Englehart v. State of Oklahoma
Filing
42
OPINION AND ORDER by Judge John E Dowdell dismissing plaintiff's claims without prejudice. ; dismissing/terminating case (terminates case) ; striking/terminating deadline(s)/Hearing(s); finding as moot 32 Motion for Summary Judgment; finding as moot 17 Motion for Temporary Restraining Order (Re: 2 Complaint ) (SAS, Chambers)
UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
MONICA L. ENGLEHART,
Plaintiff,
v.
BOARD OF REGENTS FOR THE
OKLAHOMA AGRICULTURAL AND
MECHANICAL COLLEGES
Defendant.
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Case No. 15-CV-138-JED-PJC
OPINION AND ORDER
This matter comes before the Court on two motions filed by the parties: plaintiff Monica
L. Englehart’s (“plaintiff” or “Englehart”) Motion and Opening Brief Seeking a Temporary
Restraining Order (“plaintiff’s Motion for TRO”) (Doc. 17), and defendant’s Brief in Support of
Motion for Summary Judgment (“defendant’s Motion for Summary Judgment”) (Doc. 33). Both
motions are opposed. (Docs. 21, 35).
I.
Background
Plaintiff filed this lawsuit pursuant to 42 U.S.C. section 1983 alleging that defendant
violated her liberty interests and deprived her of her rights to due process and equal protection
under the Fourteenth Amendment by dismissing her from the nursing program at the Langston
University School of Nursing and Health Professions (“Langston University”)1 after the Fall
2014 semester.
Plaintiff was accepted into Langston University’s nursing program for the Fall 2013
semester. (Doc. 17, Ex. 1, ¶ 5; Doc. 33, ¶ 8). She was on the Dean’s Honor Roll for both the
1
Defendant supervises, manages, and controls five academic institutions, including Langston
University.
Fall 2013 and Spring 2014 semesters. (Doc. 17, Ex. 1, ¶ 6). During the Fall 2014 semester,
plaintiff was enrolled in three courses, including the course that was her downfall—Nursing Care
of the Childrearing Family (the “Course”). (Doc. 21 at 2; Doc. 33, ¶ 9).
The Course syllabus contains the following policy (the “Policy”) on the academic
requirements a student must abide by in order to remain enrolled in the nursing program:
Any student who is unsuccessful (Defined as receiving a grade of
“W,” “AW,” “D,” or “F”) in a nursing course will not be allowed
to continue in the nursing program. The student must submit a
written request for readmission to the Admissions, Progression and
Graduation Committee.
(Doc. 21, Exh. 1, at 8; Doc. 33, Exh. B, at 8). The Langston University Student Handbook
(“Student Handbook”) also contains the Policy, which is worded slightly differently:
Any student who is unsuccessful in a nursing course will not be
allowed to continue in the nursing program. The student must
submit a written request for readmission to the Admissions,
Progression and Graduation Committee . . . . Unsuccessful is
defined as receiving a grade of “W,” “AW,” “D,” or “F.”
(Doc. 30, Exh. 2; Doc. 33, Exh. C, at 38). The Policy further states: “The faculty reserves the
right to limit a student’s unsuccessful attempts in nursing courses.” (Doc. 21, Exh. 1; Doc. 30,
Exh. 2; Doc. 33, Exh. B, at 8, Exh. C, at 38).
The Student Handbook contains the following guidelines related to a student’s
involuntary withdrawal from the nursing program: “[I]n cases where a student’s performance in
clinical experiences are so grossly inappropriate that the student cannot recover to demonstrate
competence and earn a passing grade[,] the student may be involuntarily withdrawn from . . . the
nursing program.” (Doc. 21, Exh. 6, at 3). Faculty members are required to provide the student
with notice “as soon as reasonably possible” after the occurrence of an incident that may lead to
that student’s withdrawal from the nursing program. (Id.). The student will usually “receive a
2
warning or be placed on probation prior to being withdrawn . . . from the nursing program.”
(Id.). The student will also “ordinarily be entitled to receive a hearing before the departmental
faculty prior to being withdrawn . . . from the nursing program.” (Id.). While the student may
employ the assistance of an attorney, the role of the attorney “shall be assistive in nature only,”
and the attorney may not “present any evidence nor speak on behalf of the student.” (Id. at 4).
