Opinion
Civ. No. 98-D-508-N.
January 10, 2001.
Charles R. Godwin, Timothy J. Godwin Atmore, AL, for Plaintiff.
Mark Englehart, BEASLEY, ALLEN, CROW, METHVIN, PORTIS MILES, Montgomery, AL., for Defendants.
Kenneth Lamar Thomas, Robert M. Weinberg THOMAS, MEANS, GILLIS, DEVLIN, ROBINSON SEAY Montgomery, AL., for Defendants.
MEMORANDUM OPINION AND ORDER
Before the court is defendants' Motion To Dismiss Plaintiff's First Amended Complaint ("Mot."), filed April 30, 1999. Plaintiff filed a Brief In Opposition on May 10, 1999. On June 1, 1999, Defendants filed a Supplemental Memorandum In Support Of Motion To Dismiss Plaintiff's First Amended Complaint. After careful consideration of the arguments of counsel, the relevant law and the allegations in plaintiff's First Amended Complaint, the court finds that Defendants' Motion is due to be denied in part and granted in part.
The court notes that, in responding to Defendants' Motion, Plaintiff has attached an affidavit for the court's consideration. On a motion to dismiss, however, the court may not consider matters outside the pleadings. See Garcia, M.D. v. Copenhaver. Bell Assocs., 104 F.3d 1256, 1266 n. 11 (11th Cir. 1997). Neither Plaintiff nor Defendants have asked the court to convert Defendants' Motion to one for summary judgment, and, at this early stage, the court shall not do so. Accordingly, in ruling on Defendants' Motion, the court has considered only the allegations contained in the four corners of Plaintiff's First Amended Complaint.
Defendants also filed a Motion To Dismiss on June 1, 1998 ("1998 Motion"), asking the court to dismiss the original Complaint. When the court allowed Plaintiff to amend her Complaint, Defendants' 1998 Motion became moot, and, in a separate Order, the court has denied the 1998 Motion as such. However, in filing their Motion To Dismiss First Amended Complaint and Supplemental Memorandum, Defendants incorporated by reference the arguments raised in their 1998 Motion. Thus, the court, in ruling on Defendants' Motion To Dismiss Plaintiff's First Amended Complaint, has considered the contentions raised by Defendants in the 1998 Motion.
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1367 (supplemental jurisdiction). The Parties do not contest personal jurisdiction or venue.II. STANDARD OF REVIEW
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure , a defendant may move to dismiss a complaint because the plaintiff has failed to state a claim upon which relief may be granted. See FED. R. Civ. p. 12(b)(6). A Rule 12(b)(6) motion questions the legal sufficiency of a complaint; therefore, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See, e.g., Brower v. County of Inyo, 489 U.S. 593, 598 (1989).
Generally, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Braden v. Piggly Wiggly, 4 F. Supp.2d 1357, 1360 (M.D. Ala. 1998). However, in § 1983 actions where government officials sued in their individual capacities have raised the defense of qualified immunity, the Eleventh Circuit has "tightened" the pleading requirements. GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1367 (11th Cir. 1998). In Oladeinde v. City of Birmingham, the Eleventh Circuit held that in cases where qualified immunity is implicated, "some factual detail is necessary, especially if [the court is] to be able to see that the allegedly violated right was clearly established when the allegedly wrongful acts occurred." 963 F.2d 1481, 1485 (11th Cir. 1992).
III. FACTS
In 1995, Plaintiff Natalie Hamil, a white female, received a minority scholarship to attend graduate school at Alabama State University ("ASU"), "a predominantly black university" located in Montgomery, Alabama. (Am. Compl. ¶¶ 9, 10, 11.) ASU is "a publicly supported, co-educational institution of post-secondary education studies and is approved by the Alabama State Department of Education." (Id. ¶ 6.)
Plaintiff brings this lawsuit against ASU (Id. ¶ 6), ASU's Board of Trustees (Id. ¶ 8), its individual members and officers (Id. ¶¶ 4-5), the Dean (Id. ¶ 2), the Vice President of Academic Affairs (Id. ¶ 7), and the Chair of Instructional Support Programs. (Id. ¶ 3.) Plaintiff's claims arise out of Defendants' refusal to award her a Master of Education degree in school counseling. (Id. ¶¶ 45, 57, 62, 72-75, 87-88.) The individual Defendants, who are named in both their personal and official capacities, are as follows: (1) Daniel R. Vertrees ("Dean Vertrees"), Dean, College of Education (Id. ¶ 2); (2) Doris Vaughn ("Dr. Vaughn"), Ed.D., Chair, Instructional Support Programs (Id. ¶ 3); (3) former Governor Fob James, Joe L. Reed, James A. Smith and William H. Harris, who at all times relevant to this lawsuit were officers of the Board of Trustees (Id. ¶ 4); (4) Richard Arrington, Jr., B. Maxine Coley, James C. Cox, La Rue W. Harding, Toreatha M. Johnson, Larry H. Keener, Patsy B. Parker, Frankye H. Underwood and Donald V. Watkins, who at all times relevant to this lawsuit were members of the Board of Trustees (Id. ¶ 5); and (5) Roosevelt Steptoe, Vice president for Academic Affairs. (Id. ¶ 7.)
On January 6, 2000, Plaintiff filed a Motion, asking the court to substitute the successor and personal representative of Vaughn, who is deceased, in the place of Vaughn. On January 14, 2000, pursuant to Rule 25(a) of the Federal Rules of Civil Procedure, the court granted Plaintiff's Motion. Thus, Vaughn is no longer a party to this action. However, for clarity, in this Memorandum Opinion And Order, the court will refer to Vaughn as the Defendant.
The court shall refer collectively to these sixteen Defendants as "the individual Defendants."
The facts giving rise to this action are as follows. Plaintiff enrolled in the Master of Education school counseling program at ASU and began classes in the Summer of 1995. (Id. ¶ 14.) By the 1996 Fall session, Plaintiff had satisfied all her course requirements for graduation except her practicum in counseling. (Id. ¶ 15.) The practicum in counseling is the final course, and a student may not enroll in it until he or she has completed all other course requirements for the counseling degree. (Id. ¶ 17.) Plaintiff enrolled in the practicum in counseling for the 1996 Fall session. (Id. ¶ 16.)
