Hernandez v. Taylor ( 2020 )

1 WO 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE DISTRICT OF ARIZONA 5 6 George Hernandez, No. CV-19-00313-TUC-CKJ 7 Plaintiff, ORDER 8 v. 9 Darice Taylor, et al., 10 Defendants. 11 12 13 Presently before the Court is Defendants’ Motion to Dismiss (Doc. 20). For the 14 following reasons, Defendants’ Motion is GRANTED IN PART AND DENIED IN PART. 15 Plaintiff’s due process claims are DISMISSED WITH PREJUDICE. Plaintiff’s equal 16 protection claim is DISMISSED WITHOUT PREJUDICE. Plaintiff is given thirty days 17 from entry of this Order to file an amended complaint. 18 JURISDICTION 19 The Court exercises federal question jurisdiction over this matter under 28 U.S.C. § 20 1331, as the Court has original jurisdiction of all civil actions arising under the Constitution 21 of the United States. Venue in the U.S. District Court for the District of Arizona, Tucson 22 Division, is appropriate under 28 U.S.C. § 1391(b)(2) and LRCiv 77.1(c), as a substantial 23 part of the events giving rise to the claims occurred in Pima County. 24 BACKGROUND 25 In May 2015, Plaintiff George Hernandez enrolled in the Master of Science for 26 Entry to the Profession of Nursing (“MEPN”) program at the University of Arizona College 27 of Nursing. (Doc. 1, at 3) In the Spring 2016 semester, Plaintiff took a course titled Acute 28 Care or NURS 610B. Id. Plaintiff alleges that while he was enrolled in NURS 610B, he 1 was repeatedly harassed by the course professor, one of the named Defendants. Id. 2 According to Plaintiff, the harassment became so severe that he was forced to withdraw 3 from the class with the intention of retaking the course in a later semester. Id. In the Spring 4 2017 semester, upon re-enrollment into the class, Plaintiff contends he once again suffered 5 harassment—this time at the hands of a different professor. Id. at 4. 6 Plaintiff maintains that despite doing well in class, several Defendants conspired to 7 ensure that he would fail the course. Id. Plaintiff alleges that Defendants manufactured 8 documentation indicating he was failing at administering medication without discussing 9 his performance with him. Id. Plaintiff also contends that Defendants falsely noted he 10 failed to complete required tasks, docked him for mistakes he never made, required him to 11 take an additional exam no other student was required to pass, and improperly altered his 12 final grade from a passing grade to a failing one. Id. at 5-6. 13 Plaintiff asserts that after learning of his failing grade, he appealed his score to the 14 MEPN Program Coordinator. Id. at 6. After review, his appeal was denied by the 15 Coordinator. Id. Plaintiff then appealed the Coordinator’s denial to the Program Director. 16 Id. The Program Director denied Plaintiff’s appeal. Id. Next, Plaintiff appealed the 17 Director’s denial to the Dean of the College of Nursing. Id. at 7. The Dean also denied 18 Plaintiff’s appeal, but agreed to meet with him to listen to his concerns. Id. 19 On June 13, 2017, Plaintiff met with the Dean to discuss his failing grade. Id. 20 During their meeting, Plaintiff informed the Dean of faculty members that would refute the 21 findings he engaged in unsafe medication distribution during the clinical course. Id. The 22 Dean allegedly informed Plaintiff she would meet with those faculty members. Id. 23 Plaintiff asserts that no such meeting happened. Id. Instead, on June 16, 2017, Plaintiff 24 received a letter from the College of Nursing indicating that it was recommending he be 25 dismissed from the program. Id. The following day, Plaintiff was formally dismissed. Id. 26 As a result of his dismissal, Plaintiff alleges he lost a semester of tuition. Id. 27 Plaintiff also contends he is no longer able to obtain his master’s degree in nursing, which 28 prevents his ability to secure employment in the field and derailed his career. Id. at 8. 1 Plaintiff asserts Defendants participated in a conspiracy that resulted in violations of his 2 civil rights and allowed acts to be set in motion which they knew, or should have known, 3 would lead to injuries and illegal consequences. Id. Plaintiff suffered mental and emotion 4 pain and financial loss due to Defendants’ actions. Id. He seeks compensatory and punitive 5 damages, and attorneys’ fees and costs, for violations of his constitutional rights. Id. at 9. 6 PROCEDURAL HISTORY 7 On June 12, 2019, Plaintiff filed his complaint, which outlined two constitutional 8 claims against Defendants. (Doc. 1) On January 10, 2020, Defendants filed their Motion 9 to Dismiss. (Doc. 20) On May 13, 2020, Plaintiff filed his response (Doc. 26); and on 10 May 21, 2020, Defendants filed their reply (Doc. 27). This Order follows. 