Plaintiff received a letter grade of “D” in the Course, which is a failing grade according
to the Policy. (Doc. 21, Exh. 1, at 8; Doc. 30, Exh. 2; Doc. 33, ¶ 26). Plaintiff’s “D” grade
signified that she was unsuccessful in the Course and, as a result, was not allowed to continue in
the nursing program. (Doc. 33, ¶ 27.).
More specifically, plaintiff’s failing grade in the Course was a result of her performance
on two separate components of the Course: (1) the Final Care Plan, a required assignment, and
(2) the clinical component of the Course. First, plaintiff received a failing grade on the Final
Care Plan after the Course instructor determined that plaintiff had plagiarized an online
document (“the Document”) in her submission of the assignment. (Doc. 21 at 2). The instructor
was alerted specifically to plaintiff’s submission by the “Turnitin Nursing Program,” a program
that the instructor utilized to discern whether her students’ work was plagiarized. After being
notified that plaintiff’s submission was flagged for plagiarism, the instructor compared plaintiff’s
submission with the Document identified by the program, and determined that plaintiff had in
fact plagiarized the Document.
According to defendant, plaintiff’s assignment “contained
material that was inconsistent and nonsensical, in that it made references to the treatment of an
infant rather than the treatment of the twelve-year-old patient that plaintiff was assigned.” (Id. at
2-3). Plaintiff was ultimately assigned a score of thirty-seven percent (37%) on the Final Care
Plan. (Doc. 21 at 3).
3
Second, plaintiff failed to meet the minimum evaluation score for the clinical component
of the Course. The Course syllabus makes clear that a student must obtain a passing clinical
performance grade in order to pass the Course. (Doc. 21, Exh. 21). Plaintiff received a clinical
evaluation score of 1.94, but was required to receive a 2.0 in order to pass.2 (Doc. 21 at 3). Due
to plaintiff’s failing grades on both the Final Care Plan and the clinical component, plaintiff
received a “D” in the Course and was not allowed to continue in the nursing program. (Id. at 4).
Plaintiff appealed her grade in the Course and, per Langston University policy, was
granted a hearing before a committee comprised of faculty members, staff, and two nursing
students. (Doc. 21 at 4; Doc. 33, ¶¶ 29-32). Plaintiff’s attorney was present at the hearing but
was not allowed to participate in the hearing, in accordance with Langston University policy.
The hearing committee unanimously decided that plaintiff’s grade should stand and that she was
academically ineligible to continue in the nursing program. (Doc. 21 at 4l Doc. 33, ¶ 32). Soon
thereafter, plaintiff filed the instant lawsuit.
Plaintiff’s Motion for TRO requests that the Court “immediately grant Plaintiff
admission” to Langston University’s nursing program while the litigation is pending. (Doc. 17 at
1). Defendant’s Motion for Summary Judgment argues that summary judgment is appropriate on
all of plaintiff’s claims, in part because defendant is subject to Eleventh Amendment immunity.
(Doc. 33 at 11-13).
II.
Order of Issues
“The Eleventh Amendment is a jurisdictional bar that precludes unconsented suits in
federal court against a state and arms of the state.” Wagoner Cty. Rural Water Dist. No. 2 v.
2
A student’s performance on the Final Care Plan is used to assess his or her performance in the
clinical performance of the Course. (Doc. 21 at 3). Hence, plaintiff’s apparent plagiarism on her
submission of the Final Care Plan impacted her clinical component grade.
4
Grand River Dam Auth., 577 F.3d 1255, 1258 (10th Cir. 2009) (affirming district court’s
dismissal of plaintiffs’ claims against state agency based on Eleventh Amendment immunity). If
a defendant asserts Eleventh Amendment immunity, the court must address the issue before
reaching the merits of the underlying claim. See Jones v. Courtney, 466 F. App’x 696, 702 (10th
Cir. 2012) (unpublished)3 (“[I]f a state affirmatively raises an Eleventh Amendment immunity
defense, we are required to address the defense as a ‘threshold jurisdictional matter.’”); U.S. ex
rel. Burlbaw v. Orenduff, 548 F.3d 931, 942 (10th Cir. 2008) (stating that “addressing the
threshold jurisdictional matter [is] obligatory” if “directly asserted” by a state defendant); Martin
v. Kansas, 190 F.3d 1120 (10th Cir. 1999), overruled on other grounds by Bd. of Trustees of
Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (“Because the State’s assertion of Eleventh
Amendment immunity challenges the subject matter jurisdiction of the district court, the issue
must be resolved before a court may address the merits of [plaintiff’s] underlying . . . claim.”).
