CHARLES A. PANNELL, JR., District Judge.
This matter is now before the court on Leah McMillan's motion for summary judgment [Doc. No. 167]; Laverne Gaskins's motion for summary judgment [Doc. No. 174]; Gaskins's motion for oral argument [Doc. No. 175]; Board of Regents of the University System of Georgia, Kurt Keppler, Russ Mast, Valdosta State University, and Ronald M. Zaccari's motion for summary judgment [Doc. No. 177]; Thomas Hayden Barnes's motion for summary judgment [Doc. No. 179]; and Barnes's motion to exclude Dr. Matthew Norman as an expert witness [Doc. No. 164]. As an initial matter, the court denies Gaskins's motion for oral argument [Doc. No. 175].
This lawsuit arises out of the administrative withdrawal of the plaintiff, Thomas Hayden Barnes, from Valdosta State University in May 2007. The remaining defendants in this action are: Valdosta State University ("VSU"); the Board of Regents of the University System of Georgia ("BOR"); Ronald M. Zaccari, former President of VSU; Kurt Keppler, Vice President for Student Affairs at VSU; Russ Mast, Dean of Students at VSU;
Barnes initially enrolled at VSU in the fall of 2005 as a transfer student, but he later left while on academic probation to attend paramedic school in Savannah, Georgia in 2006.
On March 22, 2007, the VSU student newspaper, The Spectator, ran a story regarding VSU President Zaccari's plans to construct a large parking garage on campus. More specifically, the parking structure was part of a "Master Plan" that Zaccari had developed between 2002 and 2004 at the direction of the BOR. After reading the article, Barnes started an initiative to raise public awareness of the issue and its potential environmental affects. Over the next week, Barnes posted a series of flyers around the VSU campus expressing his concerns for the possible environmental damage that the parking garage plan might cause,
Shortly after Barnes's flyers started appearing around campus, Zaccari directed
After he sent his letter to Zaccari, Barnes maintained his interest in the parking garage's construction. Specifically, Barnes created a satirical collage protesting the project [Doc. No. 179, Ex. 25],
Upon being informed of Barnes's contact with members of the BOR,
In the days following the April 16 meeting with Zaccari, Barnes sent the President a follow-up email [Doc. No. 179, Ex.
On April 20, 2007, Zaccari attended a faculty senate breakfast, where he made some remarks about his frustrations with the protests and opposition to his parking deck plan. One of the professors in the audience, Dr. Michael Noll, was one of Barnes's professors. Dr. Noll approached Zaccari at the conclusion of the meeting to discern whether Barnes was the subject of the President's ire and to ask if he could help in any way. Zaccari rejected the offer and told Dr. Noll that "it was not a faculty senate issue; that it would be handled from the administration side and the faculty. And [Zaccari] asked [Noll] not to discuss it." Zaccari Depo. [Doc. No. 179, Ex. 4 at 198:14-16].
After his breakfast with faculty members on April 20, 2007, Zaccari met with his assistant, Thressea Boyd, Major Ann Farmer of the VSU Police, Dean Russ Mast, Laverne Gaskins (VSU in-house counsel), and Dr. Tanner in the President's conference room. During the meeting, Zaccari informed the group that he had investigated Barnes's employment and grades, and he further expressed complaints about Barnes's correspondence regarding the parking garage.
In response to Zaccari's information, Dr. Tanner informed the group of the contents of Barnes's file with the Access Office, including details regarding Barnes's medical condition and the identity of his treating counselor at the VSU Counseling Center. Major Farmer suggested that if Zaccari felt threatened, the President could file a formal report and get a temporary restraining order. However, Zaccari declined to file a report against Barnes.
After the conclusion of the April 20 meeting with Zaccari, Major Farmer conducted her own follow-up investigation in an effort to determine if Barnes could potentially be a threat to Zaccari. First, Major Farmer "ran a check through our records person to see if she could pull up any records with Hayden Barnes's name on them" but there were "no kinds of reports where there had been any trouble with Hayden Barnes." Farmer Depo. [Doc. No. 179, Ex. 27 at 34:21-35:7]. Then, Major Farmer called the VSU Counseling Center to inquire whether Barnes was a patient or "whether or not Hayden may be a problem." Id. at 36:7-12. Major Farmer ultimately spoke with McMillan, who told Farmer that Barnes had exhibited grandiose thinking, narcissism at times, manic behavior at times, the tendency to become obsessed with situations, and being paranoid at times. Nevertheless, McMillan concluded by effectively
On April 23, 2007, Barnes posted a series of items on his Facebook webpage [Doc. No. 179, Ex. 34]. The postings included clips of Bill Maher and The Daily Show television programs, a New York Times article about processed foods, a status update that "Hayden Barnes is cleaning out and rearranging his room and thus, his mind, so he hopes", and a link to a Salon.com article written by Cary Tennis.
