Free Response to Motion - District Court of Arizona - Arizona

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Steven L. Evans, Arizona Bar No. 012998 STEVEN L. EVANS, PLC 322 West Roosevelt Street Phoenix, Arizona 85003 (602) 288-3325 [email protected] Attorneys for Plaintiff

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA STU DVORET, an individual, Plaintiff, vs. MARICOPA COMMUNITY COLLEGES, Defendant. PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Case No.: CV 03-2133 PHX EHC

Pursuant to Rule 56(c), Fed. R. Civ. P., plaintiff responds to the Motion for Summary 16 Judgment filed by defendant in this matter and requests that the Motion be denied on the 17 grounds that there are genuine issues of material fact that preclude entry of judgment as a 18 matter of law. 19 This Response is supported by the attached memorandum of Points and Authorities, the 20 accompanying Statement of Facts, and the entire record in this matter. 21 RESPECTFULLY SUBMITTED this 28 day of February 2006. 22 23 24 25 /s/ Steven L. Evans Steven L. Evans STEVEN L. EVANS, PLC 322 West Roosevelt Street Phoenix, Arizona 85003 Attorneys for Plaintiff

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MEMORANDUM OF POINTS AND AUTHORITIES Background and Facts. On October 28, 2002 a disgruntled, obviously deranged student in the University of Arizona nursing program murdered three instructors in the nursing program and then killed himself. That student was not Stu Dvoret, the plaintiff in this action. Nonetheless, in the tense days that followed, the dean of students of Mesa Community College, the head of campus security at Mesa Community College, and the frightened chair of the nursing department at

8 9 10 11 12 13 14 15 16 17 18 19 Myrna Eshelman, the chair of the nursing department on or about October 30, 2002. Ms. 20 Eshelman then asked campus security to have extra help at the HESI exam, scheduled for the 21 22 23 24 25 next morning. October 31, 2002, Stu Dvoret was again discussing the U of A tragedy with other students, this time as they entered the library to take the HESI exam. That conversation was overheard by another student, Bridgett Allen, who was not a party to the conversation and did Mesa Community College overreacted to out-of-context remarks reported to the chair, and to statements possibly incorrectly overheard by the chair personally, to trash Stu Dvoret's career. In its Motion, defendant argues that the facts do not support any of Stu Dvoret's claims against defendant. Defendant's own twist on the facts arguably supports defendant's Motion. However, the facts and the inferences to be drawn from the facts are disputed, and summary judgment would be improper. Following the shootings at U of A, Stu Dvoret, along with other students, was discussing the event during a break from his clinical studies. In that conversation Stu expressed an understanding of the things that might have pushed the gunman to do what he did. Stu did not condone the gunman's actions. Stu's remarks, taken out of context, were reported to

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not get the entire context of the conversation. Ms. Allen did not feel that the remarks were directly threatening to anyone, just inappropriate at that time. Ms. Allen did not report the remarks she heard to any school official, but she did mention it to another student. That student, apparently, later (after the HESI exam) reported the remarks (which she had not personally heard) to Myrna Eshelman, the chair of the nursing department. As he entered the school library to take the HESI exam, Stu and other students were asked to submit to voluntary searches of their book bags and so on. Unlike other students,

8 9 10 11 12 13 14 15 16 17 18 19 remarks were not threatening to a reasonable person. 20 Prior to the U of A shootings, no one at MCC had ever raised any security concerns 21 22 23 24 25 about Stu Dvoret. Stu was not aggressive in his behavior or disruptive in class. On October 31, 2002, Brian Johnson suspended Stu Dvoret from the Mesa Community College campus for one year. Johnson did not interview (or even attempt to interview) Stu or any of the students involved prior to making this decision. His decision was based on the however, Stu was subjected a physical search of his person by campus security personnel, who confiscated a pocket knife and a collapsible baton from Stu. Steve Corich, the head of campus security, reported these events to Brian Johnson, the dean of students. Stu was rattled by being searched, and by being singled out from other students for that purpose, and he performed poorly on the exam. After he entered the library to take the HESI exam, Stu spoke with another student, Alfred Dame. Mr. Dame and Stu discussed what Stu had just been through and, again, the U of A shootings. Myrna Eshelman overhead that conversation, and believed that she was being threatened by Stu Dvoret. She was not. Even if Ms. Eshelman correctly heard Stu's remarks (which is questionable under the circumstances given Ms. Eshelman's hearing difficulties), the

