Dryden v. Barefield

Filing 2

ORDER that 1 Motion/Application for Leave to Proceed in forma pauperis is GRANTED. The Clerk shall file the complaint. Plaintiff's Complaint is DISMISSED, with leave to amend. Plaintiff shall have until 6/27/14 to file his amended complaint. Signed by Magistrate Judge Peggy A. Leen on 5/27/14. (Copies have been distributed pursuant to the NEF; blank 1983 civil rights complaint form w/instructions and one copy of the original complaint to plaintiff - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JEFFREY L. DRYDEN,

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Plaintiff,
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vs.
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ANDREA E. BAREFIELD,
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Defendant.
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__________________________________________)

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Case No. 2:13-cv-01896-RCJ-PAL
ORDER
(IFP App - Dkt #1)

Plaintiff Jeffrey L. Dryden is proceeding in this action pro se, has requested authority pursuant

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to 42 U.S.C. § 1983 to proceed in forma pauperis, and submitted a complaint. See Application to

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Proceed In Forma Pauperis (Dkt. #1).

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I.

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In Forma Pauperis Application
Dryden has submitted the affidavit required by § 1915(a) showing an inability to prepay fees and

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costs or give security for them. Accordingly, the request to proceed in forma pauperis will be granted

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pursuant to 28 U.S.C. § 1915(a). The court will now review Dryden’s complaint.

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II.

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Screening the Complaint
Upon granting a request to proceed in forma pauperis, a court must additionally screen a

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complaint pursuant to § 1915(a). Federal courts are given the authority dismiss a case if the action is

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legally “frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). When a

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court dismisses a complaint under § 1915(a), the plaintiff should be given leave to amend the complaint

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with directions as to curing its deficiencies, unless it is clear from the face of the complaint that the

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deficiencies could not be cured by amendment. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.

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1995).

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Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint for

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failure to state a claim upon which relief can be granted. Review under Rule 12(b)(6) is essentially a

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ruling on a question of law. North Star Intern. v. Arizona Corp. Comm’n, 720 F.2d 578, 580 (9th Cir.

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1983). In considering whether the plaintiff has stated a claim upon which relief can be granted, all

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material allegations in the complaint are accepted as true and are to be construed in the light most

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favorable to the plaintiff. Russell v. Landrieu, 621 F.2d 1037, 1039 (9th Cir. 1980). Allegations of a

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pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Haines

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v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).

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Dryden’s Complaint attempts to state claims under 42 U.S.C. § 1983 against Defendant Andrea

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E. Barefield. To state a claim under section 1983, a plaintiff must allege that a right secured by the

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Constitution has been violated, and the deprivation was committed by a person acting under color of

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state law. West v. Atkins, 487 U.S. 42 (1988) (citation omitted). States and state officers sued in their

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official capacity are not “persons” for the purposes of a section 1983 action, and generally, they may not

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be sued under the statute. Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989). Section 1983

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does allow suits against state officers in their individual capacities. Hafer v. Melo, 502 U.S. 21, 26

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(1991).

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A.

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Dryden’s Complaint alleges that he is a resident of California who moved to Nevada to attend

Factual Allegations.

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the University of Nevada Las Vegas (“UNLV”) as a graduate student. Dryden is a graduate of the

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University of California Davis School of Law and has passed the California and Nevada Bar

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Examinations and Multistate Professional Responsibility Exam. He alleges Defendant Andrea E.

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Barefield is the Coordinator of the Office for Student Conduct at UNLV. Dryden alleges Barefield

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promulgated certain rules at UNLV and told the Nevada State Bar that Dryden was expelled from

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UNLV for violating these rules. Additionally, Dryden alleges that the Nevada State Bar denied him

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admission to practice law in Nevada because of Barefield’s statements that he was expelled for

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violating vague and overbroad laws or rules.

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Dryden alleges that Barefield attempted to impose disciplinary sanctions, including compulsory

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psychological treatment for impulse control, against him for failing to pay parking fines or parking fine
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late fees to UNLV’s Department of Parking and Transportation Services (the “Parking Department”).