To successfully complete the practicum, Plaintiff had to perform 300 hours of counseling activities at local elementary, middle and/or high schools under the guidance of on-site counselors and/or supervisors. (Id. ¶¶ 18, 20.) Plaintiff performed 150 hours of her practicum during the 1996 Fall session and 150 hours during the 1997 Spring session. (Id. ¶¶ 21, 25.)
While Plaintiff performed a total of 300 hours, Dr. Vaughn found that Plaintiff successfully completed only 279 hours. (Id. ¶¶ 24-25.) This action arises out of Plaintiff's inability to obtain credit for the final 21 counseling hours of her practicum. As a result, plaintiff received an "incomplete" for her practicum and, thus, was unable to graduate.(Id. ¶¶ 26-27, 29-34.) To complete her practicum requirements, plaintiff met with Dr. Vaughn, who recommended that Plaintiff make up the 21 hours by performing counseling activities with a specified counselor during the 1997 Summer session. (Id. ¶ 29.) After Plaintiff completed those hours, Dr. Vaughn, however, refused to give plaintiff credit. As her reasons, Dr. Vaughn stated that the supervisory counselor with whom she worked was a vocational counselor, not a school counselor, and "that Plaintiff needed to spend more time with students." (Id. ¶ 30.)
As alleged by Plaintiff, the course requirements for the practicum in counseling include the following: "Any student who fails to meet minimal performance expectations will receive an incomplete (I) and will be required to do additional work (agreed upon by the site supervisor, the university supervisor, and the student) to meet these expectations." (Id. ¶ 28.)
Plaintiff then sought and obtained approval from Dr. Vaughn to perform another 21 hours of counseling activities with a different counselor. (Id. ¶ 31.) Plaintiff completed these hours prior to the end of the 1997 Summer session. However, Dr. Vaughn "consistently and continuously" refused to send this counselor an evaluation form so the counselor could evaluate Plaintiff's work. (Id. ¶¶ 32, 33.) As a result, Plaintiff was not eligible to graduate at the end of the 1997 Summer session. (Id. ¶ 34.) Plaintiff asserts that Dr. Vaughn, who is black, refused to certify Plaintiff's final 21 hours on the basis of Plaintiff's race. (Id. ¶¶ 12, 35.)
Additionally, Plaintiff contends that Dean Vertrees refused to "allow Plaintiff to appeal her academic complaint against Dr. Vaughn." (Id. ¶ 48.) Dean Vertrees told Plaintiff "that an incomplete received by a student from a faculty member is not a 'grade' and therefore the faculty member's decision to assign an incomplete is not appealable." (Id.) Plaintiff, however, asserts that she had a right to appeal pursuant to the following provision contained in her Graduate Catalog:
Appeals
All academic complaints should be appealed first to the faculty member involved and the department chairperson. Further appeals should be made to the dean of the respective college and the graduate dean.
(Id. ¶ 67.)
Moreover, Plaintiff contends that she "brought this matter" to the attention of Reed. (Id. ¶ 50.) However, Reed and the other officers and members of the Board of Trustees "have refused and continue to refuse to allow plaintiff any avenue of relief including but not limited to hearings, committee reviews and appeals." (Id. ¶ 51.) Finally, Plaintiff avers that all Defendants "have acquiesced in Dr. Vaughn's exercise of personal bias and/or prejudice and vendetta against plaintiff and have adopted said unprofessionalism toward Plaintiff as their own." (Id. ¶ 52.)
As a result, Plaintiff commenced this lawsuit. In her First Amended Complaint, Plaintiff brings two federal claims for violations of her constitutional rights to substantive due process and equal protection, as enforced by 42 U.S.C. § 1983 (Counts 1 and 2), and one federal claim for a violation of her rights protected by Title VI of the Civil Rights of 1964, 42 U.S.C. § 2000d ("Title VI") (Count 4). (Id. ¶¶ 55-84, 95-104.) Also, Plaintiff brings a state law breach-of-contract claim (Count 3). (Id. ¶¶ 85-94.) Plaintiff demands a trial by jury. (Id. at 20.) As relief, Plaintiff seeks compensatory damages on all counts, punitive damages on all counts except Count 3, a declaratory judgment, a writ of mandamus ordering Defendants to issue Plaintiff a Master of Education school counseling degree, and attorney's fees and costs. (Id. ad damnum clauses following ¶¶ 69, 84, 94, 105, 106, 119.) In response to these allegations, all Defendants named in this action jointly moved to dismiss the claims in plaintiff's First Amended Complaint. The court now turns to the issued raised in Defendants' Motion.
Plaintiff has included her claims for a declaratory judgment, a writ of mandamus and attorney's fees in separate counts (Counts 5, 6 and 7, respectively). The court notes that it is unnecessary to include these prayers for relief in separate counts. While it would be more appropriate for plaintiff to request her relief in the relevant ad damnum clauses of her First Amended Complaint, her failure to do so is not fatal to her requests.
IV. DISCUSSION
As stated, Defendants jointly move to dismiss each of Plaintiff's three federal claims, as well as her state law claim. Defendants raise immunity defenses and also attack the merits of Plaintiff's claims. First, the court will address Defendants' Eleventh Amendment immunity defense. Second, the court will turn to Defendants' arguments as those arguments pertain to plaintiff's § 1983 and Title VI claims. Third, the court will discuss the viability of plaintiff's state law breach-of-contract claim. Fourth, the court will address Defendants' attack on Plaintiff's request for a writ of mandamus.
