Opinion
Case No. 3:03CV7197
April 5, 2004
ORDER
This case arises from the dismissal of plaintiff Sean Flaim, a former medical student, from the Medical College of Ohio ("MCO") following his felony conviction for attempted aggravated drug possession. This Court has jurisdiction pursuant to 28 U.S.C. § 1331, 1332. Pending is defendants' motion to dismiss. For the reasons that follow, the motion will be granted.
BACKGROUND
Plaintiff became a medical student at MCO in 1999. In October, 2001, during his third year of medical school, plaintiff and his roommate, Wade Schwendemann (a fourth-year medical student), were charged with drug-related criminal violations. These charges related to several different types of drugs, drug paraphernalia, a large amount of cash, and a firearm found by Toledo police during a search of plaintiff's off-campus apartment. Thereafter, MCO sent letters to both students, notifying them they were on suspension and that, in light of the pending criminal charges, an investigation was being commenced.
Specifically, the police report inventoried the following items: Ecstacy (hallucinogen), powder cocaine (stimulant), D.O.B. (hallucinogen), L.S.D. (hallucinogen), ketamine powder, marijuana, an electronic scale, various drug paraphernalia, $9511 in cash, and a 9 mm Ruger handgun.
A Lucas County, Ohio, grand jury indicted the plaintiff on four felony drug counts: two counts of aggravated possession of drugs (third degree felonies); one count of possession of LSD (fifth degree felony); and one count of possession of cocaine (fifth degree felony). In June, 2002, plaintiff entered a guilty plea, pursuant to plea agreement, to a lesser included offense of attempted aggravated possession of drugs (fourth degree felony), and was sentenced to two years of community service. Plaintiff's roommate was indicted on one misdemeanor count of possession of drug paraphernalia. According to plaintiff, his roommate was permitted to resume class attendance, with some restrictions, as early as November, 2001, and graduated with his class in 2002.
Plaintiff elected not to pursue any MCO processes related to his suspension until after entering his guilty plea. Between October, 2001 and June, 2002, plaintiff alleges that he sought certification from MCO to take the United States Medical Licensing Exam, Step 1 ("USMLE"). MCO did not respond to those requests.
Plaintiff told MCO in June, 2002, that the criminal matters were resolved, and requested a hearing. The hearing was set for June 28, 2002. Plaintiff visited MCO on June 26th and received copies of the documents which would be presented by the school at the hearing. MCO had notified plaintiff that he could have an attorney at the hearing. The attorney was not, pursuant to MCO policy, permitted to speak at the hearing.
If MCO counsel had been present, plaintiff's attorney would have been allowed to speak on plaintiff's behalf.
A Toledo police officer involved in the criminal investigation testified. Plaintiff claims he was not permitted to cross-examine the officer. Plaintiff was then given an opportunity to speak and was questioned by the administration. While testifying, plaintiff alleges that he mentioned his support of the "Dance Safe" organization, and thereafter was questioned regarding that support. At the conclusion of the hearing, plaintiff was told he would receive notice of the committee's recommendation and the Dean's decision.
Plaintiff alleges that this particular organization supports "the public health" by providing "literature, education and counseling regarding the use of both illegal and legal drugs" by "sell[ing] or hand[ing] out kits of a chemical test that allows users of illegal drugs to test and identify the makeup of a wide variety of drugs, ensuring that they do not take something that has been misidentified, counterfeited, contaminated or has otherwise been tampered wit, thereby mitigating a frequent cause of drug overdose and death." (Doc. 11, ¶¶ 92, 94).
Plaintiff alleges that prior to the June 28th hearing he heard from a classmate that rumors were circulating that he was "selling crack cocaine out of his house" and that the administration had debated "when" they should "kick out" plaintiff. (Doc. 11, ¶¶ 21-22, 27). Plaintiff also alleges that Dean Metting (Dean of Student Affairs) referred to him as "someone distributing drugs" days prior to the hearing. (Doc. 11, ¶ 137).
On July 9, 2002, plaintiff received a letter dismissing him from MCO. The letter stated that the committee had recommended and the Dean had decided to dismiss him for `Violation of institutional standards of conduct." (Doc. 11, ¶ 44). Plaintiff asked to meet with the Dean to discuss the reasons for his dismissal. He was told that MCO had a "zero-tolerance" policy for students in his situation, and that further communication should be directed to William Connelly, MCO's general counsel. Plaintiff asked if there was any way to appeal the decision, and was told there was no appeal.