Zaccari held a second meeting on April 23, 2007, with various members of his staff, including Major Farmer, to discuss Barnes and any new information since the last meeting. During this meeting, Zaccari discussed speaking with someone at the South Georgia Medical Center regarding Barnes's termination of employment. Additionally, Zaccari pointed out that Barnes would not likely be able to meet the required 2.0 grade point average in order to remain in school. Finally, Zaccari claimed that an intruder had tripped the alarm at his residence and that he had been receiving crank calls on his home phone line from a male caller.
Then, around lunchtime on April 24, 2007, Zaccari summoned McMillan to his office to discuss Barnes and obtain more information about Barnes's treatment history. During the meeting,
In response, McMillan explained to Zaccari what she had observed during her counseling sessions with Barnes. She also alerted the President that she had been in contact with Barnes's psychologist, Dr. Winders, in Savannah about a possible re-evaluation.
On April 25, 2007, Kurt Keppler (Vice President of Student Affairs) called a meeting to discuss the situation involving Barnes. The meeting was attended by Keppler, Mast, VSU Assistant Dean of Students Richard Lee, and Erin Sandonato, an R.H.D. in the residence hall.
On April 26, 2007, Zaccari held another meeting in his office again to discuss Barnes. The third meeting was attended by Keppler, McMillan, and Dr. Victor Morgan of the VSU Counseling Center. During the meeting, Zaccari reiterated his concern regarding Barnes and claimed that he felt threatened for his own safety and for that of the VSU campus. Zaccari then discussed the possibility of using a procedure he called an "administrative withdrawal" to remove Barnes from VSU. Zaccari believed the withdrawal would not require the involvement of a student/faculty council or anyone from the VSU Counseling Center. Furthermore, Zaccari felt that a "mental health" or "disorderly conduct" withdrawal process was "cumbersome" because it would take time and require the President to produce evidence to support his decision. Zaccari Depo. [Doc. No. 179, Ex. 4 at 247:10-248:9].
During the meeting, Zaccari also showed a copy of the collage found on Barnes's Facebook webpage and described the document as "an indirect threat" on him regarding the parking garage. However, none of the other attendees expressed agreement with Zaccari's concerns. In fact, McMillan and Keppler did not perceive anything threatening about the collage, and Dr. Morgan did not believe that Barnes used the word "memorial" in the collage in a threatening manner. Specifically, Dr. Morgan's belief was that Barnes used the term to mean that "this is a building that is going to be designated with your name on it; that you're going to be held responsible for the parking garage." Morgan Depo. [Doc. No. 179, Ex. 38, p. 21:13-22:6].
Later during the meeting, McMillan told Zaccari that she did not believe Barnes "was a danger at the present time or had exhibited violent behavior in the past." McMillan Depo. [Doc. No. 179, Ex. 11 at 163:4-9]. Dr. Morgan followed up by asserting, "[i]n my opinion, he's complying with everything we're asking him to do." Morgan Depo. [Doc. No. 179, Ex. 38 at 22:21-23:1]. He added that Barnes was "seeing his counselor on a regular basis" and was "taking the prescribed medication that his physician prescribed for him." Id. at 23:2-6. Finally, Morgan concluded that he did not "feel that we have any reason to be able to withdraw him for mental health reasons."
On the same day of his meeting with Keppler, Morgan, and McMillan, Zaccari directed that in-house counsel Gaskins inquire of Elizabeth Neely, Vice Chancellor for Legal Affairs at the BOR, as to a student's appeal rights if a university president files a complaint against a student for violation of the Student Code of Conduct [Doc. No. 179, Ex. 40]. Neely responded via email by stating,
Id. Then, on May 2, 2007, Zaccari summoned Gaskins to his office to participate in a telephone conference with Neely regarding Barnes. During the conference, Neely discussed various ways that Barnes could be administratively withdrawn. Gaskins responded by expressing concern that any withdrawal might be in violation of his rights under the First Amendment, the Due Process Clause, and/or the Americans with Disabilities Act ("ADA"). Neely later told Zaccari that the President should focus on the safety of campus and himself and "we'll worry about the lawsuit later." Gaskins Depo. [Doc. No. 179, Ex. 8 at 68:14-15]. After the conclusion of the telephone conference, Neely faxed a series of documents [Doc. No. 179, Ex. 43] to Zaccari and Gaskins regarding various BOR policies.
Meanwhile, after leaving the third meeting with Zaccari, McMillan attended a scheduled counseling with Barnes on the same day. During her meeting with Barnes, McMillan and Barnes discussed his issues with Zaccari. Further, McMillan specifically inquired as to whether Barnes was planning or thinking about hurting Zaccari. Barnes responded that he had made "no direct or indirect threats to [the] President" and that he "would not harm self or others" [Doc. No. 179, Ex. 20 at 16-17]. McMillan then requested that Barnes be careful in the future so that the behaviors and mannerisms he used in expressing his views could not be perceived by other as aggressive or threatening.
