Wynar v. Douglas County School District, et al

Filing 36

ORDERED that Ds' # 26 Motion for summary judgment is GRANTED. The clerk shall enter judgment accordingly. Signed by Judge Larry R. Hicks on 8/10/2011. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MARK WYNAR, as guardian of L. W., and
L. W., a minor,

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Plaintiffs,
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v.
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DOUGLAS COUNTY SCHOOL DISTRICT, )
et al.,
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Defendants.
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3:09-cv-0626-LRH-VPC
ORDER

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Before the court is defendants Douglas County School District (“DCSD”); Carol Lark

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(“Lark”); Nancy Bryant (“Bryant”); Marty Swisher (“Swisher”); David Pyle (“Pyle”); Keith Roman

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(“Roman”); Sharla Hales (“Hales”); and Cynthia Trigg’s (“Trigg”) (collectively “defendants”)

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motion for summary judgment. Doc. #26.1 Minor plaintiff L. W. (“LW”) filed an opposition

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(Doc. #29) to which defendants replied (Doc. #34).

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I.

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Facts and Background
In 2008, plaintiff LW was a student enrolled at the Douglas County High School (“DHS”).

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On February 5, 2008, LW was instant messaging his friend J, another DHS student. During the

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conversation, LW threatened several female DHS students and discussed his purported “hit list.”

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Refers to the court’s docket number.

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LW’s messages included the following:
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“no im shooting her boobs off then paul (hell take a 50rd clip) then i reload and take
out everybody else on the list hmm paul should be last that way i can get more people
before they run away...”
“and ill probly only kill the people i hate?who hate me then a few random to get the
record.”
“that stupid kid from vtech. he didnt do shit and got a record. i bet i could get 50+
people and not one bullet would be wasted.”
“i wish then i could kill more people but i have to make due with what I got. 1 sks
& 150 rds, 1 semi-auto shot gun w/ sawed off barrle, 1 pistle.”

Doc. #26, Exhibit 3.

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Concerned about the content of the messages, J forwarded them to R, another DHS student,

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who suggested that the messages be brought to the attention of DHS administration. On February 7,

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2008, J and R turned the messages in to the school. LW was subsequently arrested and taken out of

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DHS pending an investigation.

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On March 6, 2008, LW was suspended from DHS for ten (10) school days. Shortly

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thereafter, on March 31, 2008, after an administrative hearing, LW was expelled from the school

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district for ninety (90) days.

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Subsequently, on October 27, 2009, LW filed a complaint against defendants alleging five

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causes of action: (1) procedural Due Process; (2) substantive Due Process; (3) First Amendment

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violation; (4) negligence; and (5) negligent infliction of emotional distress. Doc. #1. Thereafter,

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defendants filed the present motion for summary judgment on all of LW’s claims. Doc. #26.

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II.

Legal Standard

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Summary judgment is appropriate only when the pleadings, depositions, answers to

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interrogatories, affidavits or declarations, stipulations, admissions, answers to interrogatories, and

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other materials in the record show that “there is no genuine issue as to any material fact and the

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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In assessing a motion for

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summary judgment, the evidence, together with all inferences that can reasonably be drawn

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therefrom, must be read in the light most favorable to the party opposing the motion. Matsushita

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Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); County of Tuolumne v. Sonora

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Cmty. Hosp., 236 F.3d 1148, 1154 (9th Cir. 2001).
The moving party bears the initial burden of informing the court of the basis for its motion,

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along with evidence showing the absence of any genuine issue of material fact. Celotex Corp. v.

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Catrett, 477 U.S. 317, 323 (1986). On those issues for which it bears the burden of proof, the

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moving party must make a showing that is “sufficient for the court to hold that no reasonable trier

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of fact could find other than for the moving party.” Calderone v. United States, 799 F.2d 254, 259

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(6th Cir. 1986); see also Idema v. Dreamworks, Inc., 162 F. Supp. 2d 1129, 1141 (C.D. Cal. 2001).

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To successfully rebut a motion for summary judgment, the non-moving party must point to

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facts supported by the record which demonstrate a genuine issue of material fact. Reese v.

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Jefferson Sch. Dist. No. 14J, 208 F.3d 736 (9th Cir. 2000). A “material fact” is a fact “that might

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affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.

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242, 248 (1986). Where reasonable minds could differ on the material facts at issue, summary

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judgment is not appropriate. See v. Durang, 711 F.2d 141, 143 (9th Cir. 1983). A dispute

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regarding a material fact is considered genuine “if the evidence is such that a reasonable jury could

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return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248. The mere existence of a

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scintilla of evidence in support of the party’s position is insufficient to establish a genuine dispute;

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there must be evidence on which a jury could reasonably find for the party. See id. at 252.

