Gibson v. Walden University, LLC

Filing 28

ORDER: Granting 22 Motion to Dismiss for Failure to State a Claim. This action is dismissed with prejudice. Signed on 11/13/2014 by Judge Owen M. Panner. (jkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

GARY GIBSON,
Plaintiff,

1:14-cv-00817-PA

ORDER
v.
WALDEN UNIVERSITY, LLC,
Defendant.

FANNER, J.
This matter comes before the Court on Defendant's Motion to
Dismiss the Second Amended Complaint

(#22).

Defendant's Motion

is GRANTED.
Background

Defendant Walden University is a private university which
operates primarily via the Internet.

Plaintiff enrolled with

Defendant in 2011 as a masters candidate in Mental Health
Counseling.

As part of his degree program,

Portland residency in late October 2013.

Plaintiff attended a

Plaintiff alleges that

he disclosed his "pedophilic sexual orientation" during a small
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group session and that he was

subsequ~ntly

dismissed from the

program and the university.
Legal Standard

Where the plaintiff "fail[s] to state a claim upon which
relief can be granted," the court must dismiss the action.
R. Civ. P. 12 (b) (6).

Fed.

To survive a motion to dismiss, the

complaint must allege "enough facts to state a claim to relief
that is plausible on its face."
550 U.S. 544, 570

Bell Atlantic Corp. v. Twombly,

(2007). For the purpose of the motion to

dismiss, the complaint is liberally construed in favor of the
plaintiff and its allegations are taken as true.
W 1 t e r s , 7 1 9 F . 2 d 14 22 , 14 2 4 ( 9th Ci r . 1 9 8 3 ) .
a

Rosen v:

However , bare

assertions that amount to nothing more than a "formulaic
recitation of the elements" of a claim "are conclusory and net
entitled to be assumed true."
680-81

(2009).

Ashcroft v. Iqbal, 556 U.S. 662,

Ratherr to state a plausible claim for relief,

the complaint "must contain sufficient allegations of underlying
facts" to support

~ts

legal conclusions.

1202, 1216, reh'g en bane denied,

Starr v. Baca, 652 F.3d

659 F.3d 850 (9th Cir. 2011).

Discussion

Plaintiff's Second Amended Complaint alleges that
Defendant's Student Handbook, which sets forth Defendant's
nondiscrimination policy, formed a contract between the parties.
Plaintiff alleges that Defendant violated that policy by
dismissing him from the mental health counseling program based on
his
2

~pedophilic

- ORDER

sexual orientation."

Plaintiff also alleges that

Defendant breached a contract by failing to provide him with
remedial modules as promised and by failing to provide a timely
response to Plaintiff's appeal.
I. The Walden Student Handbook 1

Plaintiff's Second Amended Complaint alleges that the Walden
Student Handbook created an.enforceable contract between the
parties in this case.

The Walden Student Handbook states that it

may be "may be modified Dr discontinued from time to time in the
university's sole discretion .

Neither the provisions of

this document, nor the acceptance of students through
registration and enrollment in the university, constitutes a
contract or an offer of a contract."

Riedel Decl. Ex. A at ii,

iii.
The existence of an enforceable contract is an essential
element to a claim for breach of contract.

Fort Vancouver

Broadcasting Corp. v. Fouce Amusement Enters.,

933 F.2d 1013 (9th

Cir. 1991).
Plaintiff relies on Bird v. Lewis & Clark Coll., 104 F.

1

Plaintiff's Second Amended Complaint references and relies
upon the Walden Student Handbook, but does not explicitly
incorporate it.
In ruling on a 12(b) (6) motion, a court may
generally "consider only allegations contained in the pleadings,
exhibits attache_d to the complaint, and matters properly subject
to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th
Cir. 2012) (citation omitted). A court, however, "may consider a
writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the .document and its
authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756,
763 (9th Cir~2007) (citation omitted).
Defendant has provided
the Student Handbook as an exhibit to the Ri~del Declaration
(#24) and Plaintiff makes no challenge to the exhibit's
authenticity.
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Supp. 2d 1271 (D. Or. 2000), to support the existence of a
contract between the parties.

In Bird, the court concluded that

"'[T]he basic legal relationship between a student and private
university or College is contractual in nature.

The catalogs,

bulletins, circulars, and regulations of the institution made
available to the matriculant became part of the contract.'" Id.
at 1276 (quoting Ross v. Creighton Univ., 957 F.2d 410, 416 (7th
Cir. 1992).

