Free Motion for Summary Judgment - 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 MOTION FOR SUMMARY JUDGMENT (Oral Argument Requested)

11 Maricopa Community Colleges, 12 13 14 Defendant.

Defendant Maricopa County Community College District (the "District")

15 respectfully requests that the Court grant summary judgment in its favor on all of 16 plaintiff's claims, pursuant to Rule 56 of the Federal Rules of Civil Procedure. All of 17 plaintiff's gripes boil down to two separate and distinct events: (1) plaintiff's suspension 18 for non-academic reasons (e.g., bringing weapons to campus and making threatening 19 statements); and (2) completely unrelated to his disciplinary suspension, his failure to 20 pass his nursing courses. The undisputed evidence demonstrates that plaintiff cannot 21 satisfy the elements of his claims for either of these gripes. Therefore, the District is 22 entitled to judgment as a matter of law. 23 The District's Motion is supported by the following Memorandum of Points and

24 Authorities and the separate Statement of Facts ("SOF"). 25 26 MEMORANDUM OF POINTS AND AUTHORITIES On October 28, 2002, a nursing student on the brink of flunking out of the nursing

27 program at the University of Arizona entered the U of A campus and murdered three 28 nursing instructors. [SOF ¶ 1.] Within three days of those murders, plaintiff, a nursing
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student at the Mesa Community College ("MCC") nursing school also on the brink of flunking out of the program, was overheard, and even admitted, making statements sympathetic to the U of A nursing student-turned-murderer. [SOF ¶¶ 2, 3.] For example, referring to the murders in Tucson, plaintiff stated that "if this guy's instructors screwed with him half as much as ours have with me, I can understand why he did something. . . ." [Id.] Plaintiff admits that he went on to say, "I can understand the pressure," you know, "that you feel when you're constantly being screwed with by your instructors." [SOF ¶ 4.] As another example, a fellow nursing student, Bridgett Allen, reported to Myrna Eshelman, the chair of the nursing department, that prior to entering the library on the morning of October 31, 2002, to take the Health Education Systems, Inc. (the "HESI") examination, she overheard plaintiff say that he had his own "list of three" instructors like the guy down in Tucson. [SOF ¶ 10.] Understandably, plaintiff's statements and the reports thereof created an immediate concern among both students and staff at MCC. [SOF ¶ 12.] The HESI Exam On the morning of October 31, 2002, just three days after the Tucson murders, the Block Four nursing students, which included plaintiff, were required to take the HESI exam at the MCC library. 1 [SOF ¶ 6.] Due in part to the recent shootings in Tucson as well as the reports of plaintiff's statements, security at the library was increased. [SOF ¶ 11.] As part of the increased security, all students were subjected to a voluntary search. [SOF ¶ 13.] Steve Corich, the Director of Public Safety for MCC, explained the nature of the search to the students as they came into the library. [Id.] As plaintiff entered the library, he placed his book bag on the table for Mr. Corich to inspect. [SOF ¶ 14.] Plaintiff then opened his vest in an effort to demonstrate that he had no firearms. [SOF ¶ 15.] As he
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The nursing program at MCC consists of four "blocks." A "block" is the same thing as a semester. [SOF ¶ 5.] The HESI exam is indicative of how students in their final stage will fare on the nursing boards. [SOF ¶ 7.] It is undisputed that plaintiff's HESI score would not have hurt his score; it could have only helped. [SOF ¶ 8.] Plaintiff had already failed the Block 4 when he took the HESI exam. [SOF ¶ 9.]
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opened his vest, another security officer, Lynn Bray, noticed plaintiff's knife clip and, while holding plaintiff's arm, notified the other security personnel that plaintiff had a knife. [Id.] Officer Bray then began to pat down plaintiff and discovered plaintiff was also carrying another weapon ­ a collapsible baton ­ in his back pocket. [SOF ¶ 16.] These items were immediately confiscated from plaintiff, and Mr. Corich informed him that these weapons were not allowed on campus. [SOF ¶ 17.] Plaintiff then entered the library to take the HESI exam. [SOF ¶ 18.] He sat down in the vicinity of another nursing student, with whom plaintiff had a short conversation. [Id.] Ms. Eshelman, who was a short distance away, reported hearing plaintiff say "they searched my bags. I think they thought I was going to do the Tucson thing, even though there are people here that deserve it." [SOF ¶ 19.] Ms. Eshelman, who was in charge of starting the exam, got the exam started, and then immediately sought out security and told them what she heard. [SOF ¶ 20.] The Disciplinary Suspension After plaintiff finished his test, Deb Bitter, an instructor at the nursing college, received the non-discretionary score. [SOF ¶ 21.] The HESI exam did not raise plaintiff's failing grade in Block 4; as such, Ms. Bitter approached plaintiff with the results, and indicated to him that he should come by her office to discuss his future career plans. [Id.] In the meantime, Mr. Corich reported plaintiff's earlier comments and the circumstances surrounding plaintiff's arrival for the HESI exam to Brian Johnson, the Dean of Students and Community Services. [SOF ¶ 25.] Mr. Corich recommended to Dean Johnson that the college not "tread lightly" and that "for the safety of all concerned," plaintiff should be "barred from campus." [SOF ¶ 26.] As a result, Dean Johnson sent a letter to plaintiff, dated October 31, 2002, informing him that he was suspended and was not permitted to enter the MCC campus. [SOF ¶ 27.] Within three weeks, plaintiff had two meetings: one with Mr. Corich and one with Dean Johnson. [SOF ¶¶ 28 ­ 31.] As a result of the meetings, and after considering all of the circumstances, Dean Johnson lifted plaintiff's suspension effective January 1,
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2003. [SOF ¶ 32.] However, because plaintiff had failed one of his required courses, in order to continue his studies, he would have needed to reapply to the program. [SOF ¶ 35.] Plaintiff, however, never again applied for reinstatement to the program. [SOF ¶ 36.] Claims Unrelated To Plaintiff's Disciplinary Suspension Plaintiff filed this lawsuit claiming that the manner in which MCC suspended him violated his due process rights and also somehow breached a contract with him. However, and completely unrelated to his disciplinary suspension, plaintiff also claims that other actions on the part of some faculty and staff at MCC violated his First Amendment rights of expression and also defamed him.2 These claims will be addressed separately below. I. Plaintiff's Section 1983 Claims Fail As A Matter Of Law. 42 U.S.C. § 1983 does not create any substantive rights; rather it merely applies to the deprivation of rights established elsewhere. City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985). The elements of an action under § 1983 are: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Alford v. Haner, 333 F.3d 972, 975-976 (9th Cir. 2003). Although a public entity is deemed such a "person," it can only be liable under the statute if the deprivation of rights was caused by a final policymaker or an official policy, practice, or custom. Monell v. N.Y. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978).