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information reported to him by Myrna Eshelman and Steve Corich. Most of that information was double hearsay by the time it reached Johnson. On November 1, 2002, Steve Corich met with Stu Dvoret for about an hour. During that meeting, Corich and Stu discussed the remarks attributed to Stu and Stu was able to put those remarks in context for Corich. Following that meeting, Corich advised Johnson that he did not feel that Stu posed a threat to anyone at the school. Based on that evaluation, and after meeting with Stu on November 25, 2002, Johnson lifted the suspension. Unfortunately, the

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2. Discussion. Summary judgment is appropriate only when there is no genuine issue of material fact and the Court can enter judgment as a matter of law. E.g. Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548 (1986). The burden of persuading the Court that there is no issue of fact is on the moving party. Id. That burden is not easily satisfied: The burden of persuasion imposed on a moving party by Rule 56 is a stringent one. 6 Moore ¶ 56.15[3], p. 56-466; 10A Wright § 2727, p. 124. Summary judgment should not be granted unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., ante, at 255, and any doubt as to the existence of a genuine issue for trial should be resolved against the moving party, Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-159 (1970). In determining whether a moving party has met its burden of persuasion, the court is obliged to take account of the entire setting of the case and must consider all papers of record as well as any materials prepared for the motion. 10A Wright § 2721, p. 44; see, e. g., Stepanischen v. Merchants Despatch Transportation Corp., 722 F.2d 922, 930 (CA1 1983); Higgenbotham v. Ochsner Foundation Hospital, 607 F.2d 653, 656 (CA5 1979). As explained by the Court of Appeals for the Third Circuit in In re Japanese Electronic Products Antitrust Litigation, 723 F.2d 238 (1983), rev'd on other grounds sub nom. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), "[i]f . . . there is any evidence in the record from any source from which a reasonable inference in the [nonmoving damage had been done.

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party's] favor may be drawn, the moving party simply cannot obtain a summary judgment . . . ." 723 F.2d, at 258.

Id. (footnote 2). In this case, there are numerous disputed facts, and inferences to be drawn from those facts, that preclude the entry of summary judgment. In such a case, summary judgment should not be substituted for a trial on the merits: Our holding . . . does not denigrate the role of the jury. It by no means authorizes trial on affidavits. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed verdict. The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505 (1986).

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Plaintiff's Section 1983 Claim.

Stu Dvoret was denied due process when he was suspended by the dean of students without a hearing, under circumstances that did not reasonably warrant an immediate suspension. Those actions were taken by a final decision maker of MCC (at least with respect to the suspension) on the recommendation of other MCC employees who were acting on bad information. The actions were taken in retaliation for Stu Dvoret's exercise of his right to wear motorcycle clothing when he was not required to be a nursing uniform.

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Due Process.

Stu Dvoret was suspended from campus without the hearing required by due process considerations and by MCC's own policies. Defendant cites Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975) in support of its position that Stu Dvoret was not deprived of due process. In

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Goss, the Supreme Court held that short suspensions (less than ten days) may be imposed without a hearing if a student's presence "poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process" without constituting a denial of due process. Neither of those conditions were present when the evidence is viewed from the standpoint of a reasonable person, and certainly not when viewed in Stu Dvoret's favor, as must be done in the context of this Motion. Defendant also cites G&G Fire Sprinklers, Inc. v. Bradshaw, 136 F.3d 587 (9th Cir., 1998) in support of its position that a pre-hearing suspension was warranted in this case. The Court in G&G held that the State of California violated the due process rights of a state contractor when it withheld certain funds from payments to the contractor without a hearing. In doing so, the Court noted that post-deprivation hearings can satisfy constitutional due process requirements, but only where there is an important government interest at stake and "substantial assurance that the deprivation is not baseless or unwarranted." Id. at 597. The Court listed preserving the integrity of the sport of horse racing and preserving public confidence in banking management (both with cites to other cases) as examples of situations in which a postdeprivation hearing is acceptable. Id. Clearly, under the right circumstances it would be acceptable to provide a student with a post-suspension hearing. But in this case those circumstances did not exist; there was inadequate assurance that the suspension of Stu Dvoret