A. Eleventh Amendment Immunity
1. ASU and the Board of Trustees (Counts 1, 2 and 3)
First, Defendants argue that Plaintiff's claims in Counts 1, 2 and 3 against ASU are barred by the Eleventh Amendment to the United States Constitution. (Doc. No. 5 at 25.) The court agrees. "[A] suit in which [a] State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100 (1984). "This jurisdictional bar applies regardless of the nature of the relief sought" and regardless of whether a plaintiff's claims are brought under federal or state law. Id. State universities, including ASU, "are 'agencies or instrumentalities' of the state, and thus are immune from suit in federal court." University of South Alabama v. American Tobacco, 168 F.3d 405, 412 (11th Cir. 1999) (quoting Harden v. Adams, 760 F.2d 1158, 1163-64 (11th Cir. 1985)); see also Davis v. Alabama State Univ., 613 F. Supp. 134, 139-40 (M.D. Ala. 1985) (citing Harden, supra, wherein the Court held that the Eleventh Amendment bars federal courts from entertaining lawsuits against Troy State University, and finding that Eleventh Amendment immunity extends to ASU because it "is identical to Troy State University in all relevant respects"). Accordingly, the court finds that Counts 1, 2 and 3 are due to be dismissed against ASU.
For brevity, when citing to the various pleadings in the record, the court will refer to the docket numbers assigned to those pleadings ("Doc. No.").
Second, while not raised by Defendants, the court finds sua sponte that the Board of Trustees as an entity has Eleventh Amendment immunity as to Counts 1, 2 and 3. Under the Eleventh Amendment, boards of trustees of state universities are agencies of the state. See Harden, 760 F.2d at 1163-64 (holding that Eleventh Amendment bars suit under § 1983 against Troy State University's Board of Trustees.); see also Davis, 613 F. Supp. at 139-140 (dismissing on Eleventh Amendment grounds the plaintiff's suit against ASU and its Board of Trustees). Based on the foregoing, the court finds that Counts 1, 2 and 3 against the Board of Trustees as an entity are due to be dismissed.
2. The Individual Defendants Sued in their Official Capacities Under 42 U.S.C. § 1983 (Counts 1 and 2)
In Counts 1 and 2, Plaintiff brings claims against the individual Defendants under § 1983, naming them in both their individual and official capacities. The individual Defendants argue that, in their official capacities, they are entitled to Eleventh Amendment immunity on Plaintiff's § 1983 claims seeking both monetary and declaratory relief. (Doc. No. 5 at 27.) The court agrees with the individual Defendants in part.
(a) Monetary Damages
In Counts 1 and 2, Plaintiff asks for compensatory and punitive damages. The Eleventh Amendment prohibits Plaintiff's § 1983 action seeking compensatory and punitive damages against the individual Defendants in their official capacities. See Wright v. Butts, 953 F. Supp. 1352, 1358 (M.D. Ala. 1996). "Lawsuits against a state official in his or her official capacity are suits against the state when 'the state is the real, substantial party in interest.'" Carr v. City of Florence, Ala., 916 F.2d 1521, 1524 (11th Cir. 1990). Where a plaintiff asks for monetary damages from a state employee in his or her official capacity, "the state is considered the real party in interest because an award of damages would be paid by the state." Id. see also Wright, 953 F. Supp. at 1358. Based on these principles, the court finds that plaintiff's § 1983 claims in Counts 1 and 2 against the individual Defendants in their official capacities for compensatory and punitive damages are due to be dismissed. See Gorman v. Roberts, 909 F. Supp. 1493, 1502-03 (M.D. Ala. 1995).
(b) Declaratory relief
Plaintiff also requests declaratory relief. (Am. Compl. ¶ 105.) Specifically, "Plaintiff demands judgment pursuant to 28 U.S.C. § 2201 and 2202 declaring that the actions or omissions to act of the defendants violated the rights of plaintiff to be free from arbitrary state action and to equal protection under the law as guaranteed by the 14th Amendment to the Constitution of the United States. . . ." (Id. The court disagrees with the individual Defendants that they are entitled to Eleventh Amendment immunity as to Plaintiff's request for declaratory relief.
The Eleventh Amendment does not insulate state officials acting in their official capacities from suit for prospective declaratory and injunctive relief to remedy violations of federal constitutional law. As explained by this court in Wright,
in interpreting the Eleventh Amendment, courts distinguish between suits against a state or state agency and those against state employees. When federal rights are asserted against state employees sued in their official capacities, the Eleventh Amendment prohibits claims for retrospective monetary relief (i.e., compensatory and punitive damages) paid from the state treasury but not prospective equitable relief (i.e., declaratory and injunctive relief). See Ex parte Young, 209 U.S. 123 . . . (1908) (holding that a plaintiff seeking prospective relief from the state must name as a defendant a state official rather than the state or a state agency directly even though in reality the suit is against the state).953 F. Supp. at 1358-1359. Based on Ex parte Young, as discussed inWright, the court finds that Plaintiff's § 1983 claims in Counts 1 and 2 seeking declaratory relief against the individual Defendants in their official capacities are proper to the extent that these Defendants are still employed by ASU. Therefore, Defendants' Motion To Dismiss Plaintiff's § 1983 claims on the ground that Plaintiff cannot obtain injunctive relief against the individual Defendants in their official capacities is due to be denied.
Defendants, however, argue that the Eleventh Amendment prohibits plaintiff from receiving declaratory relief based upon the holding inWatkins v. Blinzinger, 789 F.2d 474 (7th Cir. 1986). In Watkins, the plaintiffs were applicants for or recipients of benefits under the federal Aid to Families with Dependent Children ("AFDC") program. The plaintiffs filed a lawsuit challenging the State of Indiana's method of calculating the period that a recipient was disqualified from receiving a lump sum payment. See id. at 475, 483. The plaintiffs asked, in part, for a declaratory judgment that Indiana's lump sum payment violated Title IV of the Social Security Act, 42 U.S.C. § 602, et seq. Id. at 476. While the case was pending on the merits of the complaint, the State of Indiana "discontinued" the challenged practice. Id. at 483. The Seventh Circuit held that, under the Eleventh Amendment, the plaintiffs were not entitled to declaratory relief:
When there is "no ongoing violation of federal law" . . . a suit against a state officer — a suit the decision of which will as a practical matter bind the State — should be treated for what it is: a suit against the State. The Supreme Court accordingly held in Green that when there is no ongoing or impending violation of federal law, a federal court may not issue declaratory or "notice" relief, even though that relief would be "prospective" and would not require payments from the State treasury.Watkins, 789 F.2d at 484 (citing Green v. Mansour, 474 U.S. 64 (1986).