I~

ordet to state a claim for breach of contract in

the private university context, the plai"ntiff "must point to an
identifiable contractual promise that the defendant failed to
honor."

Ross,

957 F.2d at 417.

Both Bird and Ross dealt with "individualized agreement[s]"
to provide specific services to particular students.
F. Supp.2d at 1277.

Bird, 104

In Bird, the contract dealt with providing

accommodations to a disabled student in order for her to
participate in an overseas study program.

Id.

In Ross, the

university promised to provide special services to allow a gifted
basketball player to·participate in the university's curriculum
despite his academic difficulties.

Ross,

957 F.2d at 417.

In

this case, by contrast, the alleged contract was contained in a
generally applicable student handbook.
Under certain circumstances, a private university student
handbook may tonstitute a contract between the student and the
institution.

See Dauven v. George Fox Univ., No. CV. 09-305-PK,

2010 WL 6089077, at *17

(D. Or. Dec. 3, 2010).

In Dauven, the

court held. that a student handbook potentially constituted a
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contract because it contained language indicating that it
established a contract, including an "Agreement Contract," which
required the student to read, sign, and abide by the guidelines
contained within the handbook.

Id.

In the present case, by

contrast, the Walden Student Handbook expressly disclaims the
formation of a contract or that the Handbook constitutes an offer
of a contract.
Other Circuits and Districts have confronted situations more
closely analogous to the present case.

In Carr v. Bd. of Regents

of Univ. Sys. of Georgia, 249 F. App'x. 146, 150-51 (11th Cir.
2007), the Eleventh Circuit held that an undergraduate catalog
did not constitute a contract, in part because it contained
express disclaimers to that effect.

See also Abbas v. Woleben,

Civil No. 3:13-CV-147, 2013 WL 5295672, at *4

(E.D. Va. Sept. 19,

2013) (finding that university handbooks and catalogs do not form
a contract when the terms are not binding on the university);
(

Brown v. Rector & Visitors of the Univ. of Virginia, Civil Action
No. 3:07-CV-00030, 2008 WL 1943956, at *6 (W.O. Va. May 2, 2008)
(holding that a student handbook did not constitute a binding
contract based on its disclaimers).

I find these cases

persuasive and, based on the disclaimers contained in the

Wald~n

Student Handbook, I conclude that no contract existed between the
parties in this case.
Even if the Walden Student Handbook did constitute an
enforceable contract,

Plaintiff has not sufficiently alleged that

Defendant's conduct constituted a violation of the Handbook's
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nondiscrimination clauses.

The Walden Student Handbook forbids

"discrimination by or against members of the university community
on the basis of race, color, national origin, gender, sexual
orientation, religion, age, mental or physical disability,
veteran status, or other protected characteristics in the
admission

to,~

access to, or treatment or employment· in any of its

programs or activities." Riedel Decl. Ex. A, at 331 (emphasis
added) .

By its terms, the nondiscrimination clause is

"consistent with applicable federal,

state, and local laws

guaranteeing nondiscrimination for all protected
classifications[.]" Id. at 330.

Plaintiff has not pled that

"pedophilic sexual orientation" is a protected classification
under either federal or state law, nor has he cited any authority
for that proposition in his Response to Defendant's Motion to
Dismiss (#25) . 2

I conclude that "pedophilic sexual orientation"

does not fall within the bounds of the Walden Student Handbook's
nondiscrimination policy.
Accordingly,
2

I conclude that Plaintiff has failed to state a

Plaintiff cites to the Diagnostic and Statistical Manual of
Mental Disorders, Fifth Edition ("DSM-5'') for the proposition
that if an individual is sexually at~tracted to children but does
not act on that attraction and is not troubled by it, the
individual has "pedophilic sexual orientation." Plaintiff argues
that Defendant is bound to consider "pedophilic sexual
orientation" as covered by its. nondiscrimination policy because·
it uses the DSM-5 as a textbook.
P. Mem. Opp. at 5. At
Defendant's request, I take judicial notice of the DSM-5.
U~S.
v. Cantu, 12 F.3d 1506, 1509 n. 1 (9th Cir. 1993) (taking judicial
notice of the DSM Third Edition).
I note that the relevant
portion of the DSM-5 (discussing paraphilic disorders) identifies
the de~cribed condition as "pedophilic sexrial interest" and not
"pedophilic sexual orientation," as suggested by Plaintiff.
Escobar Decl. Ex. A, at 6.
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claim for breach of contract based on the Walden Student
Handbook.