20 was warranted. 21 22 23 24 25 Brian Johnson was the school official who made the decision to suspend Stu Dvoret. He did so based on information reported to him by Myrna Eshelman and Steve Corich. Most of that information was inflated and blown out of context before it reached Johnson. Johnson could have, and should have, interviewed Stu, or the students who reported Stu's remarks, or

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anyone else with direct, first-hand knowledge of the remarks, before suspending Stu for a year. There is no evidence to support any contention that Johnson could not have postponed his decision to suspend Stu until after having a chance to meet with him and afford him even the informal due process contemplated by the Supreme Court in Goss. Steve Corich was able to meet with Stu for one hour, the following day, and in that hour determined that Stu did not constitute a threat. There is no reason that the suspension needed to be imposed in such a rush without allowing Stu at least some opportunity to be heard and explain his side of the issues.

8 9 10 11 12 13 14 15 16 17 18 19 policymaker." 20 Stu Dvoret does not claim that defendant had a policy of retaliation. However, it is 21 22 23 24 25 beyond question that Brian Johnson was the final policymaker for purposes of analyzing Stu's claim arising out of his suspension. In his deposition, Brian Johnson was clear that he made the decision to suspend Stu. Steve Corich and Myrna Eshelman confirm that fact. Johnson's decision was based on information from Steve Corich and an e-mail from Myrna Eshelman 2. Speech. But instead, overreaction ruled the day and Stu Dvoret has suffered for it. A reasonable fact finder, at trial, could well determine that MCC unconstitutionally denied Stu Dvoret of his due process rights by suspending him, without a hearing, based on hearsay and speculation. Defendant's Motion should be denied.

Plaintiff maintains that defendant retaliated against him for his chosen style of dress in violation of his First Amendment rights. Defendant asserts that it did not deprive Stu Dvoret of his First Amendment rights because (1) defendant did not have a policy of such retaliation and (2) the person who took action against Stu Dvoret, Brian Johnson, was not a "final

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indicating that because Stu was a spiritual, motorcycle riding Viet Nam vet he should be feared. At the very least, there are questions of fact regarding (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. Those questions of fact preclude summary judgment. Additionally, the decision to search Stu Dvoret and add security at the HESI exam because of Myrna Eshelman's ill-founded concerns was made by Steve Corich, the head of

8 9 10 11 12 13 14 15 16 17 18 19 Arizona's notice of claim statute, A.R.S. § 12-821.01, does not require detailed, legal 20 theory-by-legal theory explanation for a notice of claim to be effective. All that is required is 21 22 23 24 25 that the notice provide sufficient information to allow the government entity to understand the claim against it. Pritchard v. State, 163 Ariz. 427, 788 P.2d 1178 (1990); Crum v. Superior Court, 186 Ariz. 351, 922 P.2d 316 (App. 1996); Howland v. State, 169 Ariz. 293, 818 P.2d B. Plaintiff's Contract Claim. 1. Notice of Claim. campus security. Corich was the final decision maker with respect to this action against Stu Dvoret and the repercussions of that action are clear: Stu was forced to take a test that stood to raise his grade to a passing level under conditions that were not conducive to success on the exam. If Stu had passed, and if his suspension was lifted, Stu would have been able to complete his nursing studies. Instead, he was barred from campus, deprived of an opportunity made available to other students to pass, and burdened with unreasonable, groundless requirements for readmission to the nursing program.