The court finds that this case is distinguishable from Watkins because here ASU has not altered the conduct which Plaintiff claims is unconstitutional. As alleged by Plaintiff, she continues to be deprived of a degree which she otherwise would have obtained if Defendants had not violated her constitutional rights. To date, plaintiff has not received her degree. Thus, assuming as true Plaintiff's allegations in her First Amended Complaint, i.e., that Defendants have prevented and continue to prevent plaintiff from obtaining her degree in derogation of Plaintiff's constitutional rights, the court finds that Plaintiff's alleged violation is ongoing and continuous in nature. Accordingly, the court rejects Defendants' reliance on Watkins.
B. Counts 1 2: 42 U.S.C. § 1983 and Qualified Immunity
Section 1983 provides that
[e]very person who, under color of a statute ordinance, regulation, custom, or usage, of any State . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .42 U.S.C. § 1983. Section 1983 "is not itself a source of substantive rights," rather it provides "a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144 (1979). Here, Plaintiff brings two constitutional claims under § 1983, a Fourteenth Amendment substantive due process claim (Count 1) and a Fourteenth Amendment equal protection claim (Count 2). The remaining Defendants to these counts are the individual Defendants sued in their official capacities for prospective relief and in their individual capacities for monetary relief.
1. Count 1: Fourteenth Amendment Substantive Due Process
In Count 1, Plaintiff alleges a violation of her substantive due process rights, as protected by the Fourteenth Amendment to the United States Constitution. Plaintiff contends that "Defendants" decision to deny her a Master of Education degree in school counseling was "based on improper motive, i.e., personal vendetta, bias and/or prejudice," not on "academic grounds," (Am. Compl. ¶ 57), and that "Defendants" did "not exercise professional judgment in denying Plaintiff her degree." (Id. ¶ 58.) Further, Plaintiff claims that "some administrative remedies have been closed to her"; for example, Dean Vertrees impermissibly would not allow Plaintiff to appeal her academic complaint. (Id. ¶¶ 63, 65.) These actions, according to plaintiff, "have violated Plaintiff's substantive due process right to be free from arbitrary state action." (Id. ¶ 63.)
(a) Failure to State a Claim
In moving for dismissal of Count 1, the individual Defendants argue that plaintiff has failed to state a claim against them in either their individual or official capacities. To state a substantive due process claim, a plaintiff must allege the following two elements: (1) the existence of a protected property or liberty interest; and (2) "arbitrary and capricious conduct on the part of university officials by showing that there was no rational basis for the university's decision or that [the decision] was motivated by bad faith or ill will unrelated to academic performance." Schuler v. University of Minnesota, 788 F.2d 510, 515 (8th Cir. 1986); see also Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 223 (1985); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-539 (1985); Haberle v. University of Alabama in Birmingham, 803 F.2d 1536, 1539 n. 1 1540 (11th Cir. 1986).
Under the first element, the individual Defendants assert that Plaintiff has failed to allege a property or liberty interest which is protected by the Fourteenth Amendment's Due Process Clause. (Doc. No. 5 at 10.) The individual Defendants point out that Plaintiff's substantive due process right is based on a constitutionally protected property interest "in receipt of her degree and in the appeal process set out in the 1995-96 ASU Graduate Catalog." (Doc. No. 5 at 10; see also Am. Compl. ¶ 56 ("Plaintiff has a property interest in her post secondary education and more particularly in her Master of Education School Counseling degree."); Am. Compl. ¶ 65 ("Plaintiff was further denied her right to substantive due process when Dean Vertrees would not allow Plaintiff to appeal her academic complaint against Dr. Vaughan.").) However, the individual Defendants contend that "[n]either the United States Supreme Court nor the Eleventh Circuit has ever held there is any constitutionally protected interest of any type in continued enrollment in college, graduate or professional school." (Doc. No. at 10.) For this proposition, the individual Defendants rely on Ewing, supra, Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 84-85 (1978), and Haberle, supra. In these cases, the Courts assumed, without deciding, that the plaintiff had a protected property interest in his or her continued enrollment in a state university but found the substantive due process claims without merit on the ground that the plaintiff failed to demonstrate arbitrary state action. Indeed, every case the court has uncovered also assumed, without deciding, that "a student who is subject to academic dismissal may maintain a cause of action for the violation of his right to substantive due process." Richmond v. Fowlkes, 228 F.3d 854, 859 (8th Cir. 2000); Hammond v. Auburn Univ., 669 F. Supp. 1555, 1561 (M.D. Ala. 1987), aff'd mem., 858 F.2d 744 (11th Cir. 1988) ("In reviewing the plaintiff's substantive due process claim, this Court must express the same doubts as Justice Powell in Ewing. . ., as to whether or not the plaintiff can even demonstrate a constitutionally protected property or liberty interest in his post-secondary education. But following the United States Supreme Court's lead as well as that of the Eleventh Circuit Court of Appeals, this Court assumes, arguendo, for purposes of this opinion, that a constitutional right is implicated.").
In short, no court has decided whether a protected property interest exists in a student's post-secondary education. Nonetheless, the court finds that dismissal of Plaintiff's claim is not warranted. At this early stage of the litigation, the court gives plaintiff the benefit of the doubt and accepts her argument that she has a protected property interest. Thus, for now, the court assumes, without deciding, that Plaintiff has a protected property interest in her graduate degree from ASU. If necessary and if raised by Defendants at the summary judgment stage, the court will revisit this issue.
