McBrearty v. Kappeler et al

Filing 24

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
JENEAN MCBREARTY,

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)
)
)
)
)
)
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Plaintiff,
v.
DR. VICTOR KAPPELER, et al.,
Defendants.
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Civil No. 5:16-cv-121-JMH

MEMORANDUM OPINION AND ORDER

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***

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.
I.
Plaintiff was a student in an online class taught by Dr.
Carole Garrison at Eastern Kentucky University (“EKU”). Class
discussion

occurred

online

in

a

message-board

system

called

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
nothing

of

the

results

of

that

complaint,

notwithstanding

inquiries that she made to Dean Victor Kappeler, and has heard
nothing as to the results of any investigation made in response to
her

subsequent

complaints

to

the

Department

of

Education

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
Garrison,

in

both

their

official

and

individual

capacities,

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.
II.
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
reasonable

inference

that

the

defendant

is

liable

for

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).
III.
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)
(making

the

Commonwealth

necessary
in

holding

upholding

that

curfew

EKU

is

an

regulations

agency
that

of

were

the
only

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,
1

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.
IV.
Next, the Court dismisses Plaintiff’s bare bones claim for
age

discrimination

against

Kappeler

and

Garrison,

in

their

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
contract

or

offer

to

contract.”

See

University

Handbook

for

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
it

somehow

provides

discrimination

claim

the
or

basis

a

of

either

contractual

a

claim

general

premised

on

age
age

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.”
As

with

handbooks

constitute

a

in

the

contract,...

employment
the

context,

handbook

must

“[i]n

order

contain

to

specific

language showing [EKU's] intent to be bound by the handbook's
provisions.”) (internal citations omitted).
V.
Plaintiff’s claims for violation of FERPA against Kappeler
and Garrison in their individual capacities are also dismissed, as
FERPA

grants

aggregate

not

individual

rights

and

offers

no

protected interests to the individual student, like Plaintiff,
which can be enforced by this Court. Gonzaga Univ. v. Doe, 536

2

“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
http://studentaffairs.eku.edu/sites/studentaffairs.eku.edu/files/files/Studen
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,
focus,

and

they

Education's

serve

primarily

distribution

of

to

direct

public

funds

the
to

Secretary

of

educational

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
amendment

will

only

apply

to

governmental

conduct

that

can

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
dismissed

because

the

disclosure

of

a

student's

confidential

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’”).

VI.
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
against

Keppler

and

Garrison

in

their

individual

capacities.

“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,
Plaintiff

complains

publicity

into

that

Defendant

Plaintiff’s

private

Garrison
life,

made

unreasonable

presumably

when

she

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
be dismissed.
VII.
Only Plaintiff’s claims under 42 U.S.C. § 1983 alleging a
violation of her right to freedom of speech under the First
Amendment

and

her

right

to

due

process

under

the

Fourteenth

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
rely

on

simple

negligence.”

Id.

Plaintiff

avers

that,

while

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.
VIII.
Finally,

Plaintiff

cannot

defeat

Defendants’

Motion

to

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.
IX.
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
the

First

Amendment

and

her

right

to

due

process

under

the

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
as follows:
(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.
(3)

that within ten (10) days after the meeting the parties

shall file a joint status report containing:
(a)

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.

(b)

the parties' estimate of the time necessary to file

pretrial motions.
(c)

the parties' estimate as to the probable length of

(d)

the dates mutually convenient for trial.

(e)

the parties' decision as to whether the action may

trial.

be referred to a United States magistrate judge for trial pursuant
to 28 U.S.C. § 636(c).
(f)

the

parties’

determination

as

to

whether

the

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
submission

of

the

joint

report

of

all

parent

corporations,

subsidiaries, affiliates, members and/or partners with which it is
associated.
This the 31st day of March, 2017.