ERIC F. MELGREN, District Judge.
Pro se Plaintiff Robert M. Brown brings suit against sixteen Defendants, including the University of Kansas. He alleges under 42 U.S.C. § 1983 a deprivation of due process of law regarding a property and liberty interest. He also asserts state claims of wanton and gross negligence, tortious interference with prospective business advantage, and civil conspiracy. Defendants now bring a motion for summary judgment. Because the Court concludes that no genuine issue of material fact remains as to any of Plaintiff's claims, the Court grants Defendants' Motion for Summary Judgment.
The required rules for summary judgment motions in the District of Kansas are set forth in D. Kan. Rule 56.1. Under that rule, a party is required to set forth a concise statement of material facts in separately numbered paragraphs and must refer to record with particularity.
Although Plaintiff is pro se, and the Court must afford him some leniency in his filings,
The University of Kansas, a state educational institution and separate state agency, is funded in part by the State of Kansas. The Kansas Board of Regents controls and supervises the University of Kansas. The University of Kansas, School of Law ("the School of Law" or "Law School"), is an academic unit within the University of Kansas.
Andy Tompkins is the President and CEO of the Kansas Board of Regents. Bernadette Gray-Little, Chancellor of the University of Kansas, assumed her duties as Chancellor in August 2009, and she is an employee of the University of Kansas. Joyce McCray Pearson was a faculty member, and thus an employee, of the School of Law in 2009-2010. Pearson was also the Chair of the University Judicial Board during 2009-2010. Wendy Rohleder-Sook was employed by the School of Law as Associate Dean for Student Affairs in 2009-2010.
Plaintiff Robert Brown filed an application for admission to the School of Law on April 8, 2009. The application contained the following questions under "Character & Fitness":
Brown answered "no" to these questions.
The application also included the following certification, which Brown acknowledged by his electronic submission of the application:
Brown also submitted the "Certification Letter," which he signed, with his application, and this letter included the following statements:
On April 15, 2009, Brown was offered a spot on the School of Law's waitlist. On April 21, 2009, Brown accepted the placement on waitlist by submitting the Law School's standard form. By letter dated May 17, 2009, Brown provided additional materials to supplement his application for admission to the School of Law, including a statement about his specific interest in the School of Law and additional optional essay.
On August 19, 2009, Brown was offered admission to the School of Law's fall 2009 entering class. Brown submitted a seat deposit fee waiver form to the School of Law on August 20, 2009, and was admitted. The first day of classes for the Fall 2009 academic term at the University of Kansas was August 20, 2009.
On August 27, 2009, after the start of classes at the School of Law, Brown submitted a letter stating that he would like to amend his law school application. He stated that he did not consider his entire lifespan when he previously answered the questions. Amending his answer to question 27, he disclosed the following criminal convictions:
Case No Tribunal Charge Finding 96DV290 Jo Co Dist Ct Domestic Battery Guilty 96DV740 Jo Co Dist Ct Domestic Battery Guilty 90? ? ? ? Jo Co Dist Ct DUI Guilty 79? ? ? ? Shawnee Co DUI Guilty8
On August 27, 2009, in response to Brown's letter, Associate Dean Wendy Rohleder-Sook asked Brown to provide a further explanation regarding the criminal matters that he had disclosed on that date. Dean Agrawal was involved in this decision to request more information regarding Brown's prior convictions.
On September 3, 2009, Associate Dean Rohleder-Sook made another request to Brown asking him to provide further explanation regarding the criminal charges that he had disclosed. On September 11, 2009, Brown provided a letter in which he provided additional information concerning those facts. In this letter, Brown asserted that his alcohol related offenses were a long time ago at a time in which he exercised poor judgment. Brown also stated that although he was found guilty on the domestic battery cases, the allegations of domestic violence were untrue.
On October 2, 2009, Associate Dean Rohleder-Sook emailed Brown to advise him that additional charges ("12/05/94, Battery, dismissed by prosecutor; 12/21/94, Battery, dismissed by prosecutor; and 4/23/04, Criminal Trespass, dismissed by prosecutor")
On October 7, 2009, the School of Law requested copies of records from the Johnson County District Court Clerk's Office. Sometime thereafter, the Clerk's Office provided a copy of the trial record for the prosecutions in the DV290 and DV740 domestic battery charges against Brown.
On November 30, 2009, Dean Agrawal, Associate Dean Rohleder-Sook, and Associate Dean Mazza conferred about presenting the matter to the admissions committee. Also, on that date, Dean Agrawal and Associate Dean Rohleder-Sook decided to defer reconvening the admissions committee until after the break.
Brown was allowed to continue in classes pending the School of Law's review of his application falsification. He sat for finals in December 2009 and received grades for the fall semester of 2009. Brown then began the spring semester in January, 2010.
On January 19, 2010, the 2008-2009 Law School Admissions Committee convened to consider the status of Brown's application and determined that they would have rejected his application had they known of the criminal charges he failed to disclose. Following the Admissions Committee's decision, Associate Dean Rohleder-Sook consulted with Associate Dean Mazza, who advised that Brown would be afforded due process through the Law School Dispute Resolution Procedure. To initiate that process, Associate Dean Rohleder-Sook had to file a complaint regarding Brown's failure to disclose his criminal history on his application.