11 LEGAL STANDARD 12 A motion to dismiss for failure to state a claim tests the legal sufficiency of a 13 complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A claim will normally 14 survive a motion to dismiss if it offers a “short and plain statement . . . showing that the 15 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This statement “must contain 16 sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its 17 face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 18 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual 19 content that allows the court to draw the reasonable inference that the defendant is liable 20 for the misconduct alleged.” Iqbal, 556 U.S. at 678. However, the facts must be sufficient 21 to nudge a complaint from the conceivable to the plausible in order to state a claim. 22 Twombly, 550 U.S. at 570. In considering whether a complaint is sufficient to state a claim, 23 the court accepts all material allegations as true and views them in the light most favorable 24 to the plaintiff. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). 25 The court, however, is not required “to accept as true allegations that are merely 26 conclusory, unwarranted deductions of fact, or unreasonable inferences.” Sprewell v. 27 Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001) (internal citation omitted). 28 Furthermore, a plaintiff may plead himself out of court if he pleads facts which establish 1 that he cannot prevail on his claim. Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1 2 (9th Cir. 1997). “When ruling on a motion to dismiss, the court may consider the facts 3 alleged in the complaint, documents attached to the complaint, documents relied upon but 4 not attached to the complaint when authenticity is not contested, and matters of which the 5 court takes judicial notice.” Clarke v. Upton, 703 F. Supp. 2d 1037, 1041 (E.D. Cal. 2010) 6 (emphasis added) (citing Parrino v. FHP, Inc., 146 F.3d 699, 705-706 (9th Cir. 1998), 7 superseded by statute in City of Oakland v. BP PLC, 960 F.3d 570 (9th Cir. 2020)). If a 8 court dismisses a complaint, it should give leave to amend unless the “pleading could not 9 possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. 10 Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 11 ANALYSIS 12 Plaintiff outlines two causes of action related to his dismissal from the MEPN 13 program at the University of Arizona College of Nursing. First, Plaintiff alleges he was 14 denied his right to equal protection under the Fourteenth Amendment to the Constitution. 15 Second, Plaintiff contends he was denied substantive and procedural due process rights 16 under the Fifth and Fourteenth Amendments to the Constitution. Defendants bring their 17 Motion to Dismiss arguing Plaintiff fails to adequately state either due process or equal 18 protection claims. They also argue the complaint does little more than set forth the 19 elements of an equal protection claim, and Plaintiff fails to allege facts to support the 20 elements. Finding Plaintiff has misconstrued facts relevant to his complaint, and that the 21 credible facts he does allege fail to demonstrate violations of the law, the Court agrees with 22 Defendants; GRANTS IN PART AND DENIES IN PART their Motion to Dismiss; and 23 DISMISSES WITH PREJUDICE Plaintiff’s due process claims. 24 I. Plaintiff Fails to Allege a Substantive Due Process Violation 25 Whether a student who is subject to academic dismissal may maintain a cause of 26 action for the violation of his right to substantive due process remains an open question. 27 See Regents of the Univ. of Michigan v. Ewing, 474 U.S. 214, 222-23 (1985) (“We therefore 28 accept the University’s invitation to ‘assume the existence of a constitutionally protectible 1 property right in [Plaintiff’s] continued enrollment”). Yet courts have allowed substantive 2 due process suits to proceed based on an assumption that such a right exists. See, e.g., 3 Oyama v. University of Hawaii, 813 F.3d 850, 874 (9th Cir. 2015) (“[E]ven if we accept 4 [Plaintiff’s] argument that the University’s decision deprived him of a constitutionally 5 protected interest, the University provided him with adequate process); Richmond v. 6 Fowlkes, 228 F.3d 854, 857 (8th Cir. 2000) (“Assuming, without deciding, the existence 7 of a property or liberty interest, we conclude that [Plaintiff] received all the process that he 8 was due.”). To state a substantive due process claim, a plaintiff must allege: “(1) the 9 existence of a protected property or liberty interest; and (2) arbitrary and capricious conduct 10 on the part of university officials by showing that there was no rational basis for the 11 university's decision[.]” Hamil v. Vertrees, No. 98-D-508-N, 2001 WL 135716, at *7 12 (M.D. Ala. Jan. 10, 2001) (quoting Schuler v. Univ. of Minnesota, 788 F.2d 510, 515 (8th 13 Cir.1986)); see also Salus v. Bd. of Regents of Nevada Sys. of Higher Educ., No. 10-cv- 14 1734-GMN, 2011 WL 4828821, at *4 (D. Nev. Oct. 10, 2011) (“To constitute a violation 15 of substantive due process, the school official’s action must have been based on 16 unconstitutional criteria or have been arbitrary and capricious.”). 