R.W., individually and on behalf of his marital community v. COLUMBIA BASIN COLLEGE, a public institution of higher education; LEE THORNTON, in his individual capacity; REBEKAH WOODS, in her official capacity; and RALPH REAGAN, in his official and individual capacities
NO: 4:18-CV-5089-RMP
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON
Nov 19, 2021
ECF No. 151
BEFORE THE COURT is Defendants’ Motion for Partial Summary Judgment, ECF No. 128. The Court heard oral argument by video conference on October 14, 2021. Plaintiff R.W. was represented by Bret J. Uhrich and Eric B. Eisinger. Defendants Columbia Basin College, Lee Thornton, and Ralph Reagan were represented by Jacob E. Brooks and Carl P. Warring from the Attorney General of Washington‘s Office. The Court has considered the parties’ arguments, briefing and the record, and is fully informed.
BACKGROUND
Relevant Facts1
R.W. was enrolled in Columbia Basin College‘s (“CBC“) nursing program, completing 177 credit hours between 2011 and 2017, and needing to complete only one more quarter of classes to graduate. ECF No. 37-4. He previously was diagnosed with a seizure disorder, chronic back pain, and depression. ECF No. 37-24 at 5. In February of 2017, R.W. experienced more frequent seizures, depression, and anger issues. Id.; see also ECF No. 37-12. During this time, R.W. had homicidal ideations about three of his instructors at CBC, in which he imagined killing them by lighting their offices on fire and attacking them with saws. ECF Nos. 47-5, 35-2 at 48.
R.W. reported his medical issues to Dr. Michael Cabasug, his primary care physician, on February 28, 2017, and scheduled an appointment for March 6. ECF No. 37-22 at 10. Between February 28 and March 6, R.W. continued to attend his nursing classes at CBC without incident. Id. At the March 6 appointment, R.W. told Dr. Cabasug that he had been feeling overwhelmed, helpless, and anxious because he was extremely stressed from school. ECF No. 37-24 at 5. R.W. stated that he was having trouble sleeping because of his stress from school, which Dr. Cabasug noted was likely the cause of an increase in epileptic episodes that R.W. had been experiencing over the previous several weeks. Id. R.W. also shared with Dr. Cabasug his concerns аbout his violent ideations. ECF No. 37-27.
Dr. Cabasug referred R.W. to Lourdes Hospital‘s Crisis Response Counseling Center for a mental health evaluation. Id. Araceli Perez, a crisis responder for
Following this evaluation, R.W. agreed to voluntarily admit himself for inpatient counseling. ECF No. 37-27 at 2. R.W. initially wanted to leave inpatient treatment on March 9 but was convinced to stay an extra day and was discharged on March 10. ECF No. 35-1 at 33; ECF No. 37-12 at 1. Around this time, R.W. admitted that he began to realize he would not be able to complete Winter Quarter 2017, which ended on March 23, 2017.2 ECF Nos. 34 at 2, 130-2 at 9-10. He could not re-enroll in the nursing program until the following Winter Quarter because of the nursing рrogram‘s progressive schedule, which requires the completion of certain classes offered only once a year before moving on to the following courses. ECF No. 34 at 1-2.
Defendants allege that crisis responder Ms. Perez has a duty to warn people if her patients express homicidal ideations about them. ECF No. 35-1 at 37. After R.W. told Ms. Perez about his homicidal thoughts, she contacted the Richland Police Department, which then notified CBC‘s campus security on the morning of March 7. ECF No. 37-10 at 2. CBC‘s campus security warned the professors identified by R.W. about R.W.‘s thoughts. Id. Defendant Ralph Reagan, Assistant Dean of Student Conduct for CBC, also was informed about R.W.‘s thoughts. ECF No. 37-8 at 5. Mr. Reagan was told that R.W. “admitted to having homicidal ideations toward staff at CBC, talking about lighting offices on fire and attacking people with saws.” ECF Nos. 37-10 at 10, 37-8 at 5. Additionally, Mr. Reagan was told that R.W. was at Lourdes “getting help and may not be an immediate threat.” ECF No. 37-10 at 10.
The same day that Mr. Reagan learned of R.W.‘s homicidal ideations, Mr. Reagan issued R.W. an interim trespass letter pending an investigation. ECF No. 37-9 at 1. According to Mr. Reagan, R.W.‘s thoughts violated the school‘s Student Code of Conduct. The Student Code of Conduct prohibits “Abusive Conduct,” which is defined under the Washington Administrative Code as:
Physical and/or verbal abuse, threats, intimidation, harassment, online harassment, coercion, bullying, cyberbullying, retaliation, stalking, cyberstalking, and/or other conduct which threatens or endangers the health or safety of any person or which has the purpose or effect of creating a hostile or intimidating environment.