STANDARD OF REVIEW
No complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiff's claim that, construed in plaintiff's favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion brought under Fed.R.Civ.P. 12(b)(6), the court's inquiry is limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D. Ohio 1996). Further, undisputably authentic documents submitted by a defendant, which are both referenced in and central to the complaint, but are not attached to it, can be considered by the Court without transforming the Rule 12 motion into a Rule 56 motion. See Helwig v. Vencor, Inc., 210 F.3d 612, 615 n. 13 (6th Cir. 2000), reversed on other grounds on rehearing en banc, 251 F.3d 540 (6th Cir. 2001); see also MacArthur v. San Juan County, 309 F.3d 1216, 1221 (10th Cir. 2002). Such documents are not considered to be "matters outside the pleadings." Id.; see also Fed.R.Civ.P. 12(b).
The parties spend much time arguing whether consideration of the public records of plaintiff's and his roommate's criminal charges requires transformation of the motion to a Rule 56 motion. Under the above-cited precedent, it does not. A cursory review of the amended complaint shows that plaintiff referred to his criminal charges/proceedings/record at least ten times in the complaint's first nine pages. (Doc. 11, ¶¶ 14, 17, 18, 19, 29, 30, 32, 33, 40, 41). Those charges are central to the complaint, and defendant's inclusion of an copies of state court documents relating to those charges does not require conversion of this motion to a Rule 56 motion. Plaintiff does not dispute the authenticity of the copies.
The court must accept all the factual allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in the light most favorable to the plaintiff. Sheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
DISCUSSION A. Preliminary Matters
Plaintiff consents to dismissal of MCO as a party to this lawsuit and of Count Nine, in its entirety; and Counts Ten through Fourteen, without prejudice to plaintiff pursuing these claims in state court pursuant to Pennhurst State School Hospital v. Haldernman, 465 U.S. 89 (1984).
Dismissal of MCO eliminates the need to address its Eleventh Amendment immunity arguments.
This will be treated as a voluntary dismissal, without prejudice, as to Counts Ten, Eleven, Twelve, Thirteen, and Fourteen, pursuant to Fed.R.Civ.P. 41(b).
Plaintiff's opposition to the motion to dismiss also states that Counts One, Three, Five, and Seven (relating to reinstatement, rehearing, and the USMLE examination) seek only prospective injunctive relief against the individual defendants in their official capacities. Counts Two, Four, Six, and Eight, seeking monetary damages, including punitive damages, are alleged against the individual defendants in their individual capacities. Counts Fifteen and Sixteen (seeking an apology or other equitable relief not requiring official action) are likewise alleged against the individually-named defendants in their individual capacities.
I note that the even-numbered counts in the first eight counts of the complaint restate the substantive right named in the preceding odd-numbered count. For instance, Counts One and Two both claim the denial of plaintiff's due process rights, but simply request different relief; Counts Three and Four both claim the denial of plaintiff's right to counsel but request different relief; Counts Five and Six both claim the denial of plaintiff's right to equal protection, but request different relief; and Counts Seven and Eight both claim that plaintiff suffered retaliation for exercising his right to free speech, but claim different relief. Thus, the complaint asserts four substantive claims requiring analysis: due process, right to counsel, equal protection, and retaliation for exercising free speech.
B. Counts One, Three, Five, and Seven, against Defendants in Official Capacities
As noted above, plaintiff brings four allegations regarding substantive constitutional claims: a due process violation under the Fourteenth Amendment, a right to counsel allegation under the Sixth Amendment, a claim under the Equal Protection Clause in the Fourteenth Amendment, and a First Amendment claim for retaliation for exercising his free speech rights. Defendants object to each claim on various grounds, including that the complaint fails on each count to state a claim under which relief can be granted. Each claim will be considered in turn.
Plaintiff's clarification of his complaint negates the need for this court to address several of defendants' arguments, including Eleventh Amendment immunity and its intricacies.