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Dryden requested a hearing pursuant to the UNLV Student Code of Conduct (the “Code”). Dryden

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alleges Barefield made a verbal presentation of her allegations in an ex parte meeting with the hearing

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committee in violation of the Code. Dryden asserts Barefield failed to introduce any evidence on the

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issue of whether Dryden owed money to the Parking Department to the hearing committee. However,

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Dryden also alleges the hearing committee ruled unanimously in his favor, finding he did not owe any

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money to the Parking Department or require psychological treatment.

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Dryden alleges that the Code permits a designee of the Vice President of Student Affairs to
impose greater sanctions than recommended by the hearing committee. Dryden asserts that Barefield,

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acting as such a designee, reversed the findings of the hearing committee and ruled that Dryden did owe

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money to the Parking Department and had to undergo psychological treatment. Dryden timely appealed

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this decision, but he alleges “on information and belief” that Barefield denied his appeal without

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submitting it to the appeals panel. Dryden asserts he was never provided a copy of the appeals panel’s

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decision. As a result, he was expelled or constructively expelled by Barefield without notice, hearing,

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or appeal.

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Additionally, Dryden alleges he was accused of committing a crime by a UNLV police officer,

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who attempted to question him. Dryden alleges he asserted his Miranda rights and refused to answer

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the officer’s questions. Dryden contends the officer asked Barefield to discipline Dryden for asserting

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his Miranda rights. Barefield allegedly expelled Dryden for violation of UNLV’s Code provision that

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requires students to comply with reasonable directions of university officials or law enforcement.

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B.

Dryden’s Claims.
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Claims Against Barefield in Her Official Capacity.
a.

Claims for Damages.

Dryden may be attempting to state claims against Barefield in her official capacity. A suit

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against a state official in her official capacity is not a suit against the official, but is instead a suit

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against the official’s office. See Will, 491 U.S. at 71. As discussed below, a suit against Barefield in

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her official capacity is a suit against the state of Nevada, and under the Eleventh Amendment, the state

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is immune from suit. The Eleventh Amendment bars suits “in law or equity, commenced or prosecuted
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against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign

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State.” U.S. Const. amend. XI. In the absence of a waiver by the state or a valid congressional

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override, agencies of the state are immune for private damage actions or suits for injunctive relief

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brought in federal court. Dittman v. California, 191 F.3d 1020, 1025 (9th Cir.1999). Nevada has

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explicitly refused to waive its immunity to suit under the Eleventh Amendment. See O'Connor v.

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Nevada, 686 F.2d 749, 750 (9th Cir.1982) (citing NRS 41.031(3)).

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Courts in this district have clearly established that the state university system, including UNLV,

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operates as a branch of the Nevada state government and is a state instrumentality or agency within the

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meaning of the Eleventh Amendment. See, e.g., Disabled Rights Action Comm. v. Las Vegas Events,

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Inc., 375 F.3d 861, 883. n. 7 (9th Cir. 2004) (noting Nevada System of Higher Education is immune

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from suit under the Eleventh Amendment); Johnson v. Univ. of Nev., 596 F. Supp. 175, 178 (D.

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Nev.1984) (finding the University of Nevada and its Board of Regents were state entities entitled to

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immunity under the Eleventh Amendment); Simonian v. University and Community College System 128

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P.3d 1057, 1061–62 (Nev. 2006) (where Nevada Supreme Court held that the University and

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Community College System is a state entity for purposes of the Federal Claims Act).

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Eleventh Amendment immunity extends to officials sued in their official capacities. A suit

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against a state official in his or her official capacity is not a suit against the official, but rather, is a suit

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against the official’s office. See Will, 491 U.S. at 71. Accordingly, Barefield is immune from Dryden’s

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claim for monetary damages in her official capacity under the Eleventh Amendment.

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b.

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Claim for Injunctive Relief.