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Plaintiff's initial Complaint indicates that he believed actions were taken as a result of his sex, his religious beliefs, his veteran status, and his age, in addition to his claim that actions were taken as a result of his expressive dress and appearance as a "biker." See Complaint at ¶ 23. Plaintiff has abandoned those additional theories, however, and they are no longer in this lawsuit. He stated that he had no recollection of anyone at the school ever saying anything that evidenced a dislike of him because of his veteran status. [SOF ¶ 33.] He also stated that nobody at the school ever said anything or did anything that suggested a bias against him because of his membership in his church. [SOF ¶ 34.] He also stated that he has no reason to believe any faculty member or administrator at MCC had a bias against him because of his age. [SOF ¶ 37.]
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Plaintiff makes two separate and distinct claims under § 1983: (1) he claims that he was not afforded due process when he was suspended from MCC for non-academic reasons; and (2) he claims that the District violated his First Amendment rights through the actions of instructors and others at MCC that are unrelated to his disciplinary suspension. Neither of these claims can survive summary judgment. A. The Undisputed Evidence Demonstrates That Plaintiff Was Afforded Due Process. Plaintiff's claim that the District violated his due process rights is centered on the fact that he was suspended and removed from campus before he had an opportunity to be heard. Plaintiff's position would essentially require a school (or any other public entity for that matter) to first have a hearing before it takes any action to remove a student from campus, notwithstanding the school has a reasonable belief that the student may cause harm if allowed to stay on campus. Neither common sense nor case law supports such a position. The Supreme Court has held that "there are recurring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process 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). Therefore, whether a hearing is held before or after action has been taken is not a litmus test for due process. Rather, the due process test remains whether the student is ultimately given notice of the charges and an opportunity to be heard. See, e.g., G&G Fire Sprinklers, Inc. v. Bradshaw, 136 F.3d 587, 597 (9th Cir. 1998) ("As a general rule, the Due Process Clause requires that individuals receive notice and a meaningful opportunity to be heard before the government deprives them of property," but noting that "where extraordinary circumstances justify dispensing with the predeprivation hearing . . . a prompt post-deprivation hearing" satisfies due process).