1. Count One — Due Process
Plaintiff claims that defendants denied him his substantive and procedural due process rights under the Due Process Clause in the Fourteenth Amendment by: not giving him adequate or timely notice of the charges against him, not allowing him to cross-examine the "principal accuser" at the hearing (i.e., the Toledo police officer), not allowing him to be represented by counsel, not reducing the committee's findings to written findings of fact and/or recommendations, and not allowing him an administrative appeal.The Fourteenth Amendment to the United States Constitution provides that no state shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1. It is undisputed that plaintiff has a property interest in his medical school education sufficient to invoke the Due Process Clause.
It is clear that some process is due a student undergoing dismissal/expulsion proceedings at a state supported institution of higher learning. See, e.g., Goss v. Lopez, 419 U.S. 565, 576 n. 8 (1975). The issue before this court, then, is what process is due. The Supreme Court's decision in Mathews v. Eldridge, 424 U.S. 319 (1976), provides the analytical framework for determining the "specific dictates of due process" in any given case:
Plaintiff spends much time setting forth his property interest in continued education at MCO. While his property interest is not in dispute, and is protected by the Due Process Clause, that protection is not as expansive as rights that might arise from other sources, such as contractual rights. Breach of a contractual right does not ipso facto establish a constitutional violation. See, e.g., DeSantis v. Hafner Creations, Inc., 949 F. Supp. 419, 423 n. 9(E.D. Va. 1996); Van Harken v. City of Chicago, 906 F. Supp. 1182, 1190 (N.D. Ill. 1995) ("while the United States Constitution provides a solid floor of constitutional protections, the States may build a ceiling of protection over that federal floor. ");United States v. Hammad, 858 F.2d 834, 839 (2d Cir. 1988) ("The Constitution defines only the `minimal historic safeguards' which defendants must receive rather than the outer bounds of those we may afford them.") (citation omitted).
This court, accordingly, is concerned with what rights, at the very minimum, the Constitution required MCO to afford the plaintiff, not what rights he wanted to have had, or what additional rights MCO may have included in its contract beyond those required by the Constitution.
[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and the administrative burdens that the additional or substitute procedural requirement would entail.Id. at 334-35. As the Court stated, "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Id. at 333 (citation omitted).
The Court in Goss explained, in the context of a ten-day suspension from high school, that, at minimum, the student is entitled to "some kind of notice" and "some land of hearing." Goss, supra, 419 U.S. at 579. The Court specifically indicated that a case involving a more severe penalty (such as expulsion or long-term suspension) might require more in terms of due process; however, the Court declined to state what additional process might be due in such circumstances.
Lower federal courts have filled in the contours that Goss left undefined. In doing so, they have tended to reject claims that severe sanctions, such as expulsion, can be imposed only after the equivalent of a trial, or incorporation of trial-like protections into due process hearings at an academic institution. See, e.g., Nash v. Auburn University, 812 F.2d 655 (11th Cir. 1987) (one-year suspension of graduate students charged with academic dishonesty were not entitled to a list of witnesses, summary of their testimony, full cross-examination of testifying witnesses, adherence to formal rules of evidence, or de novo review of final decision); Foo v. Trustees of Indiana University, 88 F. Supp.2d 937 (S.D. Ind. 1999) (an undergraduate student accused of various acts of misconduct and subject to progressive discipline leading to dismissal was not entitled under the Due Process Clause to detailed notice that he was being accused formally of serious violations of school rules with severe consequences, more time between notice and hearing, or advance notification of a right to appeal dismissal to a review board); Jaksa v. Regents of the University of Michigan, 597 F. Supp. 1245 (E.D. Mich. 1984) (one-semester suspension of undergraduate student accused of cheating was not entitled to compliance with all procedures in school's disciplinary manual, provision of transcript of hearing, allowance of representative at hearing, or detailed statement of reasons explaining panel's finding).
In light of these cases, plaintiffs complaint fails to state a claim for relief under the Due Process Clause. Plaintiff cites no case which has extended the scope and reach of the Due Process Clause as broadly as he contends.