To the extent Dryden is seeking injunctive relief, the Eleventh Amendment does not bar that

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claim. See Gamage v. Nevada ex rel. Board of Regents of Nevada Sys. of Higher Ed., (Jan 21, 2014)

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(citing Ex Parte Young, 209 U.S. 123 (1908)). In Ex Parte Young, the United States Supreme Court

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held that the Eleventh Amendment immunity doctrine does not bar suits brought in federal court against

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state officials in their official capacities for prospective injunctive relief to prevent future violations of

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federal law. See Puerto Rico Aqueduct & Sewer Auth’y v. Metcalf & Eddy, Inc., 506 U.S. 139, 146

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(1993).

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Dryden’s complaint contains a prayer for relief which requests an injunction compelling

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Barefield to reinstate Dryden as a student in good standing at UNLV, purging all “allegations of fault”

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from his student file, requiring Barefield to inform the State Bar of Nevada that her allegations against

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Dryden were false, and deleting “any provision that is unconstitutional” from UNLV’s Code. As set

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forth in this Order, Dryden has not stated any federal claim entitling him to relief this case.

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Accordingly, he is not entitled to injunctive relief.

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Additionally, to the extent Dryden is seeking a preliminary/permanent injunction, he must allege

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(a) that he will suffer irreparable injury if the injunction is not granted; (b) he will likely prevail on the

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merits; (c) in balancing the equities, Barefield will not be harmed by the injunction more than Dryden is

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helped by it; and (d) granting the injunction is in the public interest. See Stanley v. University of S.

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Cal., 13 F.3d 1313, 1319 (9th Cir. 1994). Alternatively, Dryden must demonstrate either a combination

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of probable success on the merits and the possibility of irreparable injury or that serious questions are

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raised, and the balance of hardships tips sharply in Dryden’s favor. Id. Concerning the balance of

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hardships, even if the balance tips in favor of the moving party, a fair chance of success on the merits

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must nevertheless be shown. Id. The two alternative tests “represent two points on a sliding scale in

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which the required degree of irreparable harm increases as the probability of success decreases. They

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are not separate tests but rather outer reaches of a single continuum.” Baby Tam Co. v. City of Las

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Vegas, 154 F.3d 1097, 1100 (9th Cir.1998). Here, Dryden has not he made requisite showing under

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either alternative test to justify the entry of an injunction.

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2.

Claims Against Barefield in Her Individual Capacity.
a.

Due Process Claims.

Dryden alleges he was denied procedural due process because he was expelled without notice,

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hearing, or appeal. In order to state a procedural due process claim, Dryden must allege he was

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deprived of a protected interest, without due process of law. See Logan v. Zimmerman Brush Co., 455

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U.S. 422, 428, (1982). To be entitled to the procedural protections of the Fourteenth Amendment,

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Plaintiff must demonstrate that his dismissal from the school deprived him of either a “liberty” or a

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“property” interest. See Univ. of Mo. v. Horowitz, 435 U.S. 78, 82 (1978). Plaintiff has a protected

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property interest in continued enrollment at a public institution of higher learning. Id. When a student
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is suspended from a public school or university for disciplinary reasons, due process requires "that the

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student be given oral or written notice of the charges against him and, if he denies them, an explanation

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of the evidence the authorities have and an opportunity to present his side of the story.” Goss v. Lopez,

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419 U.S. 565, 581 (1975). Dryden acknowledges in his complaint that he was given notice and an

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opportunity to be heard, and that he filed a timely appeal. Although it does not appear the Ninth Circuit

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has ruled on the issue, the weight of the authority is that Barefield did not violate Dryden’s due process

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rights if, accepting the allegations in the complaint as true, Barefield failed to comply with UNLV’s

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Code’s procedures. See T.T. v. Bellevue School Dist., 2009 WL 816961 at *6 (Mar. 24, 2009) (citing

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Goodrich v. Newport News Sch. Bd., 743 F.2d 225, 227 (4th Cir. 1984); McDarby v. Dinkins, 907 F.2d

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1334, 1337 (2d Cir. 1990); Eguia v. Tompkins, 756 F.2d 1130, 1137-38 n.11 (5th Cir. 1985); Atencio v.