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Dean Brian Johnson, the decision-maker regarding plaintiff's suspension,3 was presented with several pieces of evidence suggesting plaintiff was a threat to the safety of others on MCC's campus: Dean Johnson received reports that plaintiff had made statements indicating a sympathy for the Tucson shooter and statements indicating he might be capable of copying the Tucson shooter. [SOF ¶ 25.] He also received a report that two weapons were confiscated from plaintiff prior to his entering the library to take the HESI exam. [Id.] These facts, together with the recommendation from the Director of Public Safety at the college that plaintiff be removed from campus immediately, exhibit that plaintiff "pose[d] a continuing danger to persons" at MCC, and Dean Johnson's decision to suspend plaintiff from campus before a hearing was necessary to ensure the safety of students and faculty. [SOF ¶ 26.]4 However, "disciplinarians, although proceeding in utmost good faith, frequently act on the reports and advice of others; and the controlling facts and the nature of the conduct under challenge are often disputed." Id. at 580. As a result, due process requires that "notice and [a] rudimentary hearing follow as soon as practicable," when a student has been removed from campus on an emergency basis. That is exactly what happened here. The very next day after plaintiff was suspended, on November 1, 2002, plaintiff met with Mr. Corich regarding his suspension. [SOF ¶ 28.] In this meeting, plaintiff gave Mr. Corich "the full context" of his statements regarding the Tucson incident. [SOF ¶ 29.] After the meeting, Mr. Corich sent an e-mail to Dean Johnson indicating that he no longer believed plaintiff was a "threat to faculty or fellow students." [SOF ¶ 30.] Plaintiff then met with Dean Johnson regarding his suspension. [SOF ¶ 31.] As a result of these meetings, Dean Johnson decided to lift plaintiff's suspension. [SOF ¶ 32.] These meetings, and the results thereof, demonstrate that plaintiff was afforded due
3