Thus, with regard to plaintiffs claim of inadequate notice, it is clear that plaintiff received notice of the charges and the hearing, and that he voluntarily chose to delay his hearing until after his criminal proceedings terminated. In addition, he received copies of the documents that the school presented at the hearing, and, prior to the date of the hearing, he had conversations with administrators about what the hearing would entail. This was considerably more than the bare minimum required by the Due Process Clause. Cf. Foo, supra; Nash, supra.
In addition, the Ma thews factors do not weigh in favor of granting to plaintiff more notice than he received. First, while plaintiff's interest in continued education is certainly important, there is little, if any, risk of erroneous deprivation of his rights, and little, if any, value in granting him more notice than he received. MCO certainly has an interest in not expending any more resources in additional notice requirements when the notice it provided is not only adequate, but clearly informative of what was being charged, when the hearing would be, and what would be at issue at the hearing.
Plaintiff claims that defendant McGinnis assured him that, under MCO's due process policy, a the committee would forward a written recommendation to the administration. Even assuming such assurance was given, and, assuming, further, that such policy required a written report, the plaintiff cannot prevail. No such written recommendation is required by the Due Process Clause, and breach of an institutional policy or oral assurance does not rise to the level of a constitutional violation.
Further, the Ma thews factors do not weigh in favor of finding that the promise/policy was constitutionally required. First, it is unclear what interest plaintiff has in a requirement that the committee's recommendation to the Dean be reduced to writing, given that a recommendation was, in fact forwarded to the Dean. There is little to no risk of erroneous deprivation of his rights without the recommendation being in writing, since the committee itself is not the final decision-maker, and plaintiff admits that he received written notification of his dismissal from the Dean.
Two federal courts have held that due process does not impose such an obligation to prepare a written statement of reasons. See Jaksa, 597 F. Supp. at 1253-54 ("In analyzing the need for a detailed statement of reasons [for the suspension decision]. . . . I am not persuaded that plaintiff has a constitutional right to such a statement. . . . Articulating the obvious to plaintiff would not reduce a risk of erroneous deprivation of plaintiff's rights."); see also Herman v. University of South Carolina, 341 F. Supp. 226, 232 (D.S.C. 1971) ("There is no requirement in law or reason that suggests or demands the Board to issue written findings of fact or conclusions of law similar to those required by Rule 52 of the Federal Rules of Civil Procedure.").
Plaintiff has failed to show that he did not receive the process he was due in terms of the recommendation forwarded from the committee to the Dean. Indeed, it appears to this court that he received precisely what he was due: namely, a recommendation from the committee to the Dean, who made a final decision and sent written notification of his decision to plaintiff. The Constitution requires no more.
With regard to the claim that plaintiff was entitled to an administrative appeal of the final dismissal decision, he fails to cite any binding legal precedent that the Constitution requires such an appeal. Further, several federal courts have held that where the original hearing comports with due process, no appeal is required by the constitution. See Foo, 88 F. Supp.2d at 952 ("If the [hearing] satisfied the requirements of due process, then due process would not require an appeal."); see also Smith on behalf of Smith v. Severn, 129 F.3d 419, 428-29 (7th Cir. 1997) ("Due process does not require review by a school board. . . . The completely gratuitous review by the school board neither is required by due process nor gives rise to any due process rights."); Winnick v. Manning, 460 F.2d 545, 549 n. 5 (2d Cir. 1972) ("Winnick had no constitutional right to review or appeal after the disciplinary hearing which satisfied the essential requirements of due process."). In other words, under the second Mathews factor, no value, in constitutional terms, would be added by imposing additional procedures when the initial proceedings afford due process.
Plaintiff cites an unpublished Ohio Court of Appeals case (Chan v. Miami University, 1993 WL 379141 (Ohio App., Sept. 28, 1993)) for the broad proposition that "[d]ue process includes an appeal." Any such statement in Chan is dicta, as the court was not discussing the requirements of the Due Process Clause, but rather whether a teacher could maintain a state law breach of contract claim. The only discussion in Chan regarding due process was whether the lower court had jurisdiction over the teacher's due process claim. Further, the court's citation in Chan's to State ex rel. Poe v. Jones, 51 Ohio St. 492 (1894), is questionable, as the Ohio Supreme Court in Poe did not hold that an appeal was required to satisfy due process in that case.