Because defendant’s Motion for Summary Judgment asserts that defendant is subject to Eleventh
Amendment immunity, the Court is required to address the immunity issue first.4
III.
Discussion
A. Eleventh Amendment Immunity
Defendant argues that it is immune from plaintiff’s section 1983 claims based on
Eleventh Amendment immunity. Plaintiff responds that defendant has waived its immunity.
3
Tenth Circuit Rule 32.1 provides: “Unpublished decisions are not precedential, but may be
cited for their persuasive value.”
4
Part of the test for granting a temporary restraining order, which is relevant to plaintiff’s
Motion for TRO (Doc. 17), requires the Court to assess the requesting party’s “likelihood of
success on the merits.” Schrier v. University of Colorado, 427 F.3d 1253, 1258 (10th Cir. 2005).
Because the Court may not conduct such an inquiry if it does not have jurisdiction to do so, it
must assess defendant’s Eleventh Amendment immunity defense first.
5
(Doc. 35 at 10).
Alternatively, plaintiff requests that the Court allow her to “add certain
Langston University officials in their individual capacities, if it is determined that Langston
University, as an entity, is to be dismissed.” (Id. at 10).
The Eleventh Amendment bars a suit for damages against a state in federal court, absent a
showing that the state has waived its immunity or where Congress has abrogated the state’s
immunity. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996); Edelman v. Jordan,
415 U.S. 651, 663 (1974).
The arm-of-the-state doctrine extends Eleventh Amendment
immunity to “entities created by state governments that operate as alter egos or instrumentalities
of the states.” Watson v. University of Utah Med. Ctr., 75 F.3d 569, 574 (10th Cir. 1996).
The Tenth Circuit has “consistently held” that state colleges and universities—as well as
their governing boards of regents—are arms of the state and therefore enjoy Eleventh
Amendment immunity. See, e.g., Murray v. Colorado, 149 F. App’x 772, 773 (10th Cir. 2005)
(unpublished) (Board of Regents of University of Colorado entitled to Eleventh Amendment
immunity); Sturdevant v. Paulsen, 218 F.3d 1160, 1170-71 (10th Cir. 2000) (holding that board
of state community college and occupational education system “enjoy[ed] Eleventh Amendment
immunity as an instrumentality or ‘arm’ of the State of Colorado”); Innes v. Kansas State
University, 184 F.3d 1275, 1278 (10th Cir. 1999), cert. denied, 529 U.S. 1037 (2000) (“Because
Kansas State University is an ‘arm of the state,’ it is entitled to assert Eleventh Amendment
immunity.”); Buchwald v. Univ. of New Mexico Sch. of Med., 159 F.3d 487, 494 n.3 (10th Cir.
1998) (“[W]e have no doubt that UNMSM, its [Board of] Regents, and the Committee on
Admissions are ‘arms of the state,’ entitled to Eleventh Amendment immunity.”); Univ. of Texas
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at Austin v. Vratil, 96 F.3d 1337, 1340 (10th Cir. 1996) (holding that “state colleges and
universities . . . are entitled to Eleventh Amendment immunity”); Watson v. Univ. of Utah Med.
Ctr., 75 F.3d 569, 574 (10th Cir. 1996) (University of Utah and its medical center were entitled
to Eleventh Amendment immunity from lawsuit alleging violation of due process rights and
deprivation of liberty and property interests); Seibert v. State of Okla. ex rel. Univ. of Okla.
Health Scis. Ctr., 867 F.2d 591, 594 (10th Cir. 1989), abrogated by Fed. Lands Legal
Consortium ex rel. Robart Estate v. U.S., 195 F.3d 1190 (10th Cir. 1999) (affirming district court
ruling that university, board of regents, and university employees sued in their official capacities
were immune from damages lawsuit).
Both the Tenth Circuit and the Oklahoma Supreme Court have specifically determined
that the boards of regents of Oklahoma universities are state entities immune from lawsuit under
the Eleventh Amendment. Seibert, 867 F.2d at 594 (determining that district court properly
dismissed damages action against the University of Oklahoma and its Board of Regents); Gay
Activists Alliance v. Bd. of Regents of the Univ. of Okla., 638 P.2d 1116, 1123–24 (Okla. 1981)
(“For the purpose of monetary damages, as an administrative agency, in essence an arm of the
State, the Board [of Regents] enjoys the privilege of Eleventh Amendment . . . immunity.”); see
also Hensel v. Office of Chief Admin. Hearing Officer, 38 F.3d 505, 508 (10th Cir. 1994)
(“[U]nder Oklahoma law, the Board of Regents of the University is an arm of the state . . . .”).