On April 30, 2007, Dr. Winders re-evaluated Barnes in person. As result of the re-evaluation, Dr. Winders increased Barnes's medication to target his symptoms of anxiety, depression, and obsessiveness. Following the in-person evaluation, Dr. Winders sent McMillan a letter on May 2, 2007, which described the re-evaluation and concluded, "There was nothing during the interview that led me to think that [Barnes] was a danger to himself or others. He also appeared to be able to care for himself. He specifically stated that he did not want to hurt anyone or himself" [Doc. No. 179, Ex. 42]. Further, Winders spoke with McMillan by phone on May 2, 2007, and confirmed his beliefs to her.
On May 3, 2007, Zaccari led a meeting which was attended by Boyd, Keppler, Mast, Major Farmer, Police Chief Scott Doner, Gaskins, Dr. Tanner, and Dr. Morgan.
One day after the May 3 meeting, Zaccari directed Gaskins to prepare a memorandum with a draft of a proposed withdrawal letter for Barnes. More specifically, Zaccari instructed her to impose two conditions for Barnes's readmission to VSU, including: "(1) A correspondence from a non-university appointed psychiatrist that you are not a danger to yourself and others; [and] (2) documentation from a certified mental health professional indicating that during your tenure at Valdosta State you will be receiving on-going therapy" [Doc. No. 179, Ex. 2]. Gaskins drafted the requested memorandum to Zaccari's specifications, but on the top of the document, she wrote,
[Doc. No. 179, Ex. 45].
On May 7, 2007, Gaskins met with McMillan, Keppler, and Morgan to discuss the possible withdrawal of Barnes. During the meeting, McMillan reiterated to the others that she did not feel that Barnes was a threat. On the same day, Barnes received a notice, signed by Zaccari, underneath his dorm room door. The notice stated that he had been administratively withdrawn from VSU, and it had his
Shortly after receipt of the expulsion notice, Barnes contacted McMillan and Dr. Winders to inform them of the situation and in an effort to gain the documentation necessary to be reinstated at VSU.
On May 21, 2007, Barnes appealed his administrative withdrawal to the BOR. In response to the appeal, Zaccari submitted a letter to the BOR defending his position. Barnes's appeal was heard by the BOR in August 2007. After being heard by the BOR, Barnes's appeal was referred to an Administrative Law Judge. On January 17, 2008, after Barnes had filed the instant lawsuit, the BOR rescinded Barnes's administrative withdrawal without comment.
Barnes's complaint was filed on January 9, 2008, and contained a total of seven counts. In the court's November 19, 2008, order [Doc. No. 37] ruling on the defendants' motion to dismiss, the court dismissed Counts 1 and 2 based upon Eleventh Amendment Immunity for the BOR and VSU and dismissed Dr. Victor Morgan as a defendant in this case. Therefore, the remaining claims in Barnes's lawsuit include: Count 3 (Liability under 42 U.S.C. § 1983 for Free Speech Clause violation) and Count 4 (Liability under 42 U.S.C. § 1983 for Violation of Substantive and Procedural Due Process Rights) against the individual defendants; and Count 5 (Breach of Contract), Count 6 (ADA claim), and Count 7 (Rehabilitation Act claims) against the BOR and VSU. The plaintiff and all of the remaining defendants have filed motions for summary judgment.
Rule 56(c) of the Federal Rules of Civil Procedure authorizes a court to enter summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." The party seeking summary judgment bears the burden of demonstrating that no dispute exists as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). This burden is discharged by "`showing'—that is, pointing out to the district court—that there is an absence of evidence to support [an essential element of] the nonmoving party's
Once the moving party has adequately supported its motion, the nonmovant has the burden of showing that summary judgment is improper by coming forward with specific facts showing a genuine dispute. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Ultimately, the court's function is not to resolve issues of material fact, but rather to determine whether there are any such issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Facts that are disputed, but which do not affect the outcome of the case, are not material and thus will not preclude the entry of summary judgment. Id. at 248, 106 S.Ct. 2505. Genuine disputes are those in which "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.
In her brief, McMillan contends that the court should grant her motion for summary judgment on the two counts remaining against her, Count 3 (Liability under 42 U.S.C. § 1983 for Free Speech Clause violation) and Count 4 (Liability under 42 U.S.C. § 1983 for Violation of Substantive and Procedural Due Process Rights). More specifically, McMillan argues that Barnes has not produced any evidence to support his claims that she retaliated against him for expressing his beliefs regarding the parking garage at VSU or violated his procedural and substantive due process rights. Moreover, McMillan highlights Barnes's testimony during his deposition in which he states, "I don't have any specific evidence for [McMillan] releasing information prior to my administrative withdrawal in retaliation for my beliefs regarding the parking garage, to my knowledge." Next, McMillan maintains that it is undisputed that Zaccari alone made the decision to withdraw Barnes. Finally, McMillan points out that the undisputed evidence established that she was at a conference held on St. Simons Island, Georgia on May 3, 2007, when Zaccari announced his withdrawal decision to various VSU staff members.