In this case, because I find that the plaintiff's complaint itself shows conclusively that the procedures implemented by MCO in plaintiff's dismissal process comported with due process, plaintiff has failed to establish a due process violation from the lack of an appeal. He received the process due to him under the Constitution; he is not entitled to more process than he received.
Finally, I note that plaintiff's complaint alleges not only procedural but substantive due process rights to the entitlements he is claiming. However, the "touchstone" for a substantive due process analysis asks whether the government official abused his or her power in a way that "shocks the conscience." County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). It is not enough that some type of negligence is alleged; the government official's behavior must be outrageous and egregious to the reasonable mind. Id.; see also Dunn v. Fairfield Community High School District, 158 F.3d 962, 965 (7th Cir. 1998) ("[I]f a police officer's `precipitate recklessness' which caused the deprivation of someone's life was not sufficiently shocking to [establish a] substantive due process [violation], then it would be nearly absurd to say that a school principal's decision effectively to give two students an `F' in Band class did."). In light of my finding that plaintiff received all the procedural process he was due, it is clear that plaintiff could not establish a substantive due process violation on the facts as presented in his complaint. There is nothing conscience-shocking to be found anywhere in plaintiff's factual allegations, which I accept as true for purposes of this motion.
In summary, plaintiff has failed to state a claim for relief under the Due Process Clause. Count One must therefore dismissed.
2. Count Three — Right to Counsel
Plaintiff next claims that his constitutional rights were violated when MCO did not permit plaintiff's attorney to have an active role in his disciplinary hearing. It is clear from plaintiff's complaint and its attachments that MCO's policy is not to allow a student to have legal counsel at a hearing unless the school also has counsel at the hearing. It is undisputed that MCO's legal counsel was not at plaintiff's hearing. Intertwined in this claim is plaintiff's claim that he had a constitutional right to have his attorney cross-examine witnesses at the hearing.
To the extent that plaintiff bases his claims the Sixth Amendment rights to counsel and to confront the witnesses against him, the claims clearly fail. The Sixth Amendment guarantees such rights, but such limits them to "all criminal prosecutions." U.S. CONST. AMEND. VI. Thus, the Sixth Amendment is not implicated; plaintiff's claim lies, if at all, in the Due Process Clause. See, e.g., Brands v. Sheldon Community School, 671 F. Supp. 627, 630 (N.D. Iowa 1987).
Similar claims have been raised in other cases involving student disciplinary hearings, with varying results. While there is generally a split in the legal precedent as to whether due process requires legal representation at such hearings, the trend in the majority of cases is that due process does not mandate either active participation by counsel at a student's disciplinary hearing or cross-examining by counsel of adverse witnesses. See, e.g., Osteen v. Henley, 13 F.3d 221, 225 (7th Cir. 1993) (holding that while a student may have a right to consult with counsel, that right does not extend to active participation by counsel in hearing, which would create a trial-type proceeding);Newsome v. Batavia Local School Dist., 842 F.2d 920, 925-26 (6th Cir. 1988) (finding no due process violation in disallowing student's attorney to cross-examine witnesses during hearing); Gorman v. University of Rhode Island, 837 F.2d 7, 16 (1st Cir. 1988) (no due process right to active participation of legal counsel in disciplinary proceeding).
The reasoning undergirding these opinions also rests in the Mathews balancing test. These courts have reasoned that while there may be times when legal counsel is constitutionally-required (such as when a student concurrently faces pending criminal charges), disciplinary hearings themselves are not so complex as to require the assistance of counsel. In terms of the Mathews factors, this is based on a finding that the risk of erroneous deprivation is slight, and the burdens of allowing counsel to be involved outweigh any corresponding benefit to the student or the fairness of the proceedings.
I conclude, accordingly, that the Due Process Clause did not require MCO to allow plaintiff's legal counsel to participate actively in disciplinary proceedings. Plaintiff's complaint fails to state a claim for relief as to an alleged due process right to have an attorney actively involved on his behalf, during the hearing. Count Three must therefore be dismissed.
3. Count Five — Equal Protection
Plaintiff claims that his rights under the Equal Protection Clause were violated when the disciplinary proceedings resulted in a lesser sanction for his roommate, who also was convicted of criminal misconduct involving drugs.
