Reynolds v. Portland State University

Filing 38

OPINION AND ORDER. Because PSU is entitled to immunity under the Eleventh Amendment, and because Mr. Reynolds has failed to identify a genuine issue for trial, I GRANT PSU's Motion for Summary Judgment 26 . Signed on 06/12/2015 by Judge Michael W. Mosman. (Copy mailed to plaintiff) (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
GREG M. REYNOLDS,
Case No. 3:14-cv-01733-MO
Plaintiff,
OPINION AND ORDER
v.
PORTLAND STATE UNIVERSITY
Defendant.
MOSMAN, J.,
Pro Se Plaintiff Greg M. Reynolds alleges violations of his Fourth, Fifth, Sixth, and
Fourteenth Amendment rights under 42 U.S.C. § 1983. Defendant Portland State University
(“PSU”) moves for summary judgment [26] on all of Mr. Reynolds’s claims. Mr. Reynolds did
not respond in a timely manner and an Order to Show Cause was issued [33]. On May 21, 2015,
Mr. Reynold responded to the Order to Show Cause [35] and filed his Response in Opposition to
the Motion for Summary Judgment [36]. PSU filed their Reply [37] on June 5, 2015. Because
PSU is entitled to immunity under the Eleventh Amendment, and because Mr. Reynolds has
failed to identify a genuine issue for trial, I GRANT PSU’s Motion for Summary Judgment [26].
BACKGROUND
While enrolled as a student at PSU, Mr. Reynolds emailed the Office of Public Defense
Services seeking help to appeal a prior felony conviction. Upon being informed of how to
request an appellate public defender, Mr. Reynolds responded, “[t]hank you for your attempt to
help. I fear the only way to see justice in this case is to walk into a school and open fire.” Zerzan
Decl. [27] Ex. 1, p. 5. Because Mr. Reynolds had a PSU email address, the official who received
his email forwarded it on to the Lane County District Attorney’s Office, which in turn,

forwarded it to the Federal Bureau of Investigation and to PSU’s Campus Public Safety Office
(“CPSO”).
A week later, two officers from the Multnomah County Sherriff’s Office and two CPSO
officers visited Mr. Reynolds home to perform a welfare check. CPSO Officer David Baker
approached Mr. Reynolds on his front porch, asked him if they could talk, and Mr. Reynolds
agreed. The two spoke about Mr. Reynolds’s email and Mr. Reynolds characterized the email as
“something [he] shouldn’t have” said. Zerzan Decl. [27] Ex. 1, p. 3. Mr. Reynolds explained that
while he had considered his statement about walking into a school and opening fire a possibility
at the time he made it, he no longer felt that way now because he had “options.” Id. When asked
to elaborate, Mr. Reynolds explained that he had called a counselling hotline, had spoken with
PSU’s Legal Services about appealing his conviction, and had reached out to PSU’s Student
Health and Services. Finally, Mr. Reynolds told Officer Baker that he did not own any firearms,
but that some of his friends did.
Upon receiving Officer Baker’s report of the interaction, PSU’s Dean of Student Life
determined there was a significant concern that Mr. Reynolds could cause substantial harm to
others and temporarily suspended him pending a Student Conduct Committee (“Committee”)
hearing on potential Student Code of Conduct (“Code”) violations. PSU provided a “timely
warning” to the campus community, as required by the Clery Act, 20 U.S.C. § 1092(f) (2012),
and PSU’s Dean of Conduct and Community Standards met with Mr. Reynolds to discuss the
school’s concerns. At the Committee hearing, Mr. Reynolds spoke on his own behalf, admitted
he had made the statements that violated the Code, and apologized for his actions. The
Committee concluded that Mr. Reynolds had violated the Code by engaging in “behavior that
constitutes a possible threat to the health or safety of others,” and therefore suspended Mr.

Reynolds for one year. Thomas Decl. [28] Ex. 5. The Committee also required Mr. Reynolds to
participate in counseling sessions as a precondition to returning to school.
One month later, CPSO again received notice that Mr. Reynolds made threatening
statements regarding potential school violence. In an application for Social Security benefits, Mr.
Reynolds wrote,
“I am so sorry that I did not walk into a school and open fire, at the very least my
punishment would fit my crime. Now I have been suspended for over a year so
that I can get on disability and get treatment for my mental illness hopefully
before I am forced to enter a school and open fire.”
Zerzan Decl. [27] Ex. 3, p. 5. CPSO forwarded these comments on to the Office of the Dean of
Student Life, who informed Mr. Reynolds the Committee would meet to discuss his new
statements. A representative from the Office of the Dean of Student Life met with Mr. Reynolds,
but Mr. Reynolds refused to discuss the new statements. Furthermore, Mr. Reynolds did not
attend the Committee’s hearing on potential Code violations. At the hearing, the Committee
decided to expel Mr. Reynolds from campus and notified him in a letter dated November 5,
2012. Thomas Decl. [28] Ex. 8. Mr. Reynolds appealed the Committee’s decision to PSU’s Vice
President, but the appeal was declined.
LEGAL STANDARD
Summary judgment is proper “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). Materiality depends on the substantive law and is determined by looking to whether the
fact “might affect the outcome of the suit.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The initial burden for a motion for summary judgment is on the moving party to identify
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Once that burden is satisfied, the burden shifts to the nonmoving party to demonstrate,