In response, Barnes asserts that McMillan is liable for Counts 3 and 4 of this lawsuit and that her motion for summary judgment should be denied. According to Barnes, McMillan is liable under 42 U.S.C. § 1983 because she participated in, and contributed to, the series of events that led to Barnes's expulsion from VSU. Further, McMillan, who was quite familiar with the rules regarding confidentiality, nevertheless disclosed sensitive information without a waiver to Zaccari, knowing full well how the President planned to use it. Finally, Barnes argues that the sensitive mental health information provided by McMillan to Zaccari "became the linchpin of Zaccari's rationale for withdrawing Barnes."
In order to prove a First Amendment Retaliation claim, the plaintiff must establish: (1) that his speech or act was constitutionally protected, (2) that the defendant's retaliatory conduct adversely affected
[Doc. No. 1, p. 13, ¶ 38]. In sum, Barnes claims that all of the individual defendants are liable because they conspired to retaliate against his constitutionally protected speech by having him administratively withdrawn from VSU.
Conspiring to violate another person's constitutional rights under the First Amendment violates 42 U.S.C. § 1983. See Dennis v. Sparks, 449 U.S. 24, 27, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). To establish a conspiracy under § 1983, the plaintiff must show, among other things, that the defendants "reached an understanding to violate [the plaintiff's] rights." Rowe v. City of Fort Lauderdale, 279 F.3d 1271, 1283 (11th Cir.2002). Thus, there must be some evidence of an agreement between the defendants. Bailey v. Board of County Commissioners of Alachua County, 956 F.2d 1112, 1122 (11th Cir.1992) ("The linchpin for conspiracy is agreement, which presupposes communication."). Further, for a conspiracy claim to survive a motion for summary judgment, "[a] mere `scintilla' of evidence . . . will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990). Finally, merely "string[ing] together" adverse acts of individuals is insufficient to demonstrate the existence of a conspiracy. Harvey v. Harvey, 949 F.2d 1127, 1133 (11th Cir. 1992).
After reviewing the parties' briefs and the evidence in this case,
In Count 4 of the complaint, Barnes claims that all of the defendants are liable under 42 U.S.C. § 1983 for violating his substantive and procedural due process rights. More specifically, Barnes claims, "Students at public universities enjoy a protected property interest in their education such that due process must be afforded them prior to the denial of those interests. At a minimum, this includes notice and an opportunity to be heard" [Doc. No. 1, p. 27, ¶ 92]. According to Barnes, "[a]t no time have Defendants provided Barnes with these essential rights." Id. at ¶ 93.
Barnes argues that McMillan (and all the other individual defendants) violated his substantive due process rights under the Fourteenth Amendment by administratively withdrawing him from VSU. The substantive component of the Due Process Clause recognizes a limited class of "rights that a state may not remove, regardless of the process, as well as actions that can not be countenanced, regardless of the appropriateness of the process." McKinney v. Pate, 20 F.3d 1550, 1560 n. 15 (11th Cir.1994). A school's decision to suspend a student is an executive act, see id. at 1557 n. 9, and executive acts "contravene substantive due process rights only if, in the Supreme Court's words, the right affected is `implicit in the concept of ordered liberty.'" C.B. v. Driscoll, 82 F.3d 383, 387 (11th Cir.1996) (quoting Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937)). Because "[p]ublic education is not a `right' granted to individuals by the Constitution," Plyler v. Doe, 457 U.S. 202, 221, 102 S.Ct. 2382, 72 L.Ed.2d 786 (1982), "the `right' to avoid school suspension may be abridged as long as proper procedural protections are afforded." Driscoll, 82 F.3d at 387; see also Plyler, 457 U.S. at 221, 102 S.Ct. 2382 ("The right to attend a public school is a state-created, rather than a fundamental, right for the purposes of substantive due process."); San Antonio Independent
In order for Barnes's claim of denial of his Procedural Due Process Rights under the Fourteenth Amendment to succeed under § 1983, Barnes must show that each defendant, acting under color of state law, deprived (or caused to be deprived) Barnes's constitutional rights to due process. See Edwards v. Wallace Community College, 49 F.3d 1517, 1522 (11th Cir. 1995). Prior to examining the evidence and determining whether any questions of fact exist regarding the individual defendants' roles in the alleged deprivation, the court will first determine if Barnes was entitled to any due process rights as a student at VSU.
In the court's November 19, 2008, order ruling on the defendants' motions to dismiss, the court held that the case law in the Eleventh Circuit "clearly recognize[s] the existence of some . . . procedural due process rights for college students when facing disciplinary action" [Doc. No. 37, p. 23]. Furthermore, all of the cases cited in the VSU Defendants' briefs, which were binding on this court and involved the removal or withdrawal of a college student, support the same conclusion—that a college student is entitled to notice and some sort of hearing prior to removal, expulsion, and/or disciplinary action.