The Equal Protection Clause generally protects individuals from government action which treats similarly situated individuals differently. See City of Cleburne v. Cleburne Living Or., 473 U.S. 432, 439 (1985). Absent a suspect classification or a claim that a fundamental right is at issue, claims of unequal treatment are subject to the lowest level of scrutiny, commonly referred to as the "rational basis" test. See Gean v. Hattaway, 330 F.3d 758, 771 (6th Cir. 2003). The rational basis test requires only that the differentiation by the government is "rationally related to a legitimate state interest." City of Cleburne, 472 U.S. at 440. The plaintiff bears the burden of negating "all possible rational justifications for the distinction." Gean, 330 F.3d at 771 (citing Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 367 (2001)).
Plaintiff is not claiming to be a member of a suspect class, and there is no fundamental right to a medical school education. See, e.g., San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 37-38 (1973) (no fundamental right to an education).
Here, the complaint itself and the public records of the two roommates' criminal convictions provide a rational justification for the distinction between plaintiff and his roommate, which plaintiff has failed to negate. The roommate was convicted of a misdemeanor count for possessing drug paraphernalia. Plaintiff was convicted of a felony count of attempted aggravated possession of drugs. MCO, as a school of medicine, can rationally determine that a felony drug count is deserving of a more strict response than a misdemeanor drug paraphernalia count, especially given the role of the medical school in ensuring the accountability and professionalism of its students, and the stigma attached to felony convictions. Doctors routinely handle, have access to, and authorize others to handle and have access to controlled substances. A medical school properly can conclude that a student who has, after several kinds of drugs were found in his apartment, plead guilty to a felony-level drug offense is unsuited for the medical profession.
Plaintiff has not seriously attempted to negate this justification, choosing instead to argue that factually, plaintiff's roommate was just as morally culpable, if not more, for the situation the roommates found themselves in. This factual contention does not, however, override the legal issue at hand — there is a clear justification for the distinction, present in the complaint and the conviction records, which conclusively shows that plaintiff cannot hope to establish an equal protection violation based on his own factual allegations. Because plaintiff has failed to state a claim upon which relief can be granted based on any alleged violation of his equal protection rights, this claim is subject to dismissal.
Therefore, Count Five will be dismissed.
4. Count Seven — Free Speech/Retaliation
Plaintiff claims that his First Amendment rights were violated when he mentioned his support of the Dance Safe organization during his disciplinary proceeding, based on his conjecture that his support of that organization was "likely" a factor in the decision to dismiss him from the medical college.
To establish a claim of First Amendment retaliation, plaintiff must show that: 1) he was engaged in a constitutionally protected activity; 2) the defendants' action caused him to suffer an injury that would likely chill a person of ordinary firmness from continuing to engage in that activity; and 3) the action was motivated at least in part as a response to the exercise of her constitutional rights. See Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001); Leary v. Daeschner, 228 F.3d 729, 737 (6th Cir. 2000). To demonstrate that he was engaged in constitutionally protected speech, plaintiff must show: 1) his speech touched on a matter of public, as opposed to private, concern; and 2) his "interest in commenting on matters of public concern . . . outweighs the interest of the State." Cockrel, 270 F.3d at 1048 (citations omitted).
In Connick v. Myers, 461 U.S. 138, 146 (1983), the Supreme Court held that matters of public concern are those that can "be fairly considered as relating to any matter of political, social, or other concern to the community[.]" The initial inquiry into whether speech touches on matters of public concern is a question of law, not of fact, and is determined by the content, form, and context of a given statement. Connick, 461 U.S. at 147-48. If a plaintiffs speech did not address a matter of public concern, no further inquiry is necessary. Rankin v. McPherson, 483 U.S. 378, 386 n. 9 (1987).
Here, plaintiff has not attempted to show that his mentioning of his participation in the Dance Safe organization constitutes a matter of public concern as a matter of law. Plaintiff merely states that Rule 8 of the Federal Rules of Civil Procedure requires only notice pleading. While that is certainly true, plaintiff fails to acknowledge his obligation to establish the public significance of his comments. Further, the allegations in plaintiff's complaint do not establish that his comments were anything other than his own private concern, offered as a personal justification for his criminal conduct. In the context of his disciplinary hearing following his felony drug conviction, the content of his statements is only marginally relevant. Plaintiff's personal choice to support that organization is just that-personal. And the fact that plaintiff chose to air that personal preference during his disciplinary hearing does not elevate it to a matter of public concern. I find that plaintiff has failed to establish that his statements regarding Dance Safe touched upon a matter of public concern.