The law of this circuit therefore clearly demonstrates that defendant, the Board of
Regents for the Oklahoma Agricultural and Mechanical Colleges, is immune from plaintiff’s
lawsuit under the Eleventh Amendment.5 To be clear, the Eleventh Amendment bars all of
5
The fact that plaintiff’s Amended Complaint seeks injunctive relief in addition to compensatory
damages has no bearing on defendant’s Eleventh Amendment immunity because the “Eleventh
Amendment applies to all suits against the state and arms of the state, regardless of the relief
7
plaintiff’s claims. See Murray v. Colorado, 149 F. App’x 772, 773 (10th Cir. 2005) (upholding
district court’s dismissal of lawsuit against state and university board of regents alleging
deprivations of equal protection, the right to travel, and property without due process of law
based on Eleventh Amendment immunity); Buchwald, 159 F.3d at 493-94 (plaintiff’s lawsuit
alleging violations of her due process rights, equal protection, and the Commerce Clause was
barred as to medical school board of regents under the Eleventh Amendment immunity doctrine).
Plaintiff does not seem to dispute that Eleventh Amendment immunity applies to
defendant. Rather, she argues that defendant has waived its Eleventh Amendment immunity.
Specifically, plaintiff contends that defendant “has been authorized to acquire insurance and for
purposes of damages, Oklahoma has waived its Eleventh Amendment immunity.” (Doc. 35 at 10).
In support of this argument, plaintiff provides no Tenth Circuit authority and cites several
Oklahoma cases, including Schrom v. Oklahoma Industrial Development, 536 P.2d 904 (1975),
for the proposition that a governmental entity waives its immunity when it purchases liability
insurance. However, as defendant points out, plaintiff has not provided any evidence to show
that defendant has in fact purchased liability insurance. (Doc. 37 at 7). Defendant also states
that it has not purchased liability insurance. (Id.). Even if plaintiff had demonstrated that
defendant purchased liability insurance, her claim would nonetheless fail because this rule of law
applies only to sovereign immunity, not immunity under the Eleventh Amendment. Thames v.
Oklahoma Historical Soc., 646 F. Supp. 13, 15 (W.D. Okla. 1985), aff’d, 809 F.2d 699 (10th Cir.
1987) (rejecting plaintiff’s argument that under Schrom, an entity’s purchase of liability
sought.” Murray v. Colorado, 149 F. App’x 772, 775 n.1 (10th Cir. 2005) (unpublished);
Higganbotham v. Okla. Transp. Com’n, 328 F.3d 638, 644 (10th Cir. 2003) (“In the instant case,
the plaintiff has directly sued the state and its agencies seeking declaratory and injunctive relief,
and Eleventh Amendment immunity squarely applies in these circumstances.”).
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insurance constituted waiver of Eleventh Amendment immunity because “Eleventh Amendment
immunity cannot be equated with the limited defense of sovereign immunity . . . ”).
Plaintiff also contends that defendant is not immune from this lawsuit because it was
previously subject to suit in Gossett v. Oklahoma ex rel. Board of Regents for Langston
University, 245 F.3d 1172 (10th Cir. 2001). In Gossett, a former nursing student brought a
lawsuit pursuant to Title IX and section 1983, alleging that defendant, the Langston University
president, and the Langston University dean engaged in gender discrimination by involuntarily
withdrawing him from the nursing program. The Tenth Circuit reversed the district court’s
decision to grant defendants’ motion for summary judgment because it failed to consider certain
evidence. Id. at 1177. While the Tenth Circuit’s opinion did not explicitly assess Eleventh
Amendment immunity, it did state that the plaintiff’s section 1983 claims could only “proceed
against [the] defendants individually,” and because it had determined that further proceedings
were necessary, it declined to consider the issue of immunity as to plaintiff’s Title IX claim. Id.
at 1180. Contrary to plaintiff’s assertion, Gossett does not support plaintiff’s claim that Eleventh
Amendment immunity is inapplicable to defendant—the Board of Regents—in this case.
Plaintiff’s claim is thus without merit.