Regarding McMillan, Barnes must show how McMillan deprived him of his rights to notice and an opportunity to be heard prior to the withdrawal. After reviewing all of the parties' briefs and arguments therein, the main issue before the court is whether Barnes adequately established a causal link between McMillan's actions as a counselor at VSU and the deprivation of Barnes's procedural due process rights prior to his withdrawal.
The Eleventh Circuit Court of Appeals addressed the issue of causation in a § 1983 claim in Dixon v. Burke County, Georgia, 303 F.3d 1271 (11th Cir.2002). In Dixon, a vacancy on the Board of Education for Burke County, Georgia occurred after the death of a white, male, board member in 1999. In response to the vacancy, the Georgia Secretary of State ordered that the 19 members of the Burke County Grand Jury select someone to fill the vacancy. The Grand Jury's selection would then be submitted to a Georgia Superior Court Judge for approval. Eleven people applied for the vacant Board of Education position, including the plaintiff. Prior to the 19 members of the Grand Jury convening to vote and decide the replacement, the District Attorney for the judicial circuit for Burke County orally recommended to the members of the Grand Jury that it should select someone of the same race and gender as the board member who had passed away. After the Grand Jury selected a white male to fill the vacant position, the plaintiff, a female applicant, filed a lawsuit under § 1983 against the District Attorney and others. In ruling that the plaintiff had failed to establish a causal connection between District Attorney's actions and the alleged violation of the plaintiff's constitutional rights, the Eleventh Circuit Court of Appeals held,
Dixon, 303 F.3d at 1275 (citations omitted).
With the principles of Dixon in mind, the court concludes that Barnes has failed to meet the causation requirement with regard to his claim that McMillan deprived him of his substantive and procedural due process rights.
In her brief in support of her motion for summary judgment as to Counts 3 and 4, Gaskins argues that she did not participate in the decision to administratively withdraw Barnes, other than to repeatedly and consistently offer her legal counsel that Barnes's due process rights had to be respected in any withdrawal procedure. Additionally, Gaskins points out that she had no authority to withdraw any student and was never asked for her opinion or advice about whether Barnes should be withdrawn. In sum, Gaskins maintains that her role in this entire matter was limited to offering legal advice about the due process and equal protection concerns raised by any student withdrawal, and the decision of whether to accept that advice or reject it was Zaccari's alone. Therefore, Gaskins argues that she is entitled to judgment as a matter of law.
In response, Barnes argues that Gaskins knew that actions taken against him regarding the withdrawal were wrong, and through her acts and omissions, Gaskins shares responsibility for the deprivation of Barnes's rights. According to Barnes, Gaskins is liable despite her warnings because she assisted in implementing the withdraw decision. Barnes maintains that (a) Gaskins is precluded from immunity where, as here, she knowingly participated in a course of action that violated Barnes's rights, and (b) Gaskins failed to adhere to her legal obligations to bring the Barnes matter to the attention of higher authority. Accordingly, Barnes contends the court should deny Gaskins's motion for summary judgment.
As discussed more thoroughly above in Part IV., Paragraph B., Barnes claims that the all of the defendants, including Gaskins, are liable because they conspired to retaliate against his constitutionally protected
With regard to Gaskins, neither the undisputed facts nor any other evidence supports the conclusory allegation that she made an agreement with anyone to violate Barnes's constitutional rights.
[Doc. No. 179, Ex. 45]. This final written warning came after multiple verbal alerts by Gaskins but was still insufficient to deter Zaccari in his mission to have Barnes withdrawn. Therefore, all of the evidence produced in this case supports a finding that Gaskins did not reach an agreement with anyone to retaliate against Barnes for exercising his constitutional rights. Accordingly, the court grants Gaskins's motion for summary judgment as to Count 3.
In order for Gaskins to be liable for Count 4 of the complaint, Barnes must show how Gaskins deprived him of his right to notice and an opportunity to be heard prior to Barnes's withdrawal. Thus, as more thoroughly discussed above in Part IV., Paragraph C., Barnes must establish an adequate causal link between Gaskins's conduct and the alleged failure to provide notice and a hearing. Dixon, 303 F.3d at 1275.
In Dixon, the Eleventh Circuit held that an attorney who "merely advised" the grand jury could not be held liable under § 1983 because "the causal connection between [the attorney's] words and [the selection by the Grand Jury] is severed by
The VSU Defendants argue that they are entitled to judgment as matter of law on Counts 3, 4, 5, 6 and 7. More specifically, as to Count 3 (First Amendment Retaliation claim), the VSU Defendants argue that Barnes's speech constituted "fighting words" and, therefore, was not protected; they further argue that there was no evidence of retaliation against Barnes or that Mast or Keppler took any action. Regarding Count 4 (Violation of Procedural Due Process Rights), the VSU Defendants contend that they are entitled to qualified immunity because their decisions and actions were made in reliance upon legal advice, and Barnes received procedural due process. With regard to the Count 5 (Breach of Contract), the VSU Defendants maintain that VSU is an improper party and no written contract existed. Finally, in their arguments for summary judgment on Counts 6 (ADA claim) and 7 (Rehabilitation Act claim), the VSU Defendants contend Barnes failed to show that he is disabled and also failed to adequately allege that he was subjected to unlawful discrimination because of his alleged disability.