However, even if any of plaintiff's speech touched on a matter of public concern, it was not constitutionally protected. If any part of the speech claimed to be protected relates to matters of public concern, the court must conduct a balancing test, as set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968). See Rahn v. Drake Or., Inc., 31 F.3d 407, 411 (6th Cir. 1994). Under Pickering, none of plaintiff's speech was constitutionally protected unless his interest in speaking outweighed the interests of the MCO, as a medical college and arm of the State, in promoting the efficiency and integrity of the public services it provides. See Picketing, 391 U.S. at 568. A court considers the content, form, and context of the statements in making this determination. Speers v. University of Akron, 189 F. Supp.2d 759, 771 (N.D. Ohio 2002).
MCO's interest in the efficient and reputable provision of medical education clearly outweighs any interest plaintiff had in airing his support of the Dance Safe organization. MCO's responsibility and desire to graduate physicians with a respect for the regulation of controlled substances would clearly be disrupted by even an implicit condoning of drug use or abuse in the community. Thus, I find that even if the speech at issue could be considered a matter of public concern, the balancing of interests weighs heavily in favor of MCO rather than plaintiff.
For these reasons, plaintiff has failed to state a claim for relief on his First Amendment retaliation claim, and Count Seven must therefore be dismissed.
C. Counts Two, Four, Six, and Eight, against Defendants in Individual Capacities
The individually-named defendants have raised the defense of qualified immunity to the counts in the complaint alleging violations of plaintiff's constitutional rights, in which plaintiff sues those defendants in their individual capacities under 42 U.S.C. § 1983.
When a state official seeks qualified immunity, "a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive." Saucier v. Katz, 533 U.S. 194, 200 (2001);see also Greene v. Barber, 310 F.3d 889 (6th Cir. 2002). This is because qualified immunity is an immunity from suit, not just a defense to liability. Saucier, 533 U.S. at 201. Plaintiff's assertion that a qualified immunity defense cannot be raised at the motion to dismiss stage is clearly incorrect. See Hardy v. Jefferson Community College, 260 F.3d 671, 677 (6th Cir. 2001).
Under Saucier, 533 U.S. at 201, a court must consider the following factors, and do so in sequence: 1) whether the facts alleged, taken in the light most favorable to the party asserting the injury, establish that the official's conduct violated a constitutional right and, if so, 2) whether that right was clearly established at the time that the injury occurred.
In light of my analysis of plaintiff's due process, right to counsel, equal protection, and First Amendment claims, plaintiff has failed to establish the first factor: namely, that the defendants violated his constitutional rights. Thus, he cannot sue the individually-named defendants in their individual capacities because they are protected by qualified immunity.
Even if plaintiff had established a constitutional violation of his constitutional rights, however, the individually-named defendants would still be entitled to qualified immunity, as plaintiff has failed to cite any precedent showing that any such alleged constitutional violation was clearly established at the time of the hearing. Plaintiff has not cited, and this court has not found, any case law establishing the precise contours of plaintiff's due process claims to additional protections beyond notice and an opportunity to be heard in his expulsion hearing. Thus, qualified immunity would protect the individually-named defendants' reasonable decisions as to what process was required at the hearing.
Counts Two, Four, Six, and Eight must therefore be dismissed, on the basis of qualified immunity.
D. Counts Fifteen and Sixteen, against Defendants in Individual Capacities 1. Count Fifteen — Slander Per Se under Ohio Law
Plaintiff alleges that the "Administration of the College" was responsible for rumors circulating at MCO that plaintiff was "selling crack cocaine out of his house" prior to his expulsion hearing. (Doc. 11, ¶¶ 27, 136). Plaintiff also alleges that defendant Metting referred to plaintiff as "someone distributing drugs" days prior to plaintiff's expulsion hearing. (Id., ¶ 137). Defendants argue that these allegations are insufficient to state a cause of action for slander per se under Ohio law.