Turning to the second element, as stated, Plaintiff must allege that her inability to obtain her graduate degree in school counseling either was arbitrary and capricious or was motivated by bad faith or ill will unrelated to her academic performance. See Schuler, 788 F.2d at 515; see also Ewing, 474 U.S. at 223. Liberally construing plaintiff's allegations to ensure the provision of substantial justice to the adjudication of this case, see FED. R. CIV. P. 8(f), the court finds that plaintiff's allegations are sufficient to survive a motion to dismiss. plaintiff asserts that "Defendants' decision to deny Plaintiff her degree is based on improper motive, i.e., personal vendetta, bias and/or prejudice. Defendants' decision is not based on academic grounds." (Id. ¶ 57.) These allegations focus on the bad faith/ill will component of the second element. All Plaintiff must do at this stage, at least as to plaintiff's claim against the individual Defendants in their official capacities, is set forth a "short and plain" statement, FED. R. CIV. P. 8(a)(1), of her claim for relief. This she has done, and the court finds that her allegations are sufficient to place Defendants on notice of the alleged violation.
(b) Qualified Immunity
In their individual capacities, the individual Defendants contend that they are entitled to qualified immunity. (Doc. No. 5 at 27-33.) The existence of a viable claim against the individual Defendants in their official capacities is not dispositive of the individual-capacity claims. Qualified immunity invokes a different, more stringent test for establishing liability. The individual Defendants argue that, regardless of whether plaintiff has stated a claim for a constitutional violation, plaintiff has failed to allege the violation of a clearly established fundamental right. (Id.) Thus, the individual Defendants assert that they are entitled to qualified immunity. For the reasons to follow, the court agrees.
Qualified immunity is an affirmative defense to a § 1983 action against a government official sued in his or her individual capacity. See Wilson v. Strong, 156 F.3d 1131, 1135 (11th Cir. 1998); see also Hill v. DeKalb Regal Youth Detention Ctr., 40 F.3d 1176, 1184 n. 16 (11th Cir. 1994). The test for whether a governmental defendant is entitled to qualified immunity from liability in his or her individual capacity involves a two-step analysis. The first inquiry concerns "whether the defendant government official was performing a discretionary function."Madiwale v. Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997). Here, neither Plaintiff nor Defendants have challenged the first element of the qualified immunity analysis. Because this element is not at issue, the court presumes, at this stage, that each Defendant was acting within his or her discretionary authority when the alleged unconstitutional acts occurred.
Under the second inquiry, the court must determine whether the applicable law was clearly established at the time of the challenged action. See Godby v. Montgomery Co. Bd. of Educ., 996 F. Supp. 1390, 1400 (M.D. Ala. 1998) (citing Jordan v. Doe, 38 F.3d 1559 (11th Cir. 1994)). This is determined by reference to decisions of the Supreme Court of the United States, the Court of Appeals for the Eleventh Circuit and, in this case, the Supreme Court of Alabama. See D'Aguanno v. Gallagher, 50 F.3d 877, 881 n. 6 (11th Cir. 1995); see also Courson v. McMillian, 939 F.2d 1479, 1498 n. 32 (11th Cir. 1991). The relevant inquiry is "fact specific," Rodgers v. Horsley, 39 F.3d 308, 311 (11th Cir. 1994), and a plaintiff must point to a controlling case, decided before the events at issue, that establishes a constitutional violation on "materially similar" facts. Lassiter v. Alabama A M Univ., Bd. of Trustees, 28 F.3d 1146, 1150 (11th Cir. 1994); see also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (holding that "[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he [or she] is doing violates that right").
The question the court must decide is whether, under the second element, the individual Defendants' alleged conduct violated a clearly established constitutional right of which a reasonable person would have known. The answer is "No."
Plaintiff's substantive due process claim is grounded in an alleged constitutional right to obtain a graduate degree. However, neither the Supreme Court nor the Eleventh Circuit has clearly established that continued enrollment in a post-secondary education program is a property interest protected by the Fourteenth Amendment's guarantee of substantive due process. As discussed, supra, the Supreme Court has twice been faced with the issue of whether a student at a state-supported university has a substantive due process property right in his or her post-secondary education. See Ewing, 474 U.S. at 222; Horowitz, 435 U.S. at 84-85 91. On both occasions, the Court has declined to specifically decide the issue and assumed, for argument only, that such a right existed. Id. Other circuits, including the Eleventh Circuit in Haberle, have followed the Supreme Court's lead. See Haberle, 803 F.2d at 1539 n. 1 (citingEwing and stating that "we assume a property interest, and do not decide the property issue now").
See also Schuler, 788 F.2d at 515 ("Horowitz left open the question of whether a university student subject to academic dismissal may maintain a cause of action for the violation of his or right to substantive due process. Even assuming, however, that such a cause of action does exist, the student would still have to demonstrate arbitrary and capricious conduct on the part of university officials by showing that there was no rational basis for the university's decision or that dismissal was motivated by bad faith or ill will unrelated to academic performance.") (internal citation omitted); Megenity v. Stenger, 27 F.3d 1120, 1124, 1125 (6th Cir. 1994) (in deciding the case on the second prong of the substantive due process analysis, i.e., the arbitrary and capricious prong, the Court stated: "The Supreme Court in Ewing declined to speak definitively on the constitutional rights, if any, that a student at a university may have in his continued enrollment. . . . We see no need in this case to rush in where the Supreme Court feared to tread in Ewing.")
An assumption by the Supreme Court and the Eleventh Circuit that individuals have a protected property right in their continuing post-secondary education is not a holding. An assumption is no more than dicta and, thus, cannot clearly establish the law for purposes of qualified immunity. See Jones v. Cannon, 174 F.3d 1271, 1288 n. 11 (11th Cir. 1999) (Neither Supreme Court nor Eleventh Circuit dicta can clearly establish the law for purposes of qualified immunity.); See also Akins v. Board of Governors, 840 F.2d 1371, 1376 (7th Cir.), vacated on other grounds, 488 U.S. 920 (1988) (In granting qualified immunity on the ground that no case from the Seventh Circuit had established a university student's substantive due process right to continued enrollment in the university's program, the Court stated that in Ewing the Supreme Court "declined specifically to decide the matter.").
Therefore, in the instant case, the court finds that Plaintiff has failed to satisfy the existence of a clearly established federal constitutional right. Because at the time of Plaintiff's alleged substantive due process deprivation, no binding decision had clearly established that the right to pursue a degree in post-secondary education constitutes a protected property interest, the court finds that the individual Defendants are entitled to qualified immunity. Accordingly, the individual Defendants are immune from liability for money damages on Plaintiff's § 1983 claims.
