Free Response in Support of Motion - District Court of Arizona - Arizona

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40 North Central Avenue Phoenix, Arizona 85004-4429 Facsimile (602) 262-5747 Telephone (602) 262-5311 Troy P. Foster State Bar No. 017229 [email protected] Justin S. Pierce State Bar No. 022646 [email protected] Attorneys for Defendant

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) )

8 Stu Dvoret, an individual, 9 10 vs. Plaintiff,

No. CV 03-2133 PHX VAM REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

11 Maricopa Community Colleges, 12 13 14 Defendant.

Plaintiff's Response fails to cite any legal authority or identify any disputed issues

15 of material fact that would support any of his claims. Quite simply, that is because no 16 such cases exist, and there are no material fact disputes that preclude summary judgment. 17 18 19 20 21 22 23 24 25 26 27 28 To the contrary, what the Response does not say speaks volumes. For example: · The Response fails to address the defamation claim altogether, conceding defeat on this issue. Fed. R. Civ. P. 56(e) ("[T]he adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party."). · The Response fails to point to any authority supporting plaintiff's novel proposition (and one rejected by the Ninth Circuit over and over again) that determining the adequacy of due process is a fact question rather than a legal one reserved for the court. That is because no such case exists. See Belnap v. Chang, 707 F.2d 1100, 1102 (9th Cir. 1983) (holding that in cases involving an alleged deprivation by the government, "the court must
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determine if the deprived beneficiary has been afforded due process") (emphasis added). · The Response also fails to point to any authority supporting plaintiff's equally novel proposition (and also a consistently rejected one) that the determination of who is a policymaker for purposes of liability under 42 U.S.C. § 1983 is a question of fact. That is because firmly established case law demonstrates it is a question of law. Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) ("Whether an official has final policymaking authority is a question for the court to decide based on state law.") (emphasis added). · The Response fails to identify any facts supporting plaintiff's contention that Mr. Johnson suspended him because of his dress ­ or yet any facts suggesting that Mr. Johnson even knew how he dressed prior to the suspension. Simply put, plaintiff has failed to come forward with any authority to oppose the District's Motion. The Motion should be granted in its entirety. I. Plaintiff's Speech Claim Fails

In a last-ditch effort to breath life into his § 1983 claim, plaintiff claims in his Response that two questions are in dispute: "(1) whether Johnson was the final policymaker for purposes of suspending Stu, and (2) whether Johnson's actions in suspending Stu Dvoret were motivated by retaliation against Stu's protected conduct." [Response at p. 8, ll. 2-4.] As discussed below, these "questions," even if in dispute, (which they are not) do nothing to save his claims. A. There Is No Evidence That Mr. Johnson Acted With A Retaliatory Motive First and foremost, the record is devoid of any evidence that Mr. Johnson even knew plaintiff dressed in motorcycle garb, much less that Mr. Johnson's reason or motivation for suspending plaintiff was his dress. Furthermore, Mr. Johnson's explanation that he suspended plaintiff as a direct result of threats plaintiff made, and in
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order to protect students and faculty from potential harm, remains unrebutted. The fact is, plaintiff continues to offer no more than a conclusory statement that the District's actions in suspending him were motivated by retaliation. However, plaintiff cannot, at the summary judgment stage, simply rely on speculation to maintain his claim. Karam v. City of Burbank, 352 F.3d 1188, 1194 (9th Cir. 2003) (holding that plaintiff's speculation as to defendant's improper motive in First Amendment retaliation case "does not rise to the level of evidence sufficient to survive summary judgment"); Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081-82 (9th Cir. 1996) (same). Consequently, plaintiff's speech claim must be dismissed on that fact alone. B. Mr. Johnson Was Not A Final Policymaker For Purposes of § 1983 Liability Notwithstanding plaintiff's failure to bring forth any evidence that Mr. Johnson retaliated against plaintiff because of his dress, plaintiff's claim is fatally flawed for yet another reason: Mr. Johnson is not a "final policymaker" for purposes of holding the District liable under 42 U.S.C. § 1983. Plaintiff's contention that because Mr. Johnson made the decision to suspend him Mr. Johnson must be a final policymaker ignores the law and the facts. Plaintiff interchanges the term "decisionmaker" with "final policymaker," which leads him to this erroneous conclusion. The law, however, makes a clear distinction. The fact that Mr. Johnson made the discretionary decision to suspend plaintiff does not make him a "final policymaker" for purposes of holding the District liable under 42 U.S.C. § 1983. City of St. Louis v. Praprotnik, 485 U.S. 112, 126 (1988) ("If the mere exercise of discretion by an employee could give rise to a constitutional violation, the result would be indistinguishable from respondeat superior liability."); Pembaur v. City of Cincinnati, 475 U.S. 469, 483, n.12 (1986) (stating that a city would not be responsible for the conduct of a sheriff who had final authority to hire and fire deputies unless the sheriff also had final authority to set the county employment policy). As Pembaur makes clear, whether Mr. Johnson was a final policymaker turns on whether he was responsible for
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setting the final policy relating to student suspensions. The Dean of Student Services, however, is not given that authority; rather, it remains with the Governing Board of the Maricopa County Community College District. [SSOF ¶ 1.]1 Moreover, not only was Mr. Johnson not responsible for setting the final policy relating to student suspensions, Mr. Johnson's decision to suspend plaintiff was not even the final decision on plaintiff's suspension. The Student Handbook provides for an appeal mechanism whereby plaintiff could have appealed Mr. Johnson's decision. [SOF, Exhibit 14.] And, "when a subordinate's decision is subject to review by the [public entity's] authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate's decision and the basis for it, their ratification would be chargeable to the [public entity] because their decision is final." Praprotnik, 485 U.S. at 127 (emphasis in original). Consequently, Mr. Johnson was not a "final policymaker" and, as a matter of law, his actions could not have exposed the District to liability under § 1983. II. Plaintiff's Due Process Claim Also Fails As A Matter Of Law

