McBrearty v. Kappeler et al
MEMORANDUM OPINION & ORDER: (1) 17 MOTION to Dismiss is GRANTED. It is further ordered, (2) W/in 21 days, parties shall meet. (3) W/in 10 days after the meeting, file a joint status report. Signed by Judge Joseph M. Hood on 3/31/2017.(SCD)cc: COR,Pro Se Pla (via US Mail)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
DR. VICTOR KAPPELER, et al.,
Civil No. 5:16-cv-121-JMH
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon Defendants’ Motion to
Dismiss [DE 17]. Plaintiff has filed a Response [DE 19] stating
her objections to the Motion, and Defendants have filed a Reply
[DE 23] in further support of their motion. It is now ripe for
consideration, and the Court concludes that it shall be granted
for the reasons stated in this Memorandum Opinion and Order.
Plaintiff was a student in an online class taught by Dr.
Carole Garrison at Eastern Kentucky University (“EKU”). Class
Blackboard. During the course, Plaintiff complains that one or
more of her posts on the class message board were removed by
Garrison and that Garrison had notified two other students in the
class. In those communications, Garrison referenced Plaintiff’s
age and indicated that she felt that Plaintiff’s communications
had used “code words” for racist ideas. She complains that Garrison
shared Plaintiff’s final grade in the class with one of those
students and told her about private or out-of-class conversations
between Garrison and Plaintiff. Plaintiff complained to the acting
dean of the department and was referred to EKU’s Office of Equity
and Inclusion (OEI). She complains, as well, that she has heard
inquiries that she made to Dean Victor Kappeler, and has heard
nothing as to the results of any investigation made in response to
concerning a possible Federal Educational Rights and Privacy Act
(“FERPA”) violation. Plaintiff avers that she complained to the
Civil Rights Commission, which set up a mediation but ultimately
closed the case because Plaintiff had not filed her complaint in
a timely matter. In her Amended Complaint [DE 14], she avers that
EKU, the EKU College of Justice and Safety, and Kappeler and
engaged in age discrimination arising under the Student Handbook,
invasion of her privacy and violations of FERPA, as well as
negligent supervision, and that they violated her right to free
speech under the First Amendment and to due process under the
Fourteenth Amendment to the United States Constitution.
To survive a Rule 12(b)(6) motion to dismiss, “a complaint
must contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). The plausibility standard is met
when the facts in the complaint allow “the court to draw the
misconduct alleged.” Id. The complaint need not contain “detailed
factual allegations,” but must contain more than mere “labels and
conclusions.” Id. Put another way, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
EKU is an arm of the Commonwealth of Kentucky and, thus, has
sovereign immunity from claims where immunity is not waived in the
absence of an exception. 1 See U.S. Const. amend. XI; see, e.g.,
Robinson v. Bd. of Regents of EKU, 475 F.2d 707, 711 (6th Cir.1973)
applicable to female dormitory residents under an equal protection
challenge); Harrison v. Chitwood, 5:12-CV-336-JMH, 2013 WL 593994,
*2 (E.D.Ky. Feb. 15, 2013); Clements v. Eastern Kentucky Univ.,
No. Civ. A. 5:05-466-JMH, 2006 WL 1464617, *2-3 (E.D.Ky. May 22,
For that matter, EKU is not a “person” subject to suit under 42 U.S.C. § 1983.
See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (“neither a
State nor its officials acting in their official capacities are ‘persons' under
§ 1983”); Alexander v. Univ. of Kentucky, No. 5:10-CV-48-REW, 2012 WL 1068764,
at *11 (E.D. Ky. Mar. 28, 2012) (“UK is entitled to summary judgment because,
as an arm of the Commonwealth, it is not a ‘person’ to whom liability under
section 1983 may attach”) (citing Will, 491 U.S. at 71; Dillon-Barber v. Regents
of Univ. of Mich., 51 F. App'x 946, 952 n. 6 (6th Cir. 2002)).
2006). Further, claims against the EKU College of Justice and
Safety, which is a subdivision of EKU, and those against Kappeler
and Garrison in their official capacities are merely different
ways of pleading actions against EKU. See Kentucky v Graham, 473
U.S. 159, 165 (1985) (official-capacity suits “generally represent
only another way of pleading an action against an entity of which
an officer is an agent”) (quoting Monell v. New York City Dept. of
Soc. Servs., 436 U.S. 658, 690, n. 55 (1978)); Harrison, 2013 WL
593994 at *2; Clements, 2006 WL 1464617 at *2-3. Plaintiff’s claims
against EKU, the EKU College of Justice and Safety, and Kappeler
and Garrison in their official capacities asserted in the Amended
Complaint shall be dismissed.