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Bd. of Educ., 658 F.2d 774 (10th Cir. 1981); Bates v. Sponberg, 547 F.2d 325, 329-30 (6th Cir. 1976)),

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rev’d in part on other grounds by 376 Fed. Appx 769 (9th Cir. Apr. 19, 2010). Moreover, section 1983

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does not create a right to re-litigate evidentiary questions arising in school disciplinary proceedings or

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the proper construction of school regulations in federal court. See Board of Education v. McCluskey,

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458 U.S. 966, 970 (1982) (citing Wood v. Strickland, 420 U.S. 308, 326 (1975), overruled on other

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grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982)). In addition, this court is not permitted to

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construe UNLV’s regulations. The Supreme Court has clearly admonished the lower courts that “[i]t is

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not the role of the federal courts to set aside decisions of school administrators which the court may

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view as lacking a basis in wisdom or compassion.” Wood, 420 U.S. at 326. The Court further

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recognized that the system of public education in the United States “relies necessarily upon the

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discretion and judgment of school administrators.” Id. Dryden’s procedural due process claim will be

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dismissed, with leave to amend.

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b.

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Dryden’s Equal Protection Claim.

Dryden alleges he was treated differently by Barefield because he was a resident of California

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who recently moved to Nevada. The purpose of the equal protection clause of the Fourteenth

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Amendment is to prevent intentional and arbitrary discrimination. See Engquist v. Oregon Dept. of Ag.,

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553 U.S. 591, 611 (2008) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Plaintiff

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has not alleged that he was discriminated against based on his membership in any protected class (either
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gender, national origin, or religion), nor has he asserted that he was intentionally treated differently

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from others similarly situated (the so-called “class of one” equal protection claim). Therefore, Dryden

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has not stated an equal protection claim, and the court will dismiss this claim with leave to amend.

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c.

Dryden’s Overbreadth/Vagueness Claims.

Dryden challenges certain provisions of UNLV’s Code as both unconstitutionally vague and

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overbroad, as written and as applied. The two provisions of the Code Dryden claims are overbroad and

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vague criminalize: (a) any act or actions, committed by a student within the authority and jurisdiction of

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the Code, that is contrary to federal, state, local law, or University policy or regulation; and (b) failing

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to comply with reasonable directions of University officials (i.e., faculty, staff, graduate assistants,

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student employees) or law enforcement officers who have identified themselves as such and are

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performing their duties. Complaint at ¶¶ 31, 32. Dryden alleges that he was stopped by an unnamed

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university police officer who accused him of committing a crime. He asserted his Miranda rights,

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requested an attorney, and refused to answer the police officer’s questions. Dryden alleges that the

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police officer asked Barefield to discipline him. Dryden alleges Barefield expelled him without telling

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him what federal, state, or local law or university policy or regulation he violated.

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As an initial matter, Barefield is not the proper party to sue for the alleged unconstitutionality of

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these Code provisions. Dryden does not allege, nor is it plausible to believe, that Barefield–the

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Coordinaror of the Office for Student Conduct–promulgated these rules and regulations. Dryden’s

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conclusory and speculative allegations that Barefield is somehow responsible for these provisions of the

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Code do not state a claim upon which relief can be granted.

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i.

Dryden’s Facial Challenges.

With respect to Dryden’s facial overbreadth challenge to the two Code provisions, it is well-

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established that a person to whom a statute may be constitutionally-applied cannot challenge that statute

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because it could conceivably be applied unconstitutionally to others in situations not before the court.

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See New York v. Ferber, 458 U.S. 747, 767 (1982). This rule is based on two cardinal principles of

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constitutional law. Ferber, 458 U.S. at 768. First, constitutional rights are personal in nature. Id.