In response, Barnes argues that the VSU Defendants' arguments as to Count 3 fail because his speech was protected as a matter of law, and it is undisputed that the defendants retaliated against him. Regarding Count 4, Barnes asserts that the undisputed facts show that his substantive and procedural due process rights were violated. Next, Barnes argues that he had a contract with VSU and the BOR, and those defendants breached that contract by not following the procedures for student discipline and expulsion. Finally, Barnes argues that he is a "qualified individual" under the ADA and the Rehabilitation Act and that the defendants admit that they discriminated against him because of his disability.
As discussed above in both Part IV., Paragraph B. and Part V., Paragraph B., Barnes's complaint alleges that all of the individual defendants participated in a conspiracy to retaliate against Barnes for exercising his rights under the First Amendment. In order to prevail on such claim of conspiracy, Barnes has the burden of proving that each of the defendants conspired
Mast was the Dean of Students at VSU in 2007 and attended (1) the meeting between Zaccari and Barnes on April 16, (2) Zaccari's first meeting regarding Barnes on April 20, (3) Keppler's meeting on April 25, and (4) the May 3 meeting at which Zaccari announced to various staff members his decision to withdraw Barnes. Beyond his attendance at those 4 meetings, the facts also show that Mast agreed with the consensus of the attendees at the Keppler meeting that Zaccari's response to Barnes was an overreaction. Finally, Mast explained to Zaccari during at least one of the meetings that some kind of hearing would be involved if Mast were overseeing a disorderly conduct withdrawal.
Based upon these facts and all other evidence taken in a light most favorable to Barnes, the court concludes that there is an absence of evidence to support a claim that Mast agreed with anyone to retaliate against Barnes for speaking out against Zaccari's parking garage plan by withdrawing him as a student at VSU. This conclusion is further supported by the fact that Barnes failed pointed to any evidence to support a finding that Mast made an agreement with Zaccari or anyone else. When Barnes was questioned about what facts he had to base his claim against Mast, Barnes responded,
Barnes Depo. [Doc. No. 179, Ex. 4 at 197-98]. Finally, and most importantly, given that the undisputed facts show that Zaccari acted alone in making his decision to withdraw Barnes, there is simply no evidence to support the conclusion that Mast reached an agreement with anyone to retaliate against Barnes. Accordingly, the court grants judgment as a matter of law as to Count 3 in favor of Mast.
The court's review of the facts and evidence regarding Keppler leads to the same conclusion reached regarding McMillan, Gaskins, and Mast—there is an absence of evidence to support Barnes's conclusory allegation that Keppler agreed with anyone to retaliate against Barnes. Specifically, the evidence reveals that Keppler was the Vice President for Student Affairs at VSU in 2007, and he attended several of the meetings regarding Barnes. On April 25, Keppler himself called a meeting with Mast, Richard Lee, and Erin Sandonato, and during the meeting the attendees reached a consensus that Zaccari's response to Barnes was an overreaction. On April 26, Keppler attended Zaccari's third meeting regarding Barnes. At that meeting, Keppler voiced disagreement with Zaccari's opinion that Barnes's Facebook collage was an indirect threat but agreed with Dr. Morgan's position that Barnes could not be withdrawn from VSU for mental health reasons. Finally, at the May 3 meeting, Keppler reiterated his position against the withdrawal after Zaccari announced he was going to withdraw Barnes. Barnes has not pointed to or produced any other evidence to suggest that Keppler reached an agreement with Zaccari or any other defendant to retaliate against Barnes. Accordingly, the court grants judgment as a matter of law as to Count 3 in favor of Keppler.
With regard to Zaccari and the allegation of a conspiracy, the court's review of the evidence in a light most favorable to Barnes reveals that there is an absence of evidence to support a finding that Zaccari made an agreement with anyone else to retaliate against Barnes for exercising his freedom of speech rights. Conversely, the parties have declared in their statements of undisputed facts and throughout their briefs that Zaccari acted alone in making the decision to administratively withdraw Barnes. Further, as explained in the liability analysis of McMillan, Gaskins, Mast, and Keppler, all of the other individual defendants disagreed with the withdrawal decision. Simply put, Zaccari did not participate in any sort of conspiracy because no one would agree with decision to withdraw Barnes. Therefore, the court grants judgment as a matter of law as to Count 3 in favor of Zaccari.
In his arguments that Mast and Keppler are liable for violating his procedural due process rights, Barnes primarily focuses on the omissions and lack of action by the Dean of Students (Mast) and the Vice President for Student Affairs (Keppler) to support their respective liability. However, as explained in Dixon and discussed above,
In Barnes's claim in Count 4 against Zaccari, it is undisputed that Zaccari was acting under color of state law. Regarding the second element of the claim, Barnes alleges the violation of his procedural due process rights as a college student under the Fourteenth Amendment. Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The court has already concluded in Part V., Paragraph C., (2.), (a.) that Barnes, as a VSU student, was entitled to notice and a hearing. The undisputed facts in this case show that prior to Zaccari's withdrawal decision, Barnes did not (a) receive any notice of the allegations and charges against him or (b) have an opportunity to respond to those allegations and charges in some sort of hearing.