In the previous section, the court found that Plaintiff stated a substantive due process claim at least against the individual Defendants sued in their official capacities. In so finding, the court assumed, without deciding, that Plaintiff had alleged a protected property interest. For qualified immunity purposes, however, even assuming that such a right exists, plaintiff cannot succeed as to her claims against the individual Defendants sued in their personal capacities. The court need not reach the question of whether plaintiff has established the violation of a constitutional right to determine whether the individual Defendants are entitled to qualified immunity. As explained in Spivey v. Elliott, "[o]nce there has been a determination that there is no 'clearly established' right, the parties can accomplish little in pursuing the question of whether there is a right at all. The same parties will win and the same parties will lose regardless of the court's decision on that point." 41 F.3d 1497, 1498-99 (11th Cir. 1995).
Plaintiff also contends that ASU's failure to allow plaintiff to pursue an internal appeal violates her right to substantive due process. To the extent that the analysis is different from plaintiff's allegation that she has a substantive due process right in the award of her degree from ASU, the court finds that the law is not clearly established. Assuming as true plaintiff's allegation, i.e., that Defendants failed to follow ASU's regulations, plaintiff has not cited to, nor has the court discovered, binding authority for the proposition that an individual has a fundamental, substantive due process right to employ a university's internal published appeals process. Likewise, plaintiff, who bears the burden of pointing to a controlling, factually similar case, has not cited any law to support a finding that the law was clearly established.See Santamorena v. Georgia Military College, 147 F.3d 1337, 1340 (11th Cir. 1998) ("To overcome this [qualified] immunity, Plaintiff has the burden of pointing to case law which 'pre-date[s] the offic[ial]'s alleged improper conduct, involve[s] materially similar facts, and 'truly compel[s]' the conclusion that the plaintiff had a right under federal law.'") (quoting Ensley v. Soper, 142 F.3d 1402, 1406 (11th Cir. 1998)). Accordingly, the court finds that the individual Defendants sued in their personal capacities are entitled to summary judgment on the basis of qualified immunity as to Plaintiff's Fourteenth Amendment substantive due process claim based on a protected property interest in ASU's appeals procedures.
2. Count 2: Fourteenth Amendment Equal Protection
In Count 2, Plaintiff claims she was deprived of her right to equal protection under the laws, which presumably plaintiff brings under the Fourteenth Amendment to the United States Constitution. As grounds for this claim, Plaintiff asserts that she was treated differently from "at least four (4) other students similarly situated to Plaintiff." (Am. Compl. ¶ 71.) Plaintiff explains that, while these students were "similarly situated to Plaintiff," each received a degree despite the fact that: one "did not work under a counselor during her practicum"; one "had her practicum requirement waived"; and two students "performed the same counseling activities as Plaintiff." (Id. ¶¶ 72-75.) Also, Plaintiff contends that she "was singled out and victimized by Dr. Vaughn because of Dr. Vaughn's personal bias and/or prejudice and vendetta against Plaintiff." (Id. ¶ 80). Further, Dean Vertrees and the individual Defendants "acquiesced in Dr. Vaughn's exercise of her personal bias and/or prejudice and vendetta against Plaintiff." (Id. ¶ 81.) Finally, Plaintiff alleges that she was "denied equal protection under the law when Dean Vertrees would not allow Plaintiff to appeal her academic complaint against Dr. Vaughn." (Id. ¶ 82.)
Although Plaintiff does not specify in Count 2 that she is bringing her equal protection claim under the United States Constitution, the court finds that it is clear from the nature of the First Amended Complaint that the claim is based on the United States Constitution. In particular, in the relief portion of her First Amended Complaint, Plaintiff states that Defendants "owe Plaintiff equal protection under the law as guaranteed by the 14th Amendment to the Constitution of the United States." (Am. Compl. ¶ 117.)
Defendants assert that plaintiff fails to state an equal protection claim against any Defendant. For the following reasons, the court agrees.
The Equal Protection Clause of the Fourteenth Amendment commands that no state shall "deny to any person within its jurisdiction the equal protection of the law." U.S. CONST. AMEND. 14. In its most general sense, "[t]he Equal Protection Clause 'is essentially a direction that all persons similarly situated should be treated alike.'" Spence v. Zimmerman, 873 F.2d 256, 258 (11th Cir. 1989) (quoting City of Cleburne, Texas v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985)). To state an equal protection claim, Plaintiff must allege that: (1) she is a member of a constitutionally-protected class; (2) was similarly situated to members of an unprotected class; and (3) was treated differently based upon her membership in a constitutionally-protected class, such as race.See Hamlyn v. Rock Isl. County Metro. Mass. Transit Dist., 986 F. Supp. 1126, 1133 (C.D. Ill. 1997). The different treatment must be the result of intentional discrimination. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977) ("Proof of . . . discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.").
First, the court finds that plaintiff's equal protection claim against the individual Defendants fails because plaintiff has not sufficiently pleaded the second element. Plaintiff has not alleged that the four other students, who were similarly situated to plaintiff, are outside Plaintiff's protected class, i.e., are non-whites. Nowhere in her First Amended Complaint does Plaintiff state the race of these students. Thus, the court finds that plaintiff has not sufficiently pleaded the second element of her claim, i.e., that Defendants subjected non-white students to more favorable treatment.
The second element is not the only element upon which Plaintiff's claim fails. Second, and alternatively, as to all Defendants, except Dr. Vaughn and Dean Vertrees (see Am. Compl. ¶¶ 35, 43), Plaintiff has not alleged discrimination against her based upon her membership in a constitutionally-protected class, plaintiff's First Amended Complaint is devoid of any allegation that these Defendants treated her differently on account of her race. The sole allegation as to these Defendants is as follows: "[O]fficers and members of the Board of Trustees, . . . have acquiesced in Dr. Vaughn's exercise of her personal bias and/or prejudice and vendetta against plaintiff and said acquiescence constitutes an adoption by . . . officers and members of the Board of Trustees, . . . of the said unprofessional judgment exercised by Dr. Vaughn." (Id. ¶ 81.)