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Second, Article III of the Constitution limits the jurisdiction of the federal courts to actual cases and

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controversies. Id. This means that the court must not: (a) anticipate a question of constitutional law in
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advance of the necessity of deciding it; or (b) formulate a rule of constitutional law broader than

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required by the precise facts to which the rule will be applied. Id. at n.20.
Officers conducting a Terry stop are permitted to ask questions to enable law enforcement to

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identify a suspect, and the state may lawfully prosecute a suspect who refuses to answer those

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questions. Hiibel v. Sixth Judicial Dist. Ct. of Nev., Humboldt Cty., 542 U.S. 177, 187 (2004). Dryden

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does not allege what questions he refused to answer, but to the extent that he failed to answer questions

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concerning his identity, Plaintiff cannot state a claim. The school could discipline him under the Code

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provisions Dryden cites because the Supreme Court has found Nevada’s stop and identify law

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constitutional. Id.; NRS 171.123. In addition, Dryden does not allege he was subject to custodial

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interrogation by the unnamed police officer, and Miranda only applies to custodial interrogations. See

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generally Miranda v. Arizona, 348 U.S. 436 (1966). Finally, Dryden admits he did not answer the

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unnamed police officer’s questions, and the Code provisions proscribe failing to comply with law

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enforcement officers who are performing their duties. Accordingly, Dryden’s facial challenges to the

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Code provisions will be dismissed with leave to amend.

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With respect to Dryden’s facial vagueness challenge, the due process clause of the Fourteenth

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Amendment requires that a criminal statute provide the kind of notice that will enable ordinary people

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to understand what the law prohibits and does not authorize or encourage “seriously discriminatory

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enforcement.” See United States v. Williams, 553 U.S. 285, 304 (2008); City of Chicago v. Morales,

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527 U.S. 41, 56 (1999) (internal citation omitted). However, a person who has engaged in some

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conduct which is clearly proscribed cannot complain of the vagueness of the law as applied to others.

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See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 445 U.S. 489, 495 (1982). Dryden’s

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allegations foreclose his facial vagueness challenge. As set forth above, Dryden admits he did not

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answer the unnamed police officer’s questions, and the Code provisions proscribe failing to comply

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with law enforcement officers who are performing their duties.

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Dryden’s facial overbreadth and vagueness challenges will, therefore, be dismissed with leave to

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amend.

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ii.

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Dryden’s As-Applied Challenges.

Dryden’s as-applied challenges do not state a claim upon which relief can be granted. He has

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not alleged facts to support these claims. His speculative allegations that he was expelled or

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constructively expelled by Barefield for failing to answer an unnamed police officer’s questions are

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inadequate to state a constitutional claim.

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Furthermore, Dryden has not stated when any of this alleged conduct occurred. Although

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section 1983 does not provide a specific statute of limitation, 42 U.S.C. § 1988 provides that where the

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federal law does not provide a statute of limitations, state law shall apply. The Supreme Court has held

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that in the interest of national uniformity and predictability, all section 1983 claims shall be treated as

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tort claims for the recovery of personal injuries. See Wilson v. Garcia, 471 U.S. 261 (1985); Owens v.

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Okure, 488 U.S. 235, 249-50 (1989). In Nevada, the personal injury statute of limitations is two years.

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See N.R.S. 11.190(4)(e). For all of these reasons, Plaintiff’s as-applied overbreadth and vagueness

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claims will be dismissed with leave to amend.

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e.

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Dryden’s State Law Claim.

Dryden also alleges a claim for invasion of privacy. He asserts that Barefield asked UNLV

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police to conduct a background check of Dryden, and “on information and belief,” the police turned

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over Plaintiff’s military service records and FBI criminal history summaries, medical records protected

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by HIPAA,1 and academic records protected by FERPA.2 In addition, Dryden alleges he was surveilled

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by UNLV police on and off campus. Dryden’s invasion of privacy claim arises under Nevada state

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law.3 Under the doctrine of supplemental jurisdiction, a federal court may hear state claims that are part

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HIPAA, the Heath Insurance Portability and Accountability Act, 29 U.S.C. § 1181 et seq., 42
U.S.C. §§ 300gg, and 1320d et seq., does not create an implied private right of action to sue under 42
U.S.C. § 1983. See Cunningham-Dirks v. Nevada, No. 2:12-cv-00590-PMP, 2013 WL 77470 at *5 (D.
Nev. Jan. 3, 2013) (citing Seaton v. Mayberg, 610 F.3d 530, 533 (9th Cir. 2010)).