Next, the Court dismisses Plaintiff’s bare bones claim for
individual capacities, because she bases the claim upon a provision
in the University Student Handbook. In this instance, the handbook
Plaintiff relies upon provides that “[t]he University Handbook for
Students serves as a means of communicating to the student the
rights, responsibilities, and obligations of being a member of the
University community; however, this is not to be regarded as a
Students at p. 4. 2 In the absence of some intent on the part of
EKU to be bound by the provisions, the Court is not persuaded that
discrimination by which Plaintiff can recover. See Green v. Sandy,
No. 5:10-CV-367-JMH, 2011 WL 4688639, at *4 (E.D. Ky. Oct. 3, 2011)
(observing that the EKU student athlete handbook “is a unilateral
policy manual which states that EKU “reserves the right to alter,
amend or modify this handbook at any time without prior notice.”
language showing [EKU's] intent to be bound by the handbook's
provisions.”) (internal citations omitted).
Plaintiff’s claims for violation of FERPA against Kappeler
and Garrison in their individual capacities are also dismissed, as
protected interests to the individual student, like Plaintiff,
which can be enforced by this Court. Gonzaga Univ. v. Doe, 536
“When a court is presented with a Rule 12(b)(6) motion, it may consider the
complaint and any exhibits attached thereto, public records, items appearing in
the record of the case, and exhibits attached to defendant's motion to dismiss
so long as they are referred to in the complaint and are central to the claims
contained therein” See Bassett v. NCAA, 528 F.3d 426, 429 (6th Cir.2008)). In
this instance, the handbook is referred to in the complaint and, in any event,
likely constitutes a public record since it can be viewed at EKU’s website. See
t%20Handbook.pdf (last viewed March 30, 2017).
U.S. 273, 291 (2002) (“FERPA's nondisclosure provisions contain no
rights-creating language, they have an aggregate, not individual,
institutions. They therefore create no rights enforceable under §
1983.”); see Bevington v. Ohio Univ., 93 Fed. App’x 748, 750 (6th
Cir. 2004). To the extent that Plaintiff seeks to graft a Fourth
Amendment claim or to articulate an invasion of privacy claim vis
à vis FERPA, her claim is without merit. See U.S. v. Jacobsen, 466
U.S. 109, 137-38 (1984) (stating that “the requirements of the
Fourth Amendment apply only to ‘searches’ and ‘seizures…’”); Small
v. Fetter, 5:14-006-KKC, 2015 WL 1393585, at *4 (E.D. Ky. Mar. 25,
2015) (“[T]he fourth amendment cannot be triggered simply because
a person is acting on behalf of the government. Instead the fourth
reasonably be characterized as a ‘search’ or a ‘seizure’”) (quoting
United States v. Attson, 900 F.2d 1426, 1429 (9th Cir. 1990));
L.S. v. Mount Olive Bd. of Educ., 765 F. Supp. 2d 648, 657 (D.N.J.
2011) (“plaintiffs' claims under the Fourth Amendment must be
record by school district employees does not implicate Fourth
Amendment rights”); see also Katz v. United States, 389 U.S. 347,
350 (1967) (“[T]he Fourth Amendment cannot be translated into a
general constitutional ‘right to privacy’”).
Next, the Court concludes that Plaintiff’s claim for relief
under the Commonwealth of Kentucky’s tort of invasion of privacy
cannot survive this motion on the facts averred in the Complaint
“There are four theories under which a plaintiff may recover for
invasion of privacy under Kentucky law: (1) intrusion upon another
person's seclusion, (2) appropriation of another person's name or
likeness, (3) unreasonable publicity into another person's private
life, and (4) publicity that places another person in false light.”
Dukes v. Mid-E. Athletic Conference, No. 3:16-CV-00303-CRS, 2016
WL 5844608, at *3 (W.D. Ky. Sept. 30, 2016); McCall v. Courier–
Journal & Louisville Times Co., 623 S.W.2d 882, 887 (Ky. 1981)
(adopting the general invasion of privacy principals found in
Restatement (Second) of Torts (1976), § 652A). In this instance,
shared information about their conversations and about Plaintiff’s
grade with another student. “One who gives publicity to a matter
concerning the private life of another is subject to liability to
the other for invasion of his privacy, if the matter publicized is
of a kind that (a) would be highly offensive to a reasonable
person, and (b) is not of legitimate concern to the public.”