On February 17, 2010, Associate Dean Rohleder-Sook collaborated with Associate Dean Mazza, and then filed with Associate Dean Mazza, a letter with the reference "Allegation of Academic Misconduct: Robert M. Brown." This letter outlined Brown's answers to questions 27c and 27d on his law school application for admissions as the basis for the complaint against him. During the pendency of the School of Law's allegation of academic misconduct, Defendant Mazza communicated with Brown via emails that had the subject line "Disciplinary Procedures."
On February 23, 2010, Brown met with Associate Dean Mazza. Brown responded to Rohleder-Sook's February 17, 2010, academic misconduct charges, in a written response dated February 28, 2010. In this letter, he asserted numerous reasons as to why he believed the complaint was procedurally improper.
On April 14, 2010, Associate Dean Mazza emailed Brown and informed him that after hearing back from the University of Kansas's General Counsel's office, Associate Dean Rohleder-Sook would be filing a response denying his procedural objections. Associate Dean Mazza also stated that the next step would be to schedule a
On April 16, 2010, Associate Dean Mazza and Brown again corresponded by email. Brown stated that he was waiting for the response to his procedural objections and that he had not been informed of the specific University Code, University Senate Rules and Regulations ("U.S.S.R."), or Honor Code provision that he had violated. Associate Dean Mazza replied to Brown stating that he would forward Associate Dean Rohleder-Sook's response once he had it and that it was his understanding that the provision upon which the charges were based would be included in that response. Associate Dean Mazza also proposed to schedule the hearing during the week of May 10, 2010 — after the conclusion of the examination period. Brown responded that he would not agree to a hearing on the merits until his procedural objections had been resolved. Associate Dean Mazza again opposed Brown's request.
On April 19, 2010, Associate Dean Rohleder-Sook placed a response to Brown's procedural objections in his School of Law mailbox. This response was dated April 16, 2010, and it was signed by Rohleder-Sook. Associate Dean Mazza helped draft this written response. On April 19, 2010, Associate Dean Mazza also provided Brown with the name of the hearing panel chair and explained that all subsequent communications regarding this matter should be between Brown and the hearing panel chair.
A hearing panel was convened to consider the academic misconduct charge against Brown. Between April 19, 2010, and the time the hearing panel issued its decision on May 3, 2010, it met three or four different times. Brown never appeared before the hearing panel and heard no more regarding the complaint until late May.
On May 3, 2010, the hearing panel issued its decision and dismissed the academic misconduct claim against Brown. In this Memorandum decision, the panel stated, in part: "The complaint fails to allege a violation of Section 2.6.1 or, to use the words of U.S.S.R. Section 6.5.3.1(d), any other University rule. Therefore, we hereby dismiss Dean Wendy Rohleder-Sook's complaint of February 17, 2010."
Dean Rohleder-Sook's formal involvement with Mr. Brown's application and failure to disclose his criminal history in that application concluded with the May 3, 2010, Memorandum decision. Following the receipt of the hearing panel's Memorandum, Associate Dean Mazza and Dean Agrawal determined that the issue of Brown's misrepresentations in his application for admission was Dean Agrawal's responsibility to decide. Dean Agrawal sought the legal advice of the University's Office of General Counsel.
On May 26, 2010,
On May 31, 2010, Brown addressed a letter to the "Chair of the University Judicial Board," and he submitted a "Request for Initial Hearing before the Judicial Board Pursuant to 6.4.3.1(b) of the University Senate Rules and Regulations and Election to Invoke the Jurisdiction of the University Judicial Board Pursuant to University of Kansas Law School Dispute Resolution Procedure Section (A)(4)(c)."
In a letter dated June 3, 2010, Joyce McCray Pearson, Chair of the University Judicial Board, informed Brown:
Pearson had no knowledge of Brown prior to his May 31, 2010, filings with the University Judicial Board.
On June 7, 2010, Dean Agrawal wrote Brown to advise him that he was dismissed from the School of Law, effective June 8, 2010. Dean Agrawal consulted with the Office of General Counsel in composing her June 7, 2010, dismissal letter. This letter stated, in part, that the School of Law's transcript would show that Brown's dismissal from the Law School was based on "falsification, misrepresentation, and failure to supply required information on [his] application to the School of Law."
At Brown's deposition, he acknowledged his criminal history: 1979 arrest for DUI in Topeka, which was pled down to reckless driving; 1982 or 1984 arrest for DUI in Topeka for which he received a diversion; 1986 arrest for DUI in Overland Park for which he was convicted and sentenced to two days in jail, community service, and a 90-day suspension of his driver's license; during the period of 1994-96, he was arrested on three separate occasions and charged with four charges of domestic battery, resulting in convictions on three of those charges; and a 1999 DUI in Kansas City, Missouri, but the charge was dismissed.
Brown acknowledged, during his deposition, that at the time he answered "no" to questions 27c and 27d on his application for admission that he had incidents in his history that were responsive to those questions. Specifically, with regard to question 27c, he stated that he knew that he had been charged with, and arrested for, domestic
On November 9, 2010, Plaintiff, proceeding pro se, filed suit against seventeen Defendants.