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FERPA, the Family Educational Rights and Privacy Act, codified at 20 U.S.C. § 1232g, does not
create a private right of action to sue under 42 U.S.C. § 1983. See Desyllas v. Bernstein, 351 F.3d 934,
940 n.2 (9th Cir. 2003) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 276 (2002)).
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In Nevada, the tort is referred to as the tort of intrusion.
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of the "same case or controversy" as a claim arising under federal law. 28 U.S.C. § 1367(a). However,

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the court may decline to exercise supplemental jurisdiction over state law claims if the court determines

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that federal claims warrant dismissal. 28 U.S.C. §1367(c)(3). The exercise of supplemental jurisdiction

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is entirely within the court's discretion. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 716,

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(1966). Here, the court has found Dryden has not stated a federal claim on which relief can be granted.

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Nevertheless, the court will screen Dryden’s invasion of privacy claim.

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In order to state a claim under Nevada law for the tort of intrusion, Dryden must allege (a) an

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intentional intrusion (physical or otherwise); (b) on his solitude or seclusion; (c) that would be highly

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offensive to a reasonable person. See People for the Ethical Treatment of Animals v. Bobby Berosini,

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Ltd., 895 P.2d 1269, 1279 (Nev. 1995), overruled in part on other grounds by City of Las Vegas

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Downtown Redevelopment Agency v. Hecht, 940 P.2d 134 (Nev. 1997). In order to have an interest in

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seclusion or solitude that the law will protect, a plaintiff must show that he had an actual expectation of

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seclusion or solitude that was objectively reasonable. See M&R Inv. Co., 748 P.2d 488, 493 (Nev.

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1987). Here, Dryden has not stated a claim for intrusion against Barefield. Dryden alleges it was “the

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police” who surveilled him and the police who disclosed his private information. This claim will,

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therefore, be dismissed with leave to amend.

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Dryden is informed that the court cannot refer to a prior pleading in order to make his amended

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complaint complete. Local Rule 15-1 requires that an amended complaint be complete in itself without

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reference to any prior pleading. This is because, as a general rule, an amended complaint supersedes the

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original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Once plaintiff files an amended

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complaint, the original pleading no longer serves any function in the case. Therefore, in an amended

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complaint, as in an original complaint, each claim and the involvement of each defendant must be

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sufficiently alleged.

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Based on the foregoing,

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IT IS ORDERED that:

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1.

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Plaintiff’s request to proceed in forma pauperis is GRANTED. Plaintiff shall not
be required to pay the filing fee of four hundred dollars ($400.00).

2.

Plaintiff is permitted to maintain this action to conclusion without the necessity of
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prepayment of any additional fees or costs or the giving of a security therefor. This

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Order granting leave to proceed in forma pauperis shall not extend to the issuance of

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subpoenas at government expense.

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3.

The Clerk of the Court shall file the Complaint.

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4.

Plaintiff’s Complaint is DISMISSED, with leave to file an amended complaint. Plaintiff

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shall have until June 27, 2014, to file his amended complaint, if he believes he can

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correct the noted deficiencies. The amended complaint must be a complete document in

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and of itself, and will supersede the original complaint in its entirety. Any allegations,

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parties, or requests for relief from prior papers that are not carried forward in the

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amended complaint will no longer be before the court.
5.

Plaintiff shall clearly title the amended complaint as such by placing the words “FIRST

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AMENDED” immediately above “Civil Rights Complaint Pursuant to 42 U.S.C.

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§ 1983” on page 1 in the caption, and plaintiff shall place the case number, 2:13-cv-

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01896-RCJ-PAL, above the words “FIRST AMENDED”in the space for “Case No.”

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6.

Plaintiff is expressly cautioned that if he does not timely file an amended complaint in

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compliance with this order, it will be recommended that the district judge dismiss this

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action with prejudice and close this case.

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7.

The Clerk shall send to plaintiff a blank section 1983 civil rights complaint form with
instructions along with one copy of the original complaint.

Dated this 27th day of May, 2014.

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_________________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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