Defendant has clearly established that Eleventh Amendment immunity applies to bar
plaintiff’s lawsuit because defendant is an arm of the state and is the only named defendant. The
Court therefore has no jurisdiction over this case.6
B. Leave to Amend Complaint by Adding Additional Defendants
6
Plaintiff suggests that the “proper remedy,” if the Court determines that defendant is entitled to
Eleventh Amendment immunity, is to transfer the case to state court. (Doc. 35 at 11). As
plaintiff fails to provide any authority to show that transfer to state court is proper given the
circumstances of this case, the Court declines to grant this request.
9
In her Response to defendant’s Motion for Summary Judgment, plaintiff requests leave to
amend her Complaint in the event the Court determines that defendant is subject to immunity
under the Eleventh Amendment. (Doc. 35 at 10). Plaintiff argues that she should be allowed to
add as defendants certain Langston University employees in their individual capacities, but fails
to provide the Court with any further detail. (Id.) In its Reply, defendant argues that plaintiff’s
request is untimely and seeks to “circumvent” summary judgment. (Doc. 37 at 7). For the
reasons below, the Court denies plaintiff’s request to amend her Complaint.
A party seeking leave to amend its complaint after a scheduling order deadline has passed
must demonstrate: “(1) good cause for seeking modification under Fed. R. Civ. P. 16(b)(4) and
(2) satisfaction of the [Fed. R. Civ. P.] 15(a) standard.” Gorsuch, Ltd., B.C. v. Wells Fargo Nat.
Bank Ass’n, 771 F.3d 1230, 1240 (10th Cir. 2014).
1. Good cause requirement under Fed. R. Civ. P. 16
The Court’s Scheduling Order imposed a deadline of August 3, 2015 for plaintiff to
amend her complaint or join additional parties. (Doc. 15). Plaintiff’s request to add additional
defendants was brought six months after the Court’s deadline. Plaintiff already amended the
Complaint once (Doc. 5), which she was properly allowed to do as a matter of right pursuant to
Fed. R. Civ. P. 15(a)(1).
The good cause standard requires plaintiff to “show the ‘scheduling deadlines cannot be
met despite [the movant’s] diligent efforts.’” Gorsuch, 771 F.3d at 1240 (quoting Pumpco, Inc. v.
Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). Good cause may be shown where a
plaintiff learns new information through discovery, or if the law relevant to the plaintiff’s claims
has changed. Id. at 1240. However, good cause does not exist where the plaintiff already knew
of the relevant facts and simply failed to include claims or parties in the complaint. Id.
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Plaintiff has not presented the Court with any facts to show that good cause exists to
allow her to amend the Complaint at this time. Importantly, there is no indication that plaintiff
has learned new information that would justify amending the complaint, nor that the relevant law
has changed. It is clear that plaintiff already knew of potential additional defendants at the outset
of this litigation, but failed to include them in her Complaint or in her Amended Complaint.7
Accordingly, plaintiff cannot demonstrate good cause exists.
In light of plaintiff’s failure to meet the good cause requirement, the Court is not required
to address the Rule 15(a) question and declines to do so. See Gorsuch, 771 F.3d at 1242
(“Having concluded [the plaintiffs] lacked good cause to amend their pleadings after the
scheduling order deadline, we need not reach the Rule 15(a) issue, and decline to do so.”).
IV.
Conclusion
IT IS THEREFORE ORDERED that plaintiff’s claims are dismissed without
prejudice.8 This case is terminated. A separate judgment of dismissal will be entered herewith.
IT IS FURTHER ORDERED that plaintiff’s Motion for Temporary Restraining Order
(Doc. 17) and defendant’s Motion for Summary Judgment (Doc. 35) are denied as moot.
SO ORDERED this 30th day of June, 2016.
7
While suits against state officials in their individual capacities are permitted under Ex Parte
Young, 209 U.S. 123, (1908), plaintiff has not sued any Board member or Langston University
employee in an individual capacity. Instead, the Board of Regents is named as the sole
defendant. Therefore, the Ex parte Young exception does not apply. The Court is aware that
plaintiff’s request to amend merely seeks to preserve the lawsuit by naming individuals who
would be subject to suit under the Ex parte Young doctrine. However, plaintiff could have
named these individuals as defendants much earlier in the case.
8
Schrader v. Richardson, 461 F. App’x 657, 660 (10th Cir. 2012) (unpublished) (stating that
district court properly “relied on Eleventh Amendment immunity to dismiss the official capacity
claims without prejudice, in keeping with our precedent in Korgich v. Regents of N.M. Sch. of
Mines, 582 F.2d 549, 550 (10th Cir. 1978)”).
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