17 Although Defendants argue Plaintiff fails to state a substantive due process claim 18 (Doc. 27 at 2), for the purpose of this analysis, and in light of the Ninth Circuit’s assumption 19 in Oyama v. University of Hawaii, 813 F.3d 850, 874 (9th Cir. 2015), the Court finds 20 Plaintiff has sufficiently alleged a constitutionally protectible property right in continued 21 enrollment at a public university. At the very least, Plaintiff has alleged facts that allow 22 the Court to draw the reasonable inference that Plaintiff maintains such a right. What 23 Plaintiff fails to allege, however, is that his dismissal was based upon arbitrary and 24 capricious conduct by university officials. 25 Plaintiff alleges that despite doing well in class, his professors conspired to 26 undermine his performance. (Doc. 1, ¶ 20, at 4) He asserts he earned an 86.6% in Acute 27 Care, a 96.1% in Behavioral Health, and an 85.6% in Diverse Settings for a final adjusted 28 grade of 89.9%. Id. ¶ 22. Plaintiff goes even further by insinuating Defendants falsified 1 documents which indicate he was unsafe to practice due to his deficiencies in administering 2 medication. Id. ¶¶ 23-24. In contrast to Plaintiff’s allegations, Defendants include 3 documentation that demonstrates: (i) Plaintiff was previously dismissed from the MEPN 4 program for poor academic performance (Doc. 20-1 at 4-11); (ii) Plaintiff’s clinical 5 evaluation scores were only a minor component (5%) of his cumulative grade (Doc. 20-3 6 at 17); (iii) and university officials thoroughly examined and documented Plaintiff’s overall 7 performance throughout his tenure in the program (Doc. 20-1 at 26, 28; Doc. 20-2 at 2, 4; 8 Doc. 20-3 at 15-23). The Court concludes Plaintiff fails to adequately state a violation of 9 his substantive due process rights. The Court also finds that Plaintiff’s claim cannot be 10 cured by the allegation of other facts. Accordingly, his substantive due process claim is 11 DISMISSED WITH PREJUDICE. 12 II. Plaintiff Fails to Allege a Procedural Due Process Violation 13 “A procedural due process claim has two distinct elements: (1) a deprivation of a 14 constitutionally protected liberty or property interest, and (2) a denial of adequate 15 procedural protections.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 16 971, 982 (9th Cir. 1998). As a preliminary matter, the Court recognizes due process rights 17 are only implicated by a deprivation of liberty or property interests. Bd. of Curators of 18 Univ. of Mo. v. Horowitz, 435 U.S. 78, 82-84 (1978). While Plaintiff’s allegation that 19 dismissal has denied him a protected liberty interest may be tenuous, even recognizing that 20 right, the Court finds Plaintiff was given all the process he was due by university officials. 21 In Oyama, the Ninth Circuit addressed a situation similar to the one here. In that 22 case, the court analyzed whether the University of Hawaii violated the procedural due 23 process rights of one of its secondary education candidates when it denied his application 24 to become a student teacher. In concluding the University’s denial of the candidate’s 25 student teaching application satisfied the requisite due process requirements, the Ninth 26 Circuit observed: 27 28 1 When considering cases that originate in an educational institution, the law distinguishes between academic dismissals 2 and disciplinary dismissals. Academic dismissals do not 3 require a hearing and meet[ ] the requirements of procedural due process so long as the dismissal decision is careful and 4 deliberate. Disciplinary dismissals, by contrast, may require 5 more formal procedures. . . . . 6 [Board of Curators of the University of Missouri v.] 7 Horowitz supplies the standard for procedural due process in the context of academic decisions. In Horowitz, a medical 8 student argued that her school violated her procedural due 9 process right by dismissing her from the program without a hearing. The Court explained that the student's dismissal rested 10 on the academic judgment of school officials that the student 11 lacked the necessary clinical ability to perform adequately as a physician. The Court held that the student was not entitled to a 12 hearing and that the university satisfied the requirements of due 13 process because the school fully informed [the student] of the faculty's dissatisfaction with her clinical progress and the 14 danger that this posed to timely graduation and continued enrollment and because the ultimate decision to dismiss [the 15 student] was careful and deliberate. 