Nowhere in Count 2 (or in the allegations incorporated in Count 2, see Am. Compl. ¶ 70) does Plaintiff state that the foregoing Defendants' alleged acquiescence in the unequal treatment of Plaintiff was based on her race. Plaintiff's allegations are that Defendants acquiesced in Dr. Vaughn's "personal bias," "prejudice" and "vendetta." (Am. Compl. ¶ 80.) The court finds that "personal bias," "prejudice" and "vendetta" are "broad pejorative words," which fall short of establishing intentional discrimination on the basis of Plaintiff's membership in a protected class. See GJR Investments, 132 F.3d at 1368 (Epithets such as "willful," "malicious" and "improper motive" are insufficient to satisfy the discriminatory intent element of a Fourteenth Amendment equal protection claim.) (quoting Snowden v. Hughes, 321 U.S. 1, 10 (1944)). As such, the court finds that there was no discriminatory intent in which these Defendants could acquiesce. Accordingly, the court finds that Plaintiff has failed to satisfactorily plead the third element of a Fourteenth Amendment equal protection against all individual Defendants, except Dr. Vaughn and Dr. Vertrees.
Third, the court turns to Plaintiff's claim that Dean Vertrees "would not allow Plaintiff to appeal her academic complaint against Dr. Vaughn." (Am. Compl. ¶ 82.) As to this contention, the court finds that Plaintiff has not alleged the second element of an equal protection claim. Namely, Plaintiff's First Amended Complaint contains no allegations that Dean Vertrees treated other similarly situated individuals differently. Plaintiff's allegations of unequal treatment pertain solely to other alleged similarly situated individuals who were awarded a degree (Id. ¶¶ 72-75), not to other similarly situated individuals who were allowed to appeal a grade challenge. As such, the court finds that plaintiff has failed to plead an essential element of this claim against Dean Vertrees.
Alternatively, the court finds that the individual Defendants are entitled to qualified immunity as to Plaintiff's § 1983 equal protection claim against them in their individual capacities. The court's determination that plaintiff has failed to state a claim upon which relief can be granted also means that the individual Defendants are entitled to qualified immunity. As noted by the Eleventh Circuit in GJR Investments, at the motion to dismiss stage, "the qualified immunity inquiry and the Rule 12(b)(6) standard become intertwined." 132 F.3d at 1366; Wooten v. Campbell, 49 F.3d 696, 699 (11th Cir. 1995) The individual Defendants can "defeat" Plaintiff's § 1983 equal protection claim if the First Amended Complaint fails "'to state a claim upon which relief can be granted.'" Id. (citing FED. R. CIV. P. 12(b) (6)). Similarly, "[u]nder the qualified immunity defense, the defendants are immune from liability if [Plaintiff's First Amended Complaint] fails to state a violation of a "'clearly established . . . constitutional right of which a reasonable person would have known.'" Wooten, 49 F.3d at 699 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Thus, where, as here, a plaintiff fails to allege "a violation of a constitutional right at all," that right is not clearly established for qualified immunity purposes. Siegert v. Gilley, 500 U.S. 226, 232 (1991); see also Wooten, 49 F.3d at 699.
C. Count 4: Title VI
In Count 4 of her First Amended Complaint, Plaintiff brings a Title VI claim against ASU, the Board of Trustees, Dr. Vaughn, Dean Vertrees, Steptoe and Reed. (Am. Compl. ¶¶ 99, 103.) Title VI reads: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. "Title VI itself, like the Fourteenth Amendment, bars only intentional discrimination." Elston, 997 F.2d at 1406. Once a plaintiff establishes that the defendant receives federal funds, the analysis of a Title VI intentional discrimination claim mirrors a Fourteenth Amendment equal protection claim. See id. at 1406 n. 11 ("Since Title VI itself provides no more protection than the equal protection clause — both provisions bar only intentional discrimination, . . . we will not engage in a separate discussion of the Title VI statutory claims, as such an inquiry would duplicate exactly our equal protection analysis.).
In addition to prohibiting intentional discrimination, Title VI, through its implementing regulations, "proscribe[s] actions having a disparate impact on groups protected by the statute, even if those actions are not intentionally discriminatory." Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993). Plaintiff, however, brings a claim for intentional discrimination, not disparate impact.
The court finds that plaintiff's Title VI claim is due to be dismissed on two grounds. First, as a preliminary matter, the court agrees with Defendants that only ASU is a proper Defendant under Title VI. (Doc. No. 22 at 2.) Title VI liability is limited to the entity actually receiving federal funds. See Godby, 996 F. Supp. at 1412; see also Wright, 953 F. Supp. at 1350. As explained in Godby, "[b]ecause Title VI liability is based on a contractual-type relationship between the federal government and the receiver of a federal grant, only the local school district which actually receives the federal money may be held liable-not an employee of the entity." 996 F. Supp. at 1423. Based upon Godby, the court finds that ASU is the only proper Defendant and that the Board of Trustees, Dr. Vaughn, Dean Vertrees, Steptoe and Reed are due to be dismissed.
Second, the court's finding that plaintiff failed to state the elements of an equal protection claim necessitates a dismissal also of Plaintiff's Title VI claim. See Elston, 997 F.2d at 1406 n. 11. Namely, as discussed in the previous section, Plaintiff failed to allege that the individuals to whom she is purportedly similarly situated are outside her protected class. Because the elements of an equal protection claim mirror those of a Title VI claim, Plaintiff's Title VI claim must fail. Accordingly, the court finds that Defendants' Motion To Dismiss Plaintiff's Title VI claim is due to be granted.
The court notes that Defendants argue that the specific allegations embodied in Count 4 do not contain any reference to similarly situated individuals. While this is true, in Count 4, plaintiff "realleges all allegations of her complaint." (Id. ¶ 95.) In her equal protection claim, which Plaintiff has incorporated into her Title VI claim, Plaintiff sets forth allegations pertaining to four students who were similarly situated to plaintiff, yet were awarded degrees. (Am. Compl. ¶¶ 72-75.) However, as discussed in the previous section, an allegation that other similarly situated individuals were treated different is insufficient, in and of itself, to state a claim. Plaintiff must also allege that these individuals are outside her protected class. This plaintiff has failed to do.
