutional right which was clearly established at the time of the alleged misconduct. See
Pearson v. Callahan, 555, U.S. 223, 231 (2009).
Further, because the plaintiff has made no effort to suggest how the deficiencies in
her complaint might be remedied through amendment, dismissal with prejudice is
appropriate. See Khan v. White, 35 F3d.Appx. 849 (10th Cir. 2002).
9
IT IS ACCORDINGLY ORDERED this 10th day of April, 2014, that the defendants’
Motion to Dismiss (Dkt. 19) is hereby granted.
s/ J. Thomas Marten
J. THOMAS MARTEN, JUDGE
10
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