16 17 Oyama, 813 F.3d at 874-75 (internal quotation marks and citations omitted). 18 Plaintiff contends his clinical grade was arbitrarily adjusted from an 89.9% to a 69% 19 without a detailed explanation. (Doc. 26 at 7) He also argues that the Dean of the College 20 of Nursing demonstrated arbitrary and capricious behavior by failing to follow the grade 21 appeal process outlined by the University. Id. Finally, Plaintiff concludes that the decision 22 to dismiss him from the program was neither careful nor deliberate and therefore violated 23 his due process rights. Id. 24 Defendants refute these allegations with a re-admission letter from the College of 25 Nursing. (Doc. 20-1 at 9) The letter informs Plaintiff that in order to be re-admitted into 26 the program he must successfully complete NURS 610b for Spring 2017. Id. The letter 27 also warns that “[f]ailure to successfully complete any portion of this process will result in 28 withdrawal from subsequent courses.” Id. Defendants also provide three separate Student 1 Progression Reports—filed by three different instructors—that inform Plaintiff of his 2 substandard academic performance and provide warning that unsatisfactory progress could 3 result in dismissal from the program. Id. at 26, 28; Doc. 20-2 at 2, 4. Additionally, 4 Defendants reference the University’s official grade appeal policy, Plaintiff’s letters of 5 appeal, and Defendants’ responses to those letters. The grade appeal policy refutes the 6 majority of Plaintiff’s allegations, including the assertion(s) that his grade was not given 7 adequate review and that the Dean failed to form a mandatory review committee for his 8 dismissal (the review committee is formed at the Dean’s discretion). (Doc. 20-3 at 2-5) 9 In reviewing Plaintiff’s conclusory allegations, unwarranted deductions of fact, and 10 unreasonable inferences—and the documents upon which they are based—the Court 11 concludes Plaintiff fails to state a claim for the denial of procedural due process rights.1 12 The Court also finds that Plaintiff’s claim cannot be cured by the allegation of other facts. 13 Accordingly, his procedural due process claim is DISMISSED WITH PREJUDICE. 14 III. Plaintiff Fails to Allege an Equal Protection Violation 15 “An equal protection claim requires a showing that the state actor treated classes of 16 people differently based on their class without justification[.]” Salus v. Bd. of Regents of 17 Nevada Sys. of Higher Educ., No. 10-CV-01734-GMN, 2011 WL 4828821, at *4 (D. Nev. 18 Oct. 10, 2011). “Where . . . state action does not implicate a fundamental right or a suspect 19 classification, the plaintiff can establish a ‘class of one’ equal protection claim by 20 demonstrating that [he] has been intentionally treated differently from others similarly 21 situated and that there is no rational basis for the difference in treatment.” Squaw Valley 22 Dev. Co. v. Goldberg, 375 F.3d 936, 944 (9th Cir. 2004) (internal quotation marks and 23 citation omitted), overruled on other grounds by Lingle v. Chevron USA, Inc., 544 U.S. 24 528 (2005). Plaintiff fails to allege any facts that he was treated differently than similarly 25 1 See Weisbuch v. County of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (“Whether the case can be dismissed on the pleadings depends on what the pleadings say. . . If the 26 pleadings establish facts compelling a decision one way, that is as good as if depositions and other expensively obtained evidence on summary judgment establishes the identical 27 facts. In this case, [Plaintiff] pleaded facts which establish that he cannot prevail on his First Amendment claim.”). 28 1 || situated students (1.e., students in the same academic predicament). He also fails to include 2|| any mention of a comparator(s). Merely reciting the elements of an equal protection 3|| violation does not state a claim. Accordingly, Plaintiff's equal protection claim is DISMISSED WITHOUT PREJUDICE, and he is given thirty days from the date of entry 5 || of this Order to file an amended complaint. 6 7 IT IS ORDERED: 8 1. Defendants’ Motion to Dismiss (Doc. 20) is GRANTED IN PART AND 9 DENIED IN PART. 10 2. Plaintiff's due process claims are DISMISSED WITH PREJUDICE. 11 3. Plaintiff's equal protection claim is DISMISSED WTIHOUT PREJUDICE. 12 4. Plaintiff is given thirty days from entry of this Order to file an amended 13 complaint. 14 15 Dated this 22nd day of July, 2020. 16 I Cie Lo Ages 18 Honorable Cin . J6fgenson United States District Judge 19 20 21 22 23 24 25 26 27 28 -9-