through the production of evidence listed in Fed. R. Civ. P. 56(c)(1) that there remains a
“genuine issue for trial.” Celotex, 477 U.S. at 324. The non-moving party may not rely upon the
pleading allegations. Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995)
(citing Fed. R. Civ. P 56(e)). All reasonable doubts and inferences to be drawn from the facts are
to be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
Before getting to Mr. Reynolds’s substantive claims, PSU contends that I should grant
summary judgment because Mr. Reynolds claims are barred by the Eleventh Amendment and
because PSU is not a proper defendant under 42 U.S.C. § 1983. The Ninth Circuit has explicitly
held that PSU “is an arm of the state of Oregon and, therefore, immune from suit [in federal
court] under the Eleventh Amendment.” Hagel v. Portland State Univ., 237 F. App'x 146, 147–
48 (9th Cir. 2007); see also Rounds v. Or. State Bd. of Higher Educ., 166 F.3d 1032, 1035 (9th
Cir. 1999) (explaining that claims may instead be brought against individual defendants in their
official capacity). Therefore, Mr. Reynolds does not have a valid claim against PSU.
Furthermore, even if Mr. Reynolds were to re-plead his case to allege specific claims
against those PSU officials he believes responsible for violating his Constitutional rights, Mr.
Reynolds has not met his burden for demonstrating a genuine issue for trial. While Mr. Reynolds
alleges violations of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights, he has not
produced sufficient evidence to substantiate any of these claims.
First, Mr. Reynolds alleges that PSU violated his Fourth Amendment rights when Officer
Baker came on to his property without a warrant to discuss his initial threatening email.
However, officers do not violate the Fourth Amendment when they simply approach a home in

an attempt to initiate consensual contact with the occupants. United States v. Perea-Rey, 680
F.3d 1179, 1187–88 (9th Cir. 2012). Furthermore, once an individual provides consent, an
officer no longer requires a warrant to remain on the individual’s property. United States v.
Garcia, 997 F.2d 1273, 1280–81 (9th Cir. 1993). Consequently, Mr. Reynolds’s allegation that
Officer Baker violated his Fourth Amendment Rights does not present a genuine issue for trial.
Next, Mr. Reynolds alleges that PSU’s suspension and expulsion proceedings violated his
right to due process under the Fifth and Fourteenth Amendments. 1 The Supreme Court has
recognized a “student's legitimate entitlement to a public education as a property interest which
is protected by the Due Process Clause.” Goss v. Lopez, 419 U.S. 565, 574 (1975). However, in a
case very similar to this one, the Ninth Circuit affirmed this Court’s grant of summary judgment
to PSU for actions almost identical to their actions here. See Hagel, 237 F. App'x at 148. In
Hagel, PSU suspended a student pending a hearing before the Student Conduct Committee for
making threatening comments to both students and members of the Student Conduct Committee.
No. CV 04-1770-BR, 2005 WL 1502884, at *2 (D. Or. June 9, 2005) aff'd in relevant part, 237
F. App'x 146 (9th Cir. 2007). This Court held—and the Ninth Circuit affirmed—that PSU did
not violate the student’s right to due process where they sent him notice of the specific
allegations pending against him, provided him with opportunities to discuss these allegations
with school officials, held hearings before the Student Conduct Committee, and provided him an
opportunity to appeal. Id. at *6–7. Because PSU has provided all the same opportunities to Mr.
Reynolds, and because Mr. Reynolds has not provided any further arguments as to how PSU
violated his right to due process, Mr. Reynolds has failed to present a genuine issue for trial.

1

As I have previously recognized PSU as an arm of the State of Oregon, I will technically analyze its obligations
under the Fourteenth Amendment, which prohibits “any state [from] depriv[ing] any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1.

Finally, Mr. Reynolds alleges that PSU’s investigation and disciplinary proceedings
violated his Sixth Amendment rights. The Sixth Amendment provides that “[i]n all criminal
prosecutions,” the accused shall enjoy certain delineated rights. U.S. CONST. amend. VI.
However, Mr. Reynolds provides no evidence that PSU subjected him to a criminal prosecution.
Therefore, his claims that PSU violated his Sixth Amendment rights do not provide a genuine
issue for trial.
CONCLUSION
Because PSU is entitled to immunity under the Eleventh Amendment, and because Mr.
Reynolds has failed to identify a genuine issue for trial, I GRANT PSU’s motion for summary
judgment [26]. IT IS SO ORDERED.

DATED this

12th

day of June, 2015.

/s/ Michael W. Mosman_______
MICHAEL W. MOSMAN
United States District Judge