Like plaintiff's speech claim, because plaintiff's due process claim also arises under 42 U.S.C. § 1983, the claim must be dismissed on the sole fact that Mr. Johnson was not a final policymaker. Nevertheless, even if Mr. Johnson was a final policymaker, the law does not require a school to grant a pre-suspension hearing; instead, the law provides that "[s]tudents whose presence poses a continuing danger to persons or property . . . may be immediately removed from school. In such cases, the necessary notice and rudimentary hearing should follow as soon as practicable. . . ." Goss v. Lopez, 419 U.S. 565, 582-83 (1975).

1

"SSOF" refers to Defendant's Supplemental Statement of Facts, filed concurrently with this Reply. In addition, "PSOF" refers to plaintiff's Statement of Facts. "SOF" continues to refer to Defendant's Statement of Facts filed with its Motion for Summary Judgment.
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The circumstances surrounding plaintiff's suspension demonstrate the school was within its legal rights to remove plaintiff from campus before a hearing. The following facts remain undisputed: · In referring to the U of A shooter, plaintiff admitted saying, "if this guy's instructor's screwed with him half as much as ours have with me, I can understand why he did something . . . . [SOF ¶¶ 2, 3.] · Two weapons were removed from plaintiff when he entered the library to take the HESI exam. [SOF ¶¶ 15, 16.] · Once in the library, he again referred to the Tucson shooting after sitting down to take the HESI exam. [PSOF ¶ 20.] · Ms. Eschelman reported to security that she heard plaintiff say, after sitting down to take the exam, "I think they thought I was going to do the Tucson thing, even though there are people here that deserve it." [SOF ¶ 19.] The foregoing facts, along with others, were reported to Mr. Johnson, and the Director of Public Safety at MCC recommended to Mr. Johnson that, "for the safety of all concerned," plaintiff should be removed from campus. [SOF ¶¶ 25, 26.] Plaintiff's only argument to save his claim is his subjective belief that the information reported to Mr. Johnson was taken out of context and some of the information was not reported accurately because Ms. Eschelman has hearing difficulties. With the benefit of hindsight, plaintiff suggests that Mr. Johnson should have "interviewed Stu, or the students who reported Stu's remarks, or anyone else with direct, first-hand knowledge of the remarks, before suspending Stu. . . ." [Response at pg. 6-7.] However, the law does not require such an elaborate pre-suspension investigation where the facts suggest student safety is concerned. Mr. Johnson, who did not have the benefit of time in this serious situation, explained his decision to suspend plaintiff prior to any hearing: We had been alerted by the nursing department that [plaintiff] had made some threatening remarks and some disparaging
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comments that related directly to the faculty within the nursing department. The unfortunate timing of those remarks is such that it was the day or two after a student at the University of Arizona had shot down a professor who was in . . . medical instruction. So it was a heightened and highly sensitive environment from that standpoint that that student had been stressed out over grades. . . . So, when [plaintiff] made those comments, the members of the faculty expressed concern. . . . So the question of the safety of those students and those employees was paramount. [SSOF ¶ 2.] Mr. Johnson further explained why the reports he received regarding plaintiff's comments were reliable, why he felt people were not simply overreacting to the recent events in Tucson, and why he felt he needed to take immediate action: I think these are qualified teachers and if they, in fact, say they heard some nasty things or that someone had threatened them, that on the basis of the threat, we need to respond. And if, in fact, on the basis of that threat, we respond by investigating the person who offered up the threat, and we find that that person has a weapon, I don't think there's in any way to associate that with, "Boy, they must be paranoid because of what happened down at the UofA." [Id. at ¶ 3.] The foregoing undisputed facts demonstrate that due process did not require Mr. Johnson to hold a pre-suspension hearing. And, plaintiff does not dispute he was given a "prompt post-deprivation hearing." 2 See G&G Fire Sprinklers, Inc. v. Bradshaw, 136 F.3d 587, 597 (9th Cir. 1998). Consequently, even if Mr. Johnson was a policymaker