In Kanjuka v. MetroHealth Med. Ctr., 151 Ohio App.3d 183 (2002), the Ohio Appeals Court explained the slander per se cause of action under Ohio law:
Defamation is a false publication that injures a person's reputation, exposes him to public hatred, contempt, ridicule, shame, or disgrace, or affects him adversely in his trade or business. Matalka v. Lagemann, 21 Ohio App.3d 134, 136 (1985). The essential elements of a defamation action are a false statement, that the false statement was defamatory, that the false defamatory statement was published, the plaintiff was injured, and the defendant acted with the required degree of fault. Celebrezze v. Dayton Newspapers, Inc., 41 Ohio App.3d 343, 346 (1988). There are two forms of defamation: libel or slander. Generally, slander refers to spoken defamatory words and libel refers to written defamatory words. Retterer v. Whirlpool Corp., 111 Ohio App.3d 847, 857 (1996).
"Defamation may be per se or per quod. Defamation per se means that the defamation `is accomplished by the very words spoken.'" McCartney [v. Oblates of St. Francis deSales, 80 Ohio App.3d 345, 353 (1992).] Defamation per quod means that a statement with an apparently innocent meaning becomes defamatory through interpretation or innuendo. Id. In order for a statement to be defamatory per se, it must "consist of words which import an indictable criminal offense involving moral turpitude or infamous punishment, imputes some loathsome or contagious disease which excludes one from society or tends to injure one in his trade or occupation." Id. With defamation per se, damages and actual malice are presumed.Id. at 191-92 (citations/footnotes shortened for clarification).
Here, it appears that plaintiff's allegations, at least as to defendant Metting allegedly referring to him as someone who was dealing drugs from his home, may sufficiently state a cause of action for slander per se, given plaintiff's assertion that defendant Metting's statement was untrue. However, there is another bar to plaintiff maintaining this claim in this court. The Sixth Circuit has recently held, in a substantially analogous although unpublished case, that claims for defamation under Ohio law must first be brought in state court for a determination of immunity, pursuant to Ohio Rev. Code § 2743.02(tF). See Underfer v. University of Toledo, 36 Fed. Appx. 831, 834-35 (6th Cir. 2002) (unpublished) (university student's claims for defamation and interference with contract must first be brought in Ohio state court; affirming dismissal without prejudice as to those claims). Therefore, I will dismiss Count Fifteen without prejudice.
2. Count Sixteen — Negligent Infliction of Emotional Distress under Ohio Law
Plaintiff alleges that the individual defendants caused him severe emotional distress from their behavior which led to his expulsion. The Ohio Supreme Court has held that a claim for negligent infliction of emotional distress will not lie in circumstances where "the plaintiff neither witnessed nor was exposed to any real or impending physical calamity." Heiner v. Moretuzzo, 73 Ohio St.3d 80, 85-86 (1995); see also McGarry v. Horlacher, 149 Ohio App.3d 33, 45 (2002).
There are no allegations in the complaint which would fit under the definition provided by the Ohio Supreme Court. Count Sixteen fails to state a claim upon which relief can be granted. It will therefore be dismissed, with prejudice.
While the Underfer doctrine, supra, would probably also apply to this count, I find that dismissal without prejudice is inappropriate, since the allegations as to this count fail to state a claim upon which relief can be granted.
CONCLUSION
It is thereforeORDERED THAT defendants' motion to dismiss be and hereby is granted as follows:
1) Defendant MCO be and hereby is dismissed as a party, pursuant to Fed.R.Civ.P. 41(b);
2) Counts One, Two, Three, Four, Five, Six, Seven, and Eight be and hereby are dismissed, with prejudice, pursuant to Fed.R.Civ.P. 12(b)(6);
3) Count Nine be and hereby is dismissed, with prejudice, pursuant to Fed.R.Civ.P. 41(b);
4) Counts Ten, Eleven, Twelve, Thirteen, and Fourteen be and hereby are dismissed, without prejudice to plaintiff pursuing these claims in state court, pursuant to Fed.R.Civ.P. 41(b);
5) Count Fifteen be, and hereby is dismissed, without prejudice, as provided herein;
6) Count Sixteen be and hereby is dismissed, with prejudice, pursuant to Fed.R.Civ.P. 12(b)(6).
So ordered.