Even though Dean Johnson had the final decision on plaintiff's suspension, there is a serious question as to whether he can be considered a "final policymaker" for purposes of holding the District liable under § 1983 in the first place. 4 The timing of the suspension, after plaintiff had already failed his Block 4 course and at the end of the semester, also gives some context concerning Dean Johnson's decision.
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process. Cf. Board of Curators of University of Missouri v. Horowitz, 435 U.S. 78, 85-86 (1978) ("All that Goss required was an `informal give-and-take' between the student and the administrative body dismissing him that would, at least, give the student `the opportunity to characterize his conduct and put it in what he deems the proper context.'"). Plaintiff's temporary removal from campus did not exclude him from the educational process at all. In fact, the only reason plaintiff did not continue his education at MCC was that he failed a required course in the nursing program, and he thereafter took no steps to apply for readmission to the program. [SOF ¶¶ 35, 36.] As a result, the undisputed evidence demonstrates that plaintiff received all of the process that was due him under the law. B. Plaintiff's Attempt To Transform His Due Process Claim Into A Breach of Contract Claim Fails. In an effort to resuscitate his fatally-flawed claim, plaintiff stretches the bounds of reason by attempting to transform a public college's student handbook into a contract and claiming that the District breached the contract. Plaintiff's last-ditch effort fails for several reasons. (1) Plaintiff's Notice Of Claim Fails As A Matter Of Law. In Arizona, before filing a lawsuit against a public entity, a claimant must file a notice of claim within 180 days after the cause of action accrues, pursuant to A.R.S. § 12821.01 (2002). The statute expressly requires that the claim contain "facts sufficient to permit the public entity or public employee to understand the basis upon which liability is claimed." A.R.S. § 12-821.01(A). The purpose of the notice of claim statute is "to provide the [public entity] with an opportunity to investigate, assess its potential liability and arrive at a settlement, as well as to provide a procedure by which the legislature will be advised of claims for which no payment has been provided." Howland v. State, 169 Ariz. 293, 299, 818 P.2d 1169, 1175 (App. 1991). Therefore, the notice of claim "must at least contain enough information to allow the state to intelligently ascertain these purposes so it can conscientiously allow or disallow the claim." Id. (citations omitted);
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see also Hollingsworth v. City of Phoenix, 164 Ariz. 462, 466, 793 P.2d 1129, 1133 (App. 1990) (dismissing claim for failure to describe nature of claim). The nature of plaintiff's claim is breach of contract. However, plaintiff's April 14, 2003 notice of claim never once suggests the District breached any contract with him. [SOF ¶ 51.] In fact, the words "breach" or "contract" are not found anywhere in the notice. [Id.] Instead, the alleged facts surrounding plaintiff's breach of contract claim were identified only as "due process" violations. [Id.] As a result, the District had no reason to believe it was facing a breach of contract action until after plaintiff filed this lawsuit. Compliance with § 12-821.01 is "mandatory and an essential requisite to [a] plaintiff's cause of action." Pritchard v. State, 788 P.2d 1178, 163 Ariz. 427, 432 (1990). Failure to properly file a notice of claim against the District mandates the dismissal of plaintiff's complaint. Howland v. State, 818 P.2d 1169, 169 Ariz. 293, 299 (Ariz. App. 1991); see also Crum v. Superior Court, 186 Ariz. 351, 353, 922 P.2d 316, 318 (App. 1996) (holding that failure to meet the requirements of § 12-821.01 would preclude judgment against public employee). Because plaintiff's notice of claim did not put the District on notice of "the basis upon which liability is claimed," plaintiff failed to satisfy the requirements of § 12-821.01 and his breach of contract claim must be dismissed on that point alone. (2) The College's Student Handbook Is Not A Contract. The student handbook at MCC can be modified at any time by the administration. [SOF ¶ 52.] The modification can add or take away rights and responsibilities of both the college and the students without any input or assent from the students. [Id.] These factors indicate that the student handbook has no elements of a contract as determined by Arizona courts. Savoca Masonry Co. v. Homes & Son Constr. Co., 112 Ariz. 392, 394, 542 P.2d 817, 819 (1975) ("It is elementary that for an enforceable contract to exist there must be an offer, an acceptance, consideration, and sufficient specification of terms so that the obligations involved can be ascertained.").