In fact, plaintiff's suspension was withdrawn as a result of the due process afforded him. However, because the results of his HESI exam caused him to flunk out of the nursing program, in order to continue his studies he needed to re-apply to the program. Plaintiff did not do that. [SOF ¶ 36.] Therefore, the fact that plaintiff is not a nurse today has nothing to do with his suspension, and everything to do with his own decision not to complete the necessary requirements of the program.
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(which he is not) plaintiff was provided all of the process that was due him under the law.3 III. Plaintiff's Breach Of Contract Claim Fails A. Plaintiff's Notice of Claim Is Defective As A Matter Of Law Plaintiff's breach of contract claim was obviously an afterthought since his notice of claim does not even contain the words "breach" or "contract." [SOF ¶ 51.] That fact is fatal to plaintiff's breach of contract claim. The Legislature has determined that when suing a public entity, claims not identified in a notice of claim cannot go forward. The main purpose of the notice is to allow the public entity to "assess its potential liability." Howland v. State, 169 Ariz. 293, 299, 818 P.2d 1169, 1175 (App. 1991). In order to make the assessment, the public entity needs to know the legal basis for claims against it; accordingly, the statute requires a plaintiff to state the "basis" for his claim, along with facts to support that basis. A.R.S. § 12-821.01(A). Plaintiff's notice of claim expressly states the bases for his claims were the First Amendment (speech), Fourteenth Amendment (due process and equal protection), and a claim for defamation. Upon receipt of plaintiff's notice, the District was able to assess its potential liability as to these claims. However, defending a claim for violation of a student's due process rights, as the District's Motion and this Reply demonstrate, involves entirely different defenses than defending a claim for breach of contract. For example, the District could easily dismiss plaintiff's due process claims because no final policymaker had been involved in plaintiff's suspension. However, no such analysis is applicable to a breach of contract claim.

3

The fact that plaintiff was afforded post-deprivation process is also fatal to his due process claim, regardless of any flaws in the pre-deprivation proceedings. See Hudson v. Palmer, 468 U.S. 517, 533 (1984) ("[W]e hold that an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. For intentional, as for negligent deprivations of property by state employees, the state's action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy.").
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Plaintiff offers nothing other than his subjective interpretation to counter the fact that the notice of claim failed to raise ­ either factually or legally ­ a breach of contract claim. His blanket statement that the notice fulfilled the requirements of the statute ignores the vital differences between those claims and is simply not supported by the law. Consequently, plaintiff's notice of claim was defective and the Court should dismiss his breach of contract claim on that ground alone. B. MCC's Student Handbook Is Not A Contract Notwithstanding plaintiff's legally defective notice of claim, he has not established that the student handbook has the necessary elements of a contract as determined by Arizona courts. In fact, plaintiff has not identified a single case anywhere in which a court has construed a public college or university's student handbook as a contract with its students.4 Thus, the District cannot be liable for breach of contract because there was never a contract to breach. C. MCC Complied With The Provisions Of Its Handbook Finally, the student handbook expressly states that a post-suspension hearing can replace a pre-suspension hearing under the circumstances present in this case. [SOF ¶ 53.] As a result, even if the Student Handbook was a contract (which it is not), the District complied. IV. Conclusion

Plaintiff's Response only highlights the fatal flaws in his claims. As a result, the undisputed facts demonstrate that the District is entitled to summary judgment on all claims.

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Plaintiff attempts to distinguish the authority cited by the District. However, like the rest of his Response, he fails to identify any authority whatsoever that actually supports his position.
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DATED this 13th day of March, 2006. LEWIS AND ROCA LLP

s/ Justin S. Pierce Troy P. Foster Justin S. Pierce Attorneys for Defendant

By

CERTIFICATE OF SERVICE I hereby certify that on March 13, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrant. Steven L. Evans Steven L. Evans PLC 322 West Roosevelt Street Phoenix, Arizona 85003-1325 Attorneys for Plaintiff /s/ Kathleen A. Topczewski

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