Ghassomians v. Ashland Ind. School Dist., 55 F. Supp.2d 675, 693
(quoting Restatement (Second) of Torts, § 652D). “Publicity” where
given to a private life means that the information was passed along
in a way to substantially certain to become general knowledge
either through dissemination to the public at large or to a
multitude of persons. Restatement (Second) of Torts, § 652D, cmt.
(a). Where a communication is made to a single person or a small
group of persons, it does not constitute “publicity.” Id. In this
instance, Plaintiff has not identified the type of publicity
required to state a claim for invasion of privacy against Garrison
or any of the other defendants, for that matter. This claim shall
Only Plaintiff’s claims under 42 U.S.C. § 1983 alleging a
violation of her right to freedom of speech under the First
Amendment of the United States Constitution against Kappeler and
Garrison, in their individual capacities, remain for the Court to
consider. The Court is not persuaded, however, that Plaintiff can
state a claim on this theory against Kappeler. She complains that,
as Garrison’s supervisor, he did not take action to unwind any
harm that she experienced once “he knew of the issue” and that he
did not discipline Garrison. Amended Compl. at 6. Even assuming
that he should have done so, the facts of the Complaint suggest
nothing more than mere “tacit approval of the goings on.” Gregory
v. City of Louisville, 444 F.3d 725, 751 (6th Cir. 2006) (citing
Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir.1999)). “Supervisory
liability under § 1983 cannot attach where the allegation of
liability is based upon a mere failure to act.” Id. (quoting Bass,
167 F.3d at 1048). “Rather, the supervisors must have actively
engaged in unconstitutional behavior. Therefore, liability must
lie upon more than a mere right to control employees and cannot
Kappeler “could not have prevented Dr. Garrison from committing
her [alleged] wrongdoing against Plaintiff, he is still liable for
what he did or didn’t do after the fact i.e. he was negligent” [DE
19 Page ID# 114]. This is not enough, and Plaintiff’s remaining
claims against Kappeler must be dismissed, as well.
Dismiss by claiming that she needs discovery with respect to the
customs and practices of Defendants. Litigation before this Court
is not an opportunity to engage in a fishing expedition, and she
will not be permitted to engage in this course of conduct.
For all of the reasons stated above, all of Plaintiff’s claims
against EKU, the EKU College of Justice and Safety, and Kappeler
and Garrison in their official capacities are dismissed with
prejudice. All of Plaintiff’s claims against Defendant Kappeler in
his individual capacity are dismissed with prejudice. Plaintiff’s
claims against Defendant Garrison in her individual capacity are
dismissed with prejudice, save for her claims under 42 U.S.C. §
1983 alleging a violation of her right to freedom of speech under
Fourteenth Amendment of the United States Constitution.
Accordingly, IT IS ORDERED:
(1) that Defendants’ Motion to Dismiss [DE 17] is GRANTED.
Pursuant to Fed. R. Civ. P. 16 and 26, IT IS FURTHER ORDERED
(2) that within twenty-one (21) days from the date of service
of this Order, the parties, by counsel, shall meet, either in
person or by telephone, to discuss the nature and basis of their
claims and defenses and the possibilities for a prompt settlement
or resolution of the case, to make or arrange for the disclosures
required by Fed. R. Civ. P. 26(a)(1), as amended December 1, 2010,
and to develop a proposed discovery plan. See Fed. R. Civ. P.
26(f), as amended December 1, 2015.
that within ten (10) days after the meeting the parties
shall file a joint status report containing:
the discovery plan. In formulating their plan, the
parties should consider the concerns described in Fed. R. Civ. P.
26(b)(1), as amended December 1, 2015, as well as the Court’s
belief that discovery should last between three and five months.
the parties' estimate of the time necessary to file
the parties' estimate as to the probable length of
the dates mutually convenient for trial.
the parties' decision as to whether the action may
be referred to a United States magistrate judge for trial pursuant
to 28 U.S.C. § 636(c).
resolution of the case may be aided by mediation or other special
procedures as authorized by statute or local rule.
Each party is directed to advise the Court at the time of the
subsidiaries, affiliates, members and/or partners with which it is
This the 31st day of March, 2017.
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