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1169 (App. 1991); Hollingsworth v. City of Phoenix, 164 Ariz. 461, 793 P.2d 1129 (App. 1990). In Crum, the Arizona Supreme Court held that the plaintiff's notice of claim was defective because it did not demand a specific sum as required by the statute, not because it did not enumerate each and every possible legal theory under which the plaintiff might try to recover damages. None of the cases cited above, the same cases cited by defendant in its Motion, involve a finding that a notice of claim was insufficient because it did not specify the

8 9 10 11 12 13 14 15 16 17 18 19 correctly citing Hunt v. University of Alaska, Fairbanks, 52 P.3d 739 (Alaska 2003) and Bruner 20 v. Petersen, 944 P.2d 43 (Alaska 1997) as not having reached the issue. Rather, the court in 21 22 23 24 25 both cases determined that the school's conduct complied with the requirements set forth in the school catalogs and/or handbooks at issue, and declined to address whether the school catalogs and/or handbooks created contracts between the school and the student. See, Hunt, 52 P.3d at 744-45. Not reaching the merits of a claim that a college handbook is a contract means just 2. The Handbook. legal theories under which the plaintiff might proceed. Rather, notices of claim are generally held to be sufficient if they contain an assertion of liability against the state, a description of the events giving rise to that liability sufficient to allow the state to assess its potential liability, and a statement of the relief sought. See, e.g., Howland, 169 Ariz. At 299 Plaintiff's notice in this case fulfilled the requirements of A.R.S. § 821.01, and defendant's arguments to the contrary should be ignored.

Defendant argues that the MCC student handbook cannot be a contract because it is subject to change and because no court has ruled that a college handbook is a contract,

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that; not reaching the merits. It is silly to suggest that not having reached and decided the issue means that the handbook is not a contract. Apparently, defendant wants this Court to believe that it did not intend to be bound by the handbook because it reserved the right to change the handbook at intervals. However, the handbook itself states that it governs certain aspects of the school/student relationship. Certainly defendant believes that Stu Dvoret was to be bound by its policies prohibiting weapons on campus and its policy that grades would not be rounded. Defendant's argument

8 9 10 11 12 13 14 15 16 17 18 19 While defendant understandably would like to have the Court interpret all the facts in its 20 favor, that is not the standard on a motion for summary judgment. Rather, the Court must take 21 22 23 24 25 all the facts, and all the inferences to be drawn from the facts, in the light most favorable to the non-moving party, in this case Stu Dvoret. Taking the evidence presented by both sides in that light, there are numerous genuine issues of material facts that preclude the entry of judgment as a matter of law in this case. 3. Conclusion. that it was not to be bound by the due process standards it set forth in the handbook is disingenuous and should be disregarded. Defendant next argues that even if the handbook was a contract, defendant did not breach it because it allowed for a post-suspension hearing and, apparently, that such a hearing was justified by safety concerns. As discussed above, reasonable minds could differ about whether there were reasonable pre-suspension assurances that the suspension was warranted and whether defendant's actions were reasonable and justified. Taking these disputed facts and inferences in Stu Dvoret's favor, summary judgment must be denied.

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For the foregoing reasons, plaintiff Stu Dvoret respectfully requests that the Court deny defendant's Motion for Summary Judgment. RESPECTFULLY SUBMITTED this 28 day of February 2006. /s/ Steven L. Evans Steven L. Evans STEVEN L. EVANS, PLC 322 West Roosevelt Street Phoenix, Arizona 85003 Attorneys for Plaintiff

CERTIFICATE OF SERVICE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I certify that on February 28, 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 registered CM/ECF participants: Troy P. Foster, Esq. LEWIS & ROCA 40 North Central Avenue Phoenix, Arizona 85004-4429 Attorneys for Defendant /s/ Steven L. Evans I certify that a copy of the attached document will be delivered to the following Magistrate Judge of the United States District Court for the District of Arizona on the 1 day of March 2006, to: The Honorable Virginia A. Mathis Sandra Day O'Connor U.S. Courthouse, Suite 323 401 West Washington Street, SPC 12 Phoenix, Arizona 85003-2120 Magistrate Judge of the United States District Court

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