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III.

Discussion

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A. Procedural Due Process

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Nevada law provides that a student shall not be suspended from school or expelled from the

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school district until the student has been given notice and an opportunity to be heard.

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NRS § 392.467(2).

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In his complaint, LW argues that defendants violated his procedural Due Process rights

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when they suspended him from DHS for ten days without a formal administrative hearing. See

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Doc. #1. Further, LW argues that defendants did not comply with DCSD’s own internal regulation,

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Administrative Regulation 529, which outlines certain procedures that should be followed prior to

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suspending a student for ten (10) days or less including telling the student the specific rules,

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policies, or procedures that the student violated and that there could be consequences for those

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violations including suspension, because Swisher and Pyle never specifically outlined the exact

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school policies he violated by sending messages to his friend. See Doc. #30, Exhibit 8,

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Administrative Regulation 529.

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In opposition, defendants contend that LW received appropriate notice and an opportunity
to be heard when individual defendants Marty Swisher (“Swisher”), DHS principal, and David Pyle
(“Pyle”), DHS vice-principal, visited LW at the detention center. See Doc. #26.
The court has reviewed the documents and pleading on file in this matter and finds that LW

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received appropriate due process prior to his suspension. Initially, the court notes that defendants

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purported failure to comply with their own administrative procedure does not, itself, constitute a

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violation of constitutional due process. See Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984)

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(“Procedural requirements ordinarily do not transform a unilateral expectation into a

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constitutionally protected property interest.”).

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Further, due process for school suspensions does not require a formal hearing. Bd. of

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Curators of Univ. of Missouri v. Horowitz, 435 U.S. at 86 (full cite). Rather, there must only be an

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“‘informal give-and-take’ between the student and the administrative body dismissing him that

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would, at least, give the student ‘the opportunity to characterize his conduct and put it in what he

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deems the proper context.’” Id. For any suspension up to ten (10) days, due process requires only

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

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explanation of the evidence the authorities have and an opportunity to present his side of the story.”

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Goss v. Lopez, 419 U.S. 565, 581 (1975).

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Here, viewing the evidence in the light most favorable to LW as the non-moving party, the
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court finds that LW was given notice of the charges against him and had an opportunity to tell his

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side of the story. At the meeting between LW and defendants Swisher and Pyle, LW (1) admitted to

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writing the statements; (2) was expressly advised of the purpose of defendants’ visit;2 (3) was

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advised that he had violated school policy in writing threatening messages;3 (4) was informed that

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additional discipline could be meted out, including suspension;4 (5) explained to Swisher and Pyle

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that he was just joking and had no intent to carry out the threats;5 and (6) wrote a written report

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outlining his side of the story.6 Therefore, the court finds that LW received the requisite due process

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for a ten (10) day school suspension because he had an informal give-and-take with defendants

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Swisher and Pyle, was informed of the violations of school and district policy in writing threatening

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messages, and was provided an opportunity to explain his side of the story and write a written

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statement. Accordingly, the court shall grant defendants’ motion as to this issue.

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B. Substantive Due Process

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LW argues that his substantive due process rights were violated when he was expelled from

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the school district under the habitual discipline statute, NRS § 392.4655. Specifically, LW argues

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that the school district misinterpreted the statute in order to expel him because it is undisputed that

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he did not have any prior disciplinary problems and thus, DCSD could not have found that he was a

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habitual disciplinary problem under the statute.

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NRS § 392.4655(1) provides that:

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Except as otherwise provided in this section, a principal of a school shall deem a pupil
enrolled in the school a habitual disciplinary problem if the school has written evidence
which documents that in 1 school year:

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Doc. #26, Exhibit 1, LW Depo., p.21:6-7; Doc. #26, Exhibit 4, Swisher Depo., p34:16-18.

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Doc. #26, Exhibit 5, Pyle Depo., p.17:9-19.

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Id.

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Doc. #26, Exhibit 1, LW Depo., p.22:6-9.

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Id.; Doc. #26, Exhibit 11, LW’s written statement.

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(a) the pupil has threatened or extorted, or attempted to threaten or extort, another
pupil or a teacher or other personnel employed by the school;
(b) the pupil has been suspended for initiating at least two fights on school property,
at an activity sponsored by a public school, on a school bus or, if the fight occurs within
1 hour of the beginning or end of a school day, on the pupil’s way to or from school; or
(c) the pupil had a record of five suspensions from school for any reason.