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If the student handbook was a contract between the District and the students, the District faces the possibility of tens of thousands of breach of contract actions any time it does not act in congruence with the language in the handbook. No Arizona or Ninth Circuit court has ever construed a public college or university's student handbook as a contract with its students; in fact, courts that have been presented with the issue have refused to even reach the merits of such a claim. See, e.g., Hunt v. University of Alaska, Fairbanks, 52 P.3d 739, 745 (Alaska 2003); Bruner v. Petersen, 944 P.2d 43, 47 (Alaska 1997) Therefore, because there was no contract to begin with, plaintiff's breach of contract claim must be dismissed. (3) Even If The Handbook Was A Contract, The District Did Not Breach It. "The general test of performance . . . is not whether a party has literally complied with a contract's terms, but whether one has substantially done so." 17A Am. Jur. 2d Contracts § 616 (2005). The Restatement identifies five factors to consider when determining whether a party has substantially complied with a contract, all of which indicate that the District would not be in breach even if the Court construed the handbook as a contract. See Restatement (Second) of Contracts § 241 (1981); Martinez v. Woodmar IV Condo. Homeowner's Ass'n, Inc., 189 Ariz. 206, 208, 220 P.2d 218, 220 (1997) ("In Arizona, if there is no statute or case law on a particular subject, we have traditionally followed the Restatement of laws."). By not holding a hearing prior to suspending plaintiff, MCC did not deprive him of any rights; he was subsequently given notice and an opportunity to be heard consistent with federal law and the language of the handbook, and his suspension was lifted shortly thereafter. [SOF ¶¶ 28-32.] Moreover, the General Student Handbook itself contains exceptions to the general rule that a hearing is required prior to suspension. [SOF ¶ 53.] The exceptions dictate that a postsuspension hearing can replace a pre-suspension hearing for the safety of students, faculty, or the student himself, or for the preservation of college property, or to combat a threat of disruption. [Id.] Given the reports received by MCC regarding plaintiff's
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statements and actions, these exceptions are applicable here. As a result, even if the handbook is a contract, MCC complied, or, at a minimum, substantially complied with its terms. C. Plaintiff Cannot Maintain His First Amendment Claim Under § 1983. Plaintiff's claim is not that the District forbade him from exercising his First Amendment rights; he was able to wear his "biker dress" at any time except when all students were required to wear the nursing uniform. In fact, plaintiff admitted that he was never disciplined for inappropriate dress. [SOF ¶ 38.] Therefore, plaintiff's claim is one of retaliation ­ he claims that the District took certain actions against him because he exercised his First Amendment right in wearing his "biker garb." However, plaintiff offers no more than pure conjecture that the District's actions were motivated at all by retaliation. First and foremost, plaintiff's claim fails because the District does not have a policy or practice of retaliating against students for the exercise of their First Amendment freedoms. Furthermore, none of the claimed retaliators are "final policymakers" at the District. "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or those whose edicts or acts may be fairly said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694; see also Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992) (holding that a public entity "may not be held vicariously liable for the unconstitutional acts of its employees under the theory of respondeat superior"). Even if a school administrator is a "final policymaker" for purposes of § 1983, plaintiff admits he had no problems or conflicts with any administrators at MCC, and that no administrator wanted to get him out of the program. [SOF ¶ 39.] The fact is, plaintiff identifies a sum total of four people he ever had conflicts with at the college: two instructors from his first semester (Pat English and Esther Houghland), one from his third
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semester (plaintiff cannot recall her name), and one from his final semester (Deb Bitter). [SOF ¶ 40.] These instructors are not final policymakers for purposes of § 1983 liability because they cannot make discretionary "policy" decisions for the District that are not subject to review. See Christie v. Iopa, 176 F.3d 1231, 1235-36 (9th Cir. 1999) ("[C]ourts consider whether the official's discretionary decision is `constrained by policies not of that official's making' and `subject to review by the municipality's authorized policymakers.'") (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988)); see also Lytle v. Carl, 382 F.3d 978, 983 (9th Cir. 2004) ("For a person to be a final policymaker, he or she must be in a position of authority such that a final decision by that person may appropriately be attributed to the District."). Therefore, because plaintiff's allegations all deal with non-policymakers, his claim must be dismissed as a matter of law on this point alone. Furthermore, even if these college instructors were final policymakers (which they are not), plaintiff still cannot meet his burden of establishing the elements of a First Amendment retaliation claim. Plaintiff must first prove that he was "engaged in an activity that is entitled to constitutional protection." Rendish v. City of Tacoma, 123 F.3d 1216, 1219 (9th Cir. 1997) (citations omitted). Second, he must prove that his "exercise of the constitutionally protected right was a `substantial' or `motivating' factor in the defendant's action." Id; see also Thomsen v. Romeis, 198 F.3d 1022, 1027 (7th Cir. 2000) ("The plaintiff cannot prevail unless he establishes that the defendant would not have taken the challenged actions `but for' the constitutionally protected conduct."). If he meets the elements of his prima facie case, the burden then shifts to the defendant to "show by a preponderance of the evidence that it would have taken the same actions even in the absence of the protected conduct." Rendish, 123 F.3d at 1219; Thomsen, 198 F.3d at 1027. Plaintiff cannot meet the elements of his prima facie case. Plaintiff alleges that the District took the following actions against him in retaliation for the exercise of his First Amendment rights:

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· General unfavorable treatment by some instructors;5 · Not allowing plaintiff to retake the HESI exam after he failed; · Searching plaintiff as he came into the library to take the HESI exam; and · Not rounding plaintiff's final grade. Plaintiff has failed to bring forth any evidence to demonstrate that the exercise of his First Amendment rights was a substantial or motivating factor in these alleged actions.6 (1) General Unfavorable Treatment 7

Plaintiff's Complaint alleges that one of his first semester instructors, Pat English, "would consistently employ pleasant, respectful demeanors toward students who participated in [her] instruction," but was generally mean to plaintiff. See Complaint at ¶ 24. However, in his deposition, plaintiff admitted that before he ever met Ms. English, he had heard rumors that she was "not one of the nicer instructors." [SOF ¶¶ 41, 43.] He also noted in his May 8, 2001 evaluation letter: [Ms. English] appears to be abrasive, sarcastic and generally, a disrespectful individual to both students and staff. . . . I observed some occasions where [she] has had some of the girls in class in tears and others became afraid of her. . . . I have found [her] lacking in compassion and taking a little more aggressive approach in the negative toward the male students in the class. For example, plaintiff's Complaint states that Ms. English and Ms. Houghland "display[ed] derisive behavior toward him and evidenced outward resentment at [his] attempts to participate." See Complaint at ¶ 24. Also, his Complaint states that Ms. Bitter "discouraged [him] from seeking her guidance on improving his performance in her class." Id. at ¶ 27. Further, it states that Ms. Bitter disregarded his request for a particular preceptorship assignment. Id.
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It is likely plaintiff's "appearance" is not a constitutionally protected activity that plaintiff was "engaging in" for purposes of this claim. However, because there is such an utter void of evidence connecting any of the District's actions to some retaliatory motive, the District will focus its argument on plaintiff's failure to meet the second element of his First Amendment claim.
7