This claim is DISMISSED.

II. Alleged Oral Promise
Plaintiff's Second Amended Complaint alleges that after he
was dismissed from his residency, Walden administrators offered
to ~rovide two "remedial modules" so that Plaintiff could
"complete a later session without additional charge."
Compl. at 3.

Second Am.

Plaintiff alleges that he was not provided with

these promised modules.

Based on Plaintiff's Response to the

Defendant's motion to dismiss, it appears that Plaintiff alleges
that this promise constituted a contract.
In order to state a claim for breach of contract, a
plaintiff must plead a bargain in which there is a manifestation
of mutual assent to the exchange and consideration.

U.S. for Use

of Youngstown Welding and Engineering Co. v. Travelers Indem;
Co., 802 F.2d 1164, 1169 (9th Cir. 1986).

To the extent that

Plaintiff has alleged a breach of contract claim based on oral
promises, the Second Amended Complaint does not state that
Plaintiff accepted the

o~fer

state what consideration was

of the remedial
ex~hangedr

~odules,

nor does he

Nor does the Second

Amended Complaint clearly allege who made the promises or when:
Such bare-bones allegations are not sufficient to support a claim
for breach of contract.
Furthermore, in the dismissal letter attached to
Response,

Pla~ntiff's

Plaintiff was informed that "Walden University has

determined that your continued preparation as a counselor is not
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consistent with the objectives of the counseling profession and
not in' your best interests or that of the university or the
counseling client community."

Pl.'s Resp. Ex. A, at 2.

Plaintiff was informed that he was being dropped from the
counseling course and dismissed from the university.

The letter

also states that Plaintiff's tuition for the counseling course
would be refunded.

Defendants unequivocal statements of

dismissal ate inconsistent with the alleged promise of remedial
modules to allow Plaintiff to complete the counseling course,
especially considering that Defendant had apparently determined
that Plaintiff's continued enrollment presented an ethical
conflict.

This claim is DISMISSED.

III. Inadequate Process

Plaintiff's Second Amended Complaint appears to allege that
Defendant breached its contractual obligations when it failed to
respond to Plaintiff's appeal of .his dismissal within forty-five
days as required by the American Counseling Association ("ACA")
Code of Ethics and as provided in the Walden Student Handbook. 3
The ACA Code of Ethics requires counselor educators to "ensure
that students have recouse in a timely manner to address
decisions requiring them to seek assistance or to dismiss them
and

provide~students

3

with due process according to institutional

Plaintiff appears to allege that he was entitled to process
as part of the ACA Code of Ethics. Although Plaintiff does not
explicitly incorporate the ACA Code of Ethics, the document is
referenced and relied upon in his pleadings.
It is therefore
appropriate for consideration in ruling on this motion.
See
Swartz v. KPMG LLP,. 476 F. 3d 756, 763 (9th Cir.2007).
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policies and procedures."

Escobar Decl. Ex B, at 15.

To the extent that Defendant was bound to abide by the ACA
Code of Ethics, all that was required was compliance with
institutional appeals procedures.
in the Walden Student Handbook.

Those procedures are contained
The Walden Student Handbook says

that "Normally no more than 45 calendar days should elapse
between the £iling of the appeal and the disposition by the chief
academic officer."

Reidel Decl. Ex. A at 339.

By its plain language, this provision does not guarantee
disposition of an appeal within forty-five days.

Although

Plaintiff does allege that it took considerabiy longer for
Defendant to resolve Plaintiff's appeal, his complaint was
apparently investigated and ruled upon by the appropriate
officials.

I conclude that Plaintiff has failed to adequately

state a breach of contract claim based upon failure to timely
respond to Plaintif£'s appeal.
IV. Dismissal With Prejudice
Defendant requests that dismissal be with prejudice.
Although pro se pleadings are held to less stringent standard
thah those drafted by lawyers, see Haines v. Kerner,

404 U.S.

519, 520 (1972), I note that Plaintiff has already amended his
complaint twice.

I see no possibility that Plaintiff might

further amend his complaint to·state a claim.
dismissal is with prejudice.

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- ORDER

Accordingly,

CONCLUSION

Defendants' Motion to Dismiss

(#22) is GRANTED.

is DISMISSED with prejudice.
IT IS SO ORDERED.
DATED

this~

day of November, 2014.

OWEN M. PANNER
U.S. DISTRICT JUDGE

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This action