D. Breach of Contract (Count 3)
In Count 3, Plaintiff brings a supplemental state law claim for breach of contract against all named Defendants. This claim is based on allegations that plaintiff had a contract with ASU by virtue of the 1995/96 Graduate Catalog and that she is entitled to relief for a breach of that contract. (Am. Compl. ¶ 87.) Specifically, Plaintiff asserts that she "entered into a contract whereby if Plaintiff completed all the requirements for a Master of Education School Counseling degree[,] said degree would be awarded to Plaintiff." (Id. ¶ 86.) Plaintiff asserts that, although she "has completed all degree requirements under said contract," Defendants "have withheld Plaintiff's degree." (Id. ¶¶ 87-88.) Further, plaintiff avers that Defendants breached the contract by not allowing her to purse the internal rules on appeals, which are set forth in the Graduate Catalog. (Id. ¶¶ 89-92.)
First, Defendants assert that, if a contract exists, that contract is between plaintiff and ASU, not between Plaintiff and any other named Defendant. Thus, according to Defendants, ASU is the only proper Defendant to a breach-of-contract action. (Doc. No. 5 at 20-22.) The court finds that Plaintiff concedes this point. In her Response, Plaintiff states that she "entered into a contract with ASU." (Doc. No. 7 at 11.) Plaintiff makes no reference to a contract between her and any other Defendant. Accordingly, the court finds that all Defendants, except ASU, are due to be dismissed as to this count.
Second, Defendants contend that ASU is due to be dismissed based on Eleventh Amendment immunity. (Doc. No. 5 at 22.) The court agrees, and it so found in Section IV.A., supra. Accordingly, the court finds that ASU is entitled to Eleventh Amendment immunity on Plaintiff's state law breach-of-contract claim. Accordingly, the court finds that Count 3 is due to be dismissed.
E. Writ of Mandamus
Plaintiff titles Count 7 of her First Amended Complaint as a "Complaint For Writ of Mandamus." In this count, Plaintiff asks the court to order "Defendants to issue to plaintiff her Master of Education School Counseling degree or to appear at a time designated by the Court to show cause why Defendants should not do so." (Am. Compl. ¶¶ 107-119.)
Defendants argue that the remedy of a writ of mandamus, as requested in Count 7., is inappropriate in federal court because the court lacks jurisdiction to grant mandamus relief under the All Writs Act, 28 U.S.C. § 1651. (Doc. No. 5 at 23-24.) The court rejects Defendants' argument that, at this stage, dismissal of Plaintiff's requested relief is warranted.
Plaintiff's request for a writ of mandamus is, in effect, the equivalent of a mandatory injunction to remedy alleged violations of Plaintiff's constitutional rights under § 1983. Given the liberal pleading rules, see FED. R. CIV. P. 8(f), the court shall construe plaintiff's request for a writ of mandamus as a request for mandatory injunctive relief. See FED. R. CIV. P. 81(b) (stating that the writ of mandamus is "abolished" but that "[r]elief heretofore available by mandamus . . . may be obtained by appropriate action or by appropriate motion under the practice prescribed in these rules."). Thus, the court need not determine whether the All Writs Act confers jurisdiction on this court to award the relief requested.
Further, at this time, the court need not decide whether mandatory injunctive relief is warranted. Should Plaintiff succeed on her remaining claim at trial (i.e., her Fourteenth Amendment substantive due process claim against the individual Defendants sued in their official capacities), then the court can decide what equitable relief, if any, is appropriate. Accordingly, Defendants' Motion To Dismiss Plaintiff's request for a writ of mandamus be and the same is hereby DENIED.
V. ORDER
Based on the foregoing, it is CONSIDERED and ORDERED that Defendants' Motion To Dismiss be and the same is hereby GRANTED IN PART and DENIED IN PART as follows:
(1) Defendants' Motion To Dismiss Plaintiff's claims in Counts 1, 2 and 3 against ASU based upon Eleventh Amendment immunity be and the same is hereby GRANTED;
(2) Defendants' Motion To Dismiss Plaintiff's § 1983 claims in Counts 1 and 2 against the individual Defendants sued in their official capacities for compensatory and punitive damages based upon Eleventh Amendment immunity be and the same is hereby GRANTED;
(3) Defendants' Motion To Dismiss Plaintiff's § 1983 claims in Counts 1 and 2 against the individual Defendants sued in their official capacities for declaratory relief based upon Eleventh Amendment immunity be and the same is hereby DENIED;
(4) Defendants' Motion To Dismiss Plaintiff's § 1983 claim in Count 1 for failure to state a claim be and the same is hereby DENIED;
(5) Defendants' Motion To Dismiss Plaintiff's § 1983 claim in Count 1 against the individual Defendants in their personal capacities based upon qualified immunity be and the same is hereby GRANTED;
(6) Defendants' Motion To Dismiss Plaintiff's § 1983 claim in Count 2 for failure to state a claim be and the same is hereby GRANTED and said claim be and the same is hereby DISMISSED;
(7) Defendants' Motion To Dismiss Plaintiff's Title VI claim in Count 4 be and the same is hereby GRANTED and said claim be and the same is hereby DISMISSED;
(8) Defendants' Motion To Dismiss Plaintiff's breach-of-contract claim in Count 3 be and the same is hereby GRANTED and said claim be and the same is hereby DISMISSED; and
(9) Defendants' Motion To Dismiss Plaintiff's request for a writ of mandamus be and the same is hereby DENIED and Plaintiff's request for a writ of mandamus be and the same is hereby CONSTRUED as a request for mandatory injunctive relief.
It is further CONSIDERED and ORDERED that Plaintiff's claims in Counts 1, 2 and 3 against the Board of Trustees be and the same are hereby DISMISSED sua sponte on the basis of Eleventh Amendment immunity.