The court is unpersuaded by Zaccari's argument that he is entitled to qualified immunity because he "sought out legal
The VSU Defendants contend that VSU should be dismissed from this action because the university is not a properly named party. The court agrees. Under Federal Rule of Civil Procedure 17, the capacity to be sued is determined by state law. Dean v. Barber, 951 F.2d 1210, 1214-15 (11th Cir.1992). Under Georgia law, "[t]he government, control, and management of the University System of Georgia and all of the institutions in said system shall be vested in the Board of Regents of the University System of Georgia." Ga. Const. Art. 8, § 4 ¶ I(b). As a result, the Board of Regents is the proper party to sue under state law, not VSU. McCafferty v. Medical College of Georgia, 249 Ga. 62, 287 S.E.2d 171, 174 (1982) ("[T]he power to sue and be sued . . . has been . . . vested in the Board of Regents."), overruled on other grounds, Self v. City of Atlanta, 259 Ga. 78, 377 S.E.2d 674, 676 (1989). Therefore, the court dismisses VSU as a named party in this action.
In Count 5 of the complaint, Barnes alleges that the BOR is liable for breach of contract. More specifically, Barnes claims that the BOR and VSU policies found in the VSU Student Handbook establish a binding agreement between the BOR and Barnes. In its motion for summary judgment, the BOR argues that they are entitled to judgment as a matter of law on Barnes's breach of contract claim because Barnes has failed to meet his burden of proof in proving that a contract existed or that any contract was breached.
Under O.C.G.A. § 50-21-1(a), the BOR, as an entity of the state, waives its immunity from breach of contract claims that are based upon written contracts. Therefore, the issue now before the court is whether the VSU Student Handbook constitutes a valid, written contract between Barnes and the BOR. Under Georgia law, "[t]o constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms
Georgia Courts have not specifically determined whether a student handbook issued at one of Georgia's public state universities and colleges constituted a valid, written contract. However, the Georgia Court of Appeals has held that private universities in Georgia formed contracts with their students via the student handbook issued during the student's enrollment. Morehouse College, Inc. v. McGaha, 277 Ga.App. 529, 627 S.E.2d 39, 42 (2005) (recognizing the breach of contract was Morehouse's failure to abide by the hearing procedures in its student handbook); Kuritzky v. Emory University, 294 Ga.App. 370, 669 S.E.2d 179 (2008) (recognizing an expelled student's right to bring a breach of contract action against a private educational institution for failure to abide by the hearing procedures set forth in the student handbook); Life Chiropractic College, Inc. v. Fuchs, 176 Ga.App. 606, 337 S.E.2d 45, 48 (1985) (holding that a provision in a private university bulletin contractually obligates the institution to provide only those procedures specifically provided for in the bulletin itself). Furthermore, the court notes that there was nothing in the VSU Student Handbook disclaiming that the document established a contract between the student and the university. See Carr v. Board of Regents of University System of Georgia, 249 Fed. Appx. 146, 150 (11th Cir.2007) (concluding that the undergraduate catalog did not form a binding written contract between the plaintiff and the Board of Regents because each version of the undergraduate catalog contained the statement that it was for "informational purposes only and should not be construed as the basis of a contract between a student and [the Board]").
Based upon the court's application of Georgia's law on valid contracts and the Georgia Court of Appeals's line of reasoning in McGaha, Kuritzky, and Fuchs, the court concludes that the VSU Student Handbook provided to Barnes upon enrollment constituted a valid, written contract between Barnes and the BOR. Therefore, the court denies the BOR's motion for summary judgment as to Barnes's breach of contract claim (Count 5).
In order to establish a prima facie case of discrimination under the ADA, Barnes must demonstrate that he (1) is disabled, (2) is a qualified individual, and (3) was subjected to unlawful discrimination because of his disability. See 42 U.S.C. § 12112(a); Rossbach v. City of
The ADA and applicable regulations define "disability" as: (1) a physical or mental impairment that substantially limits one or more of the major life activities of the individual, (2) a record of such impairment, or (3) being regarded as having an impairment. 42 U.S.C. §§ 12102(1) and (2); 34 C.F.R. 104.3(j)(1); Carruthers v. BSA Advertising, Inc., 357 F.3d 1213, 1215 (11th Cir.2004). According to Barnes, he has been diagnosed with certain psychological disorders, which have been recorded by his treating psychiatrist,
Disability under the first definition above involves a three-step analysis. Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). First, the plaintiff must be impaired. Id. Next, the court must identify the life activity that the plaintiff claims has been limited and determine whether it is a major life activity under the ADA.