Importantly, plaintiff's complaints relating to alleged mistreatment by two of his instructors during the fall of 2000, are barred by the two-year statute of limitations applicable to § 1983 actions. Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003) ("The applicable statute of limitations for actions brought pursuant to 42 U.S.C. § 1983 is the forum state's statute of limitations for personal injury actions.") In Arizona, the statute of limitations for personal injury claims is two years. A.R.S. § 12-542 (2005).
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[SOF ¶ 42.] Far from the individual mistreatment that his Complaint alleges, plaintiff's own observations suggest that Ms. English did not single him out for mistreatment any more than she might have mistreated others in the class. Notably, plaintiff speculates that Ms. English was bothered by plaintiff for other non-protected reasons ­ specifically, his previous paramedic experience. [SOF ¶ 44.] Plaintiff even testifies that these nonprotected reasons might be the reason for his perceived mistreatment. [Id.] In any event, plaintiff's further speculation that Ms. English did not like him because of his "biker dress" is supported by nothing other than plaintiff's perception that, at times, she would "glare" at him. [SOF ¶ 45.] Plaintiff also admits that the second instructor that he had conflicts with, Esther Houghland, "treated [him] like anybody else" at the beginning of the semester until the last couple of weeks. [SOF ¶ 46.] As with Ms. English, plaintiff fails to identify how the exercise of his First Amendment rights somehow caused a conflict with Ms. Houghland. Put simply, plaintiff dressed in his "biker garb" from the first day of classes and the fact that his conflict with Ms. Houghland did not arise until the end of the semester refutes plaintiff's claim that his dress had anything to do with their conflict, as he describes it. Plaintiff has come forth with no evidence to connect the two. Plaintiff's conflict with a third instructor is admittedly unrelated to any exercise of his First Amendment rights, but rather, a result of plaintiff asking out another instructor on a date. [SOF ¶ 47.] Plaintiff's last conflict was with Deb Bitter, one of his instructors in his final semester. As with Ms. English, plaintiff had heard before he ever began Ms. Bitter's class that she is mean and she is tough. [SOF ¶ 48.] Also like Ms. English, plaintiff admits that he had heard that "she came down on a bunch of people," and that he himself "saw her yell at somebody . . . there at clinical." [SOF ¶ 49.] In all, plaintiff offers no more than utter speculation that any of these conflicts was a result of some animus against him for the exercise of his First Amendment rights or even his "biker dress" generally. His claim boils down to an assumption that because he
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had conflicts with these instructors, it necessarily was because of his appearance. Plaintiff's assumption, with nothing to back it up besides pure speculation, is not enough to carry his burden. 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 Community College, 83 F.3d 1075, 1081-82 (9th Cir. 1996) (same). (2) Retaking the HESI Exam Plaintiff claims that the students were told right before taking the HESI exam that if they did not pass, they would get a second chance to take the exam again later. [SOF ¶ 22.] However, plaintiff cannot identify a single person who has taken the HESI exam a second time after failing it the first time. [SOF ¶ 23.] Furthermore, he never inquired whether he could take the HESI exam a second time after he himself failed it. [SOF ¶ 24.] Plaintiff's own failure to inquire into a second opportunity to take the HESI exam bars him from now claiming the District did not let him take it again. Nevertheless, and notwithstanding plaintiff's failure, he once again offers no more than speculation that the District did not offer him a second chance to take the HESI exam because of the exercise of his First Amendment rights. (3) The "Pat Down" Before The HESI Aside from not being a constitutional deprivation, plaintiff comes forward with no evidence to even suggest that Officer Lynn Bray's "pat down" of him before he entered the library was a result of some animus for plaintiff's "expression." Like the rest of the occurrences, plaintiff simply assumes that the conduct was because of his "biker dress" without offering a shred of evidence to back up his supposition. In fact, the undisputed evidence demonstrates the legitimate reasons for the search: security received reports regarding plaintiff's sympathetic statements about the Tucson murders [SOF ¶ 11], and when plaintiff opened his vest, Officer Bray saw a knife. [SOF ¶ 15.]

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(4) Rounding Plaintiff's Grade Plaintiff finally claims that if Department Chair Eshelman would have rounded his grade up, he would have passed, and that her failure to do so must have been motivated by some animus against him. However, it is undisputed that the policy, as outlined in the Nursing Student Handbook, is that grades will not be rounded. [SOF ¶ 56.] Furthermore, plaintiff cannot confirm a single case of a student having their grade rounded up to a passing grade. [SOF ¶ 57.] That's because no rounding occurred under this policy. As a whole, the undisputed evidence demonstrates plaintiff's failure to connect any of the aforementioned occurrences to any retaliatory motive, plain and simple. As a result, he fails to meet his prima facie case of retaliation. Furthermore, even if plaintiff could meet the prima facie case (which he does not), the undisputed evidence establishes that regardless of plaintiff's exercise of his First Amendment rights, these individuals' conduct would not have changed. Simply put, plaintiff still would have failed out of the program because the policy is not to round grades for anyone. Also, because plaintiff was carrying weapons that became visible once plaintiff opened his vest for inspection when he entered the library to take the HESI, it defies common sense to suggest the officers would not have patted him down or seized his weapons from him "but for" his dress. Therefore, even if plaintiff could establish a prima facie case (which he cannot), the actions taken by the faculty and staff at MCC would have been the same nonetheless. As a result, plaintiff's claim must be dismissed.8 II. Plaintiff's Defamation Claim Also Falls Flat. In Arizona, in order to establish the tort of defamation, a plaintiff must prove four main elements: "(1) A false and defamatory statement concerning the plaintiff; (2) an unprivileged publication to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) actionability of the statement either due to special harm
8