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The court has reviewed the documents and pleadings on file in this matter and finds that

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defendants did not misinterpret the habitual discipline statute. Under the plain language of the

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statute, a student shall be deemed a “habitual disciplinary problem” if the school has written

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evidence that the student had threatened another student, teacher, or school employee, even if that

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student had no prior disciplinary problems. NRS § 392.4655(1)(a). The statute does not require

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multiple threats before a student is deemed a habitual disciplinary problem. Id. Further, the fact that

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other kinds of conduct require multiple acts (two fights or five suspensions) shows the legislature’s

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intent to hold a single act of threatening conduct an expellable offense. Therefore, the court finds

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that defendants did not violate LW’s substantive due process rights by expelling him for a single

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instance of threatening conduct. Accordingly, the court shall grant defendants’ motion as to this

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issue.

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C. First Amendment

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LW argues that defendants violated his First Amendment rights when they disciplined him

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for his off-campus speech. See Doc. #1.
“The Supreme Court has held that the First Amendment guarantees only limited protection

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for student speech in the school context.” Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 371 (9th

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Cir. 1996) (citing Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969)). A school may

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discipline or suppress speech if there are sufficient facts for school authorities to reasonably

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forecast the substantial disruption of, or material interference with, school activities. Lavine v.

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Blain Sch. Dist., 257 F.3d 981, 989 (9th Cir. 2001) (citing Tinker, 393 U.S. at 514); see also, J.C. v.

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Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d 1094, 1103 (C.D. Cal. 2010) (holding that speech

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which causes or is foreseeably likely to cause a substantial disruption of school activities can be

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regulated and disciplined by the school). A school’s regulatory and disciplinary power may be

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exercised regardless of whether the speech occurred on or off campus. Poway Unified Sch. Dist., 90

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F.3d at 371; Beverly Hills Unified Sch. Dist., 711 F. Supp. 2d at 1103 (“[T]he majority of courts

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will apply Tinker where speech originating off campus is brought to school or to the attention of

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school authorities, whether by the author himself or some other means.”).

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In determining whether school officials had sufficient facts to reasonably forecast

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substantial disruption, “alleged threats should be considered in light of their entire factual context,

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including the surrounding of the events and the reaction of the listeners.” Poway Unified Sch. Dist.,

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90 F.3d at 371. Further, disruption does not have to actually occur before a school regulates or

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disciplines speech so long as there exists facts “which might reasonably lead school officials to

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forecast substantial disruption.” Blain Sch. Dist., 257 F.3d at 989. Where a student’s speech is

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violent or threatening to members of the school, a school can reasonably portend substantial

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disruption. Id. at 1112; see also Poway Unified Sch. Dist., 90 F.3d at 372 (“In light of the violence

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prevalent in schools today, school officials are justified in taking very seriously student threats

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against faculty or other students.”).

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Viewing the evidence in the light most favorable to LW as the non-moving party, the court

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finds that defendants had a reasonable basis to forecast a material disruption to school activities. In

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his messages, LW invoked the image of the Virginia Tech massacre. Doc. #26, Exhibit 3. He stated

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that he had access to guns and ammunition. Id. He wrote about getting “the record” for school

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shootings and made specific references to girls and the school by name. Id. Further, he had a

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specific date in mind for carrying out his threats, April 20th, the anniversary of the Columbine

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massacre. Even assuming, as the court must for the present motion, that LW was joking when he

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made the statements and had no intent to carry out the conduct he described, DHS school

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administration still had a reasonable basis to forecast a substantial disruption to school activities

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upon receiving the statements because there is no inference that can be drawn solely from his

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statements that he was joking or had no intent to carry out the threats. Therefore, based on the

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record before the court, the court finds that defendants had a reasonable basis to forecast a

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substantial disruption to school activities and are thereby entitled to summary judgment on LW’s

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First Amendment claim. Accordingly, the court shall grant defendants’ motion as to this issue.

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D. Negligence and Negligent Infliction of Emotional Distress

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In their motion, defendants argue that there is no evidence supporting LW’s claims for

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negligence or negligent infliction of emotional distress. See Doc. #26. LW does not oppose

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defendants’ motion for summary judgment on these issues and effectively concedes that

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defendants’ motion is appropriate. See LR 7-2(d) (stating that the failure of an opposing party to

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file points and authorities in response to any motion shall constitute a consent to the granting of that

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motion). Therefore, the court shall grant defendants’ motion as to these issues.

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IT IS THEREFORE ORDERED that defendants’ motion for summary judgment (Doc. #26)
is GRANTED. The clerk of court shall enter judgment accordingly.

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IT IS SO ORDERED.

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DATED this 10th day of August, 2011.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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