The EEOC defines the "substantially limits" phrase to mean "significantly restricted as to the condition, manner or duration under which the average person in the general population can perform the same major life activity." 29 C.F.R. § 1630.2(j)(1). In determining whether an individual is substantially limited, the court considers: "(1) the nature and severity of the impairment; (2) the duration or expected
Here, Barnes has presented evidence of his treatment and the various diagnoses by his treating psychiatrist, but he has failed to offer evidence "that the extent of the limitation [caused by the impairment] in terms of [his] own experience. . . is substantial." Id. To the contrary, the evidence in this case indicates that Barnes has not been "substantially limited" by his alleged disability. Barnes completed paramedic training at Rescue Training Incorporated in 2006 and is a licensed paramedic in the State of Georgia. He graduated from Kennesaw State University after being administratively withdrawn from VSU. And at the time of his deposition in June 2009, Barnes indicated that he was preparing for the law school admissions exam, the LSAT, while working full-time at Children's Healthcare of Atlanta as a paramedic. The court rejects Barnes's assertion that his psychiatric conditions constitute a disability that substantially limits his ability to learn because Barnes failed to offer evidence that his limitation is substantial. Accordingly, Barnes's ADA and Rehabilitation Act claims fail as a matter of law, and the court grants the BOR's motion for summary judgment as to Counts 6 and 7.
For the reasons discussed in Parts IV, V, and VI, the only remaining claims in Barnes's complaint are his Count 4 (§ 1983 Claim for Violation of Procedural Due Process Rights) against Zaccari and Count 5 (Breach of Contract claim) against the BOR. The court denies Barnes's motion for summary judgment on all other counts.
In order for his claim under § 1983 of denial of his Procedural Due Process Rights to succeed, Barnes must show that Zaccari, acting under color of state law, deprived Barnes of his constitutional rights to due process. See Edwards, 49 F.3d at 1522. It is undisputed that Zaccari acted under color of state law as the President of VSU. Next, the court has concluded as a matter of law that, as a VSU student, Barnes's due process rights required that he receive pre-withdrawal notice of the charges against him and some kind of hearing. The undisputed facts
In Count 5 of the complaint, Barnes claims that the VSU Student Handbook constituted a valid, written contract with the BOR, and he was damaged as a result of the BOR's breach of that contract when it failed to provide Barnes with the procedural processes outline in the handbook prior to his withdrawal.
Once a contract has been shown, the elements of a right to recover for the breach of said contract are (1) the breach and (2) the resultant damages to the party who has the right to complain about the contract being broken. Graham Brothers Construction Co. v. C.W. Matthews Contracting Co., 159 Ga.App. 546, 284 S.E.2d 282 (1981). Regarding the first element, Barnes asserts that the BOR breached the contract terms of the VSU Student Handbook by not abiding by the rules and processes to be used in disciplinary hearings. [Doc. No. 179, Ex. 37, p. 64]. Specifically, the Student Handbook provides, in relevant part, that an "accused student, . . . shall be notified in writing of specific charge(s) made against them and of the date, time, and place where a hearing will be held." Id. It is undisputed that Barnes did not receive notice of the charge that he was "a clear and present danger" prior to Zaccari deciding to withdraw him, and Barnes was denied any opportunity to address the "clear and present danger" charge at a hearing. Therefore, the court concludes as a matter of law that the BOR breached its contract with Barnes and therefore grants Barnes's motion for summary judgment as to Count 6 against the BOR.
Dr. Matthew Norman was identified by the VSU Defendants as an expert witness in this case, and they intended for Dr. Norman to testify about the reasonableness of the action of Zaccari, McMillan, and Dr. Winders. However, because the court has granted summary judgement as to all the pending counts, Dr. Norman's testimony is no longer necessary. Accordingly, the court dismisses as moot Barnes's motion to exclude [Doc. No. 164].
For the reasons set for above, the court hereby:
— DENIES Gaskins's motion for oral argument [Doc. No. 175];
— GRANTS McMillan's motion for summary judgment [Doc. No. 167];
— GRANTS Gaskins's motion for summary judgment [Doc. No. 174];
— GRANTS in part and DENIES in part the VSU defendants' motion for summary judgment [Doc. No. 177]. Specifically, the court grants the motion with regards to Count 3 against Mast, Keppler, and Zaccari, Count 4 against Mast and Keppler, and Counts 6 and 7 against the BOR. The court denies the motion with regards to Count 4 against Zaccari and Count 5 against the BOR;
— GRANTS in part and DENIES in part Barnes's motion for summary judgment [Doc. No. 179]. Specifically, the court grants the motion with regards to Count 4 against Zaccari and Count 5 against the BOR. The court denies the motion with regards to all other counts; and,
— DISMISSES as moot Barnes's motion to exclude [Doc. No. 164].
Having resolved all pending claims in this lawsuit as a matter of law, the only remaining issue in this case is damages. The court directs the parties to file their proposed pre-trial order no later than 30 days of the date of this order.