It is somewhat unclear, but it appears plaintiff's Complaint attempts to state a claim under the Equal Protection Clause. Although there are several independent defenses to such a claim (for example, plaintiff's failure to identify himself in a "protected" class), it suffices to say that plaintiff's failure to come forth with any evidence to support his retaliation claim also defeats any potential equal protection claim.
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caused by the publication or irrespective of special harm given the nature of the allegation." Fillmore v. Maricopa Water Processing Sys., 2005 WL 2271681, ¶ 21 (App. 2005) (citing Restatement (Second) of Torts § 558). The undisputed evidence demonstrates that plaintiff cannot meet his burden. In his deposition, plaintiff was asked if he believed there were any statements ever made about him by a District employee that were untrue or false. [SOF ¶ 58.] Plaintiff identified Myrna Eshelman as the only person who had made such statements, and identified only two statements she allegedly made about him. [SOF ¶ 59.] The first was Ms. Eshelman's statement in her deposition that plaintiff came and spent an hour in her office and that her relationship with plaintiff was limited to one of "passing in the hall." [SOF ¶ 60.] Plaintiff explains that he never sat in her office with her, and also, their relationship was more than just "passing in the hall" because he had once helped her move some furniture from the parking lot and had on another occasion offered her assistance carrying some boxes. [SOF ¶ 61.] The only other statement plaintiff alleged was an untrue statement about him was Ms. Eshelman's statement that she heard him say in the library that he "had a list or anything like that. . . ." [SOF ¶ 62.] Plaintiff declares, "that was never said." [Id.] Plaintiff's claim fails for several independent, yet equally compelling, reasons. First, plaintiff's notice of claim fails to identify either of these statements by Ms. Eshelman as the basis for his defamation claim. [SOF ¶ 55.] As a result, plaintiff did not give notice of the "facts sufficient to permit the public entity or public employee to understand the basis upon which liability is claimed." A.R.S. § 12-821.01(A); see also analysis under Section B(1) above. For that reason alone, plaintiff's defamation claim must be dismissed. Second, plaintiff has no damages, which is an essential element of the claim. Plaintiff declared that he has no idea whether any person has changed the way he or she feels about him based on anything Myrna Eshelman said. [SOF ¶ 64.] And, nothing that plaintiff alleges Ms. Eshelman said is actionable "per se." See Boswell v. Phoenix
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Newspapers, Inc., 152 Ariz. 1, 6, n.4, 730 P.2d 178, 183 (App. 1985) (noting that proof of special harm is necessary to sustain claim). Third, plaintiff stated Ms. Eshelman's alleged untrue statements were made "in her deposition in [plaintiff's attorney's] office." [SOF ¶ 63.] Therefore, her statements were privileged as a matter of law, and cannot be the basis for a defamation action. Burns v. Davis, 196 Ariz. 155, 159, ¶ 4, 993 P.2d 1119, 1123 (App. 1999) ("A witness is generally afforded an absolute privilege when testifying in a judicial proceeding."). Nevertheless, even Ms. Eshelman's statements to people outside of her deposition, such as administration officials or security personnel at MCC, regarding what she heard plaintiff say in the library, are at a minimum conditionally privileged. Restatement (Second) of Torts § 592A topic 3, tit. A (1976) ("Occasions making a publication conditionally privileged afford a protection based upon a public policy that recognizes that it is essential that true information be given whenever it is reasonably necessary for the protection of one's own interests, the interests of third persons or certain interests of the public. In order that the information may be freely given, it is necessary to afford protection against liability for misinformation given in an appropriate effort to protect or advance the interest in question."); see Burns, 196 Ariz. at 162, ¶¶ 19-20, 993 P.2d at 1126 (citing Restatement (Second) of Torts § 592A topic 3, tit. A as authority in Arizona). Therefore, because plaintiff cannot satisfy all the elements of the tort of defamation, the Court should dismiss his claim. III. Conclusion

Plaintiff cannot meet his burden to satisfy the elements of any of his claims. As such, the Motion should be granted. Moreover, the District requests attorneys' fees pursuant to A.R.S. § 12-341-01.

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DATED this 23rd day of November, 2005. LEWIS AND ROCA LLP

By

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

CERTIFICATE OF SERVICE I hereby certify that on November 23, 2005, 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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