Plaintiff brings four claims against Defendants Mazza, Agrawal, Rohleder-Sook, and McCray Pearson: (1) a denial of a property and liberty interest without due process pursuant to 42 U.S.C. § 1983, (2) wanton and gross negligence, (3) tortious interference with prospective business advantage, and (4) civil conspiracy. He seeks injunctive relief and damages in excess of $2 million dollars. Defendants now seek summary judgment on all claims asserted against them.
Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.
Plaintiff brings four claims against Defendants: (1) denial of a property and liberty interest without due process pursuant to 42 U.S.C. § 1983, (2) gross and wanton negligence, (3) tortious interference, and (4) civil conspiracy. The Court will address each claim in turn.
Initially, the Court must address the Defendants at issue with regard to this claim. "The elements necessary to establish a § 1983 ... violation will vary with
In this case, at Plaintiff's deposition, he testified that the Board of Regents' members had no knowledge of him or his claims until he served them with this lawsuit. In addition, he admitted that the Kansas Board of Regents took no overt action against him.
Plaintiff brings a § 1983 procedural due process claim on the basis that he had a property interest in his continued enrollment in the School of Law and that he had a liberty interest in the right to pursue a lawful calling of his own choosing that Defendants violated when they dismissed him from the School of Law.
"An essential principle of due process is that a deprivation of life, liberty or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'"
"[P]roperty interests are `not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....'"
In this case, Plaintiff contends that he possessed a property interest in his continued education at the School of Law. Plaintiff paid his tuition and ultimately went through two semesters of law school.
Although Plaintiff also asserts that he possessed a liberty interest in the right to pursue a lawful calling of his own choosing,
"The root requirement" of the due process clause is that an individual be afforded "an opportunity for a hearing before
In this case, the parties disagree as to whether Defendants' decision was academic or disciplinary. Defendants contend that although Plaintiff's wrongful and deceptive conduct was the triggering event for his dismissal, the case involves a determination about his qualifications for admission to KU's School of Law. Plaintiff asserts that his expulsion, based on falsification and misrepresentation on his law school application, is disciplinary. He further argues that Defendants communicated with him about "disciplinary procedures." The Court agrees with Plaintiff and concludes that Defendants' action was a disciplinary one.
Defendants' procedure, however, satisfied due process requirements for disciplinary dismissals. As noted above, disciplinary actions require that an individual be given notice of the charges and the opportunity to be heard regarding those charges. A formal hearing is not necessarily required. Dean Agrawal's May 26, 2010, letter provided Plaintiff notice that she intended to dismiss him, effective June 8, 2010, for "falsification, misrepresentation, and failure to supply complete, accurate and truthful answers" in his application for admission to the School of Law. Her four-page letter specifically detailed the charges against him and the events that had occurred throughout the school year with regard to those charges. This letter also stated that Plaintiff could provide a written response by Thursday, June 3, 2010, if he believed that his dismissal was inappropriate or if there were mitigating circumstances. Thus, her letter provided notice of the charges against him
Plaintiff provided his response to her May 26, 2010, letter on May 27, 2010. Plaintiff complained that the appropriate procedures were not followed. Plaintiff failed to address the substantive allegations against him, although he was given the opportunity, and failed to controvert the charges against him. Indeed, the charges were true. There is no dispute that Plaintiff lied on his law school application and that he did not disclose his criminal history. After Dean Agrawal received Plaintiff's letter, she noted in her June 7, 2010, dismissal letter that he failed to address the charges against him. Thus, he was heard on the issue.
Plaintiff argues that his due process rights were violated because the School of Law failed to follow its (and the University of Kansas's) own rules and regulations in dismissing him. The law is clear, however, that the failure to follow its own regulations does not, by itself, give rise to a constitutional violation.
In Goss, the Supreme Court was concerned with a student's right to "avoid unfair or mistaken exclusion from the educational process,"
Plaintiff claims that Defendants Mazza, Agrawal, Rohleder-Sook, and McCray Pearson had a legal duty to know the basic constitutional rights of students, and they violated this duty when they dismissed him from law school without providing due process of law. He claims that Defendants intentionally disregarded, with malicious intent, his constitutional
Plaintiff asserts that Defendants Mazza, Agrawal, Rohleder-Sook, and McCray Pearson interfered with his legitimate business expectancy of having a successful law career. The required elements for a tortious interference with business advantage claim are:
In addition, a plaintiff must demonstrate that the defendant acted with malice.
Plaintiff cannot demonstrate a genuine issue of material fact as to the elements of this claim. First, Plaintiff cannot demonstrate a reasonable expectancy in practicing law. He also cannot demonstrate that but for the conduct of Defendants, he was reasonably certain to have realized this expectancy. Finally, he cannot demonstrate intentional misconduct, or malice, by Defendants. Thus, Defendants are entitled to summary judgment on this claim.
Plaintiff also claims that Defendants Mazza, Agrawal, Rohleder-Sook, and McCray Pearson conspired with each other to deny his due process rights. Civil conspiracy requires "(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds in the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof."