Id.; see also
As the interim trespass was being appealed, CBC and R.W. also participated in the student conduct process to review the allegations made against R.W. ECF No. 37-16. On March 22, CBC held a mеeting at which Mr. Reagan and R.W. discussed the allegations. Id. At the meeting, Mr. Reagan requested access to R.W.‘s medical records to assess whether R.W. committed any abusive conduct, as defined by the Washington Administrative Code, which is incorporated into CBC‘s Student Code of Conduct. ECF No. 37-22 at 7. Mr. Reagan received R.W.‘s medical records from Dr. Cabasug as well as a letter written by Dr. Cabasug explaining that R.W.‘s homicidal thoughts were out of character for him. ECF Nos. 35-4 at 53-54, 72; 37-21; 37-33. Mr. Reagan also talked to the professors identified in R.W.‘s homicidal thoughts, who all expressed that R.W.‘s thoughts made them afraid of R.W.‘s presence in classes. ECF Nos. 35-4 at 130, 137-38; 37-7.
On April 20, 2017, Mr. Reagan issued R.W. a letter stating that he found R.W. responsible for violating CBC‘s Student Code of Conduct. ECF No. 37-16. The letter stated that, even though R.W. did not intend to intimidate anybody through his actions, his actions had that effect and therefore violated the school‘s regulations. Id. Mr. Reagan later clarified that R.W.‘s violent thoughts were the conduct that violated the school‘s code. ECF No. 35-4 at 123.
The sanctions imposed by Mr. Reagan for R.W.‘s conduct included the continuation of the trespass order until R.W. (1) successfully re-enrolled in the nursing program, (2) participated in mental health counseling, and (3) completed a mental health evaluation in October of 2017. ECF No. 37-16 at 1.3 Through counsel, R.W. appealed Mr. Reagan‘s decision and imposition of sanctions to the Student Appeals Board on May 4, 2017. ECF No. 37-17. The Board unanimously upheld Mr. Reagan‘s imposition of sanctions on May 24, 2017. ECF No. 37-18. R.W. appealed the Board‘s decision to Mr. Thornton on June 7, 2017. ECF No. 37-19. Mr. Thornton affirmed the Board‘s decision on June 12, 2017. ECF No. 37-20.
On July 8, 2021, approximately three years after the event in question, Mr. Reagan issued R.W. a follow-up letter, stating that the sanctions imposed on April 20, 2017, became null and void when R.W. did not enroll in Winter Quarter 2018. ECF Nos. 131 at 137-38, 129 аt 8. R.W. disputes
Procedural History
R.W. filed a complaint against CBC, Mr. Reagan, and Mr. Thornton on May 25, 2018. ECF No. 1. R.W. asserts a
On October 4, 2019, this Court issued an Order Granting in Part Plaintiff‘s Motion for Summary Judgment with respect to liability on his claim under
LEGAL STANDARD
A court may grant summary judgment where “there is no genuine dispute as to any material fact” of a party‘s prima facie case, and the moving party is entitled to judgment as a matter of law.
The moving party
The Court will not infer evidence that does not exist in the record. See Lujan v. Nat‘l Wildlife Fed‘n, 497 U.S. 871, 888-89 (1990). The Court will “view the evidence in the light most favorable” to the nonmoving party. Newmaker v. City of Fortuna, 842 F.3d 1108, 1111 (9th Cir. 2016). “The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
DISCUSSION
Defendants move for partial summary judgment on R.W.‘s request for prospective injunctive relief regarding his First Amendment claim under
I. Eleventh Amendment Immunity
Defendants first argue that they are immune from suit under the Eleventh Amendment of the United States Constitution, which provides the following:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
There are two exceptions to state sovereign immunity under the Eleventh Amendment: (1) a state may consent to being sued and (2) Congress may abrogate state sovereign immunity by appropriate legislation. Virginia Off. for Prot. and Advoc. v. Stewart, 563 U.S. 247, 253-54 (2011). Defendants assert, and Plaintiff does not appear tо challenge, that Washington State has neither waived, nor has Congress abrogated, state sovereign immunity
It is widely recognized that the Eleventh Amendment precludes private damages or suits for injunctive relief against state agencies. Sato, 861 F.3d at 928. In its reply, Defendants argue that R.W. “does not attempt to rebut that CBC is entitled to Eleventh Amendment immunity” as a state agency and that R.W. has therefore “abandon[ed] the uncontested issue.” ECF No. 142 at 7 (citing Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005)). In line with Sato, the burden of asserting Eleventh Amendment immunity rests with Defendant CBC so this Court must analyze its alleged status as a “state agency.” The following five factors help guide the determination of whether a government entity is an arm of the state:
(1) Whether a money judgment would be satisfied out of state funds, (2) whether the entity performs central government functions, (3) whether the entity may sue or be sued, (4) whether the entity has the power to take property in its own name or only the name of the state, аnd (5) the corporate status of the entity.
Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 250-51 (9th Cir. 1992) (quoting Mitchell v. Los Angeles Community Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988)). CBC highlights two sources of authority to support its argument that it is a state agency. First, CBC cites a Washington statute providing that “community colleges are . . an independent, unique, and vital section of our state‘s higher education system, separate from both the common school system and other institutions of higher learning.”
Additionally, the Washington State Supreme Court has concluded that “the legislature intended community colleges, and the operation thereof, to be a state function.” Centralia Coll. Educ. Ass‘n v. Board of Trustees of Community Coll. Dist. No. 12, 82 Wash. 2d 128, 133, 508 P.2d 1357 (1973). Moreover, two separate decisions in this district, albeit unpublished, have concluded that CBC qualifies as a state agency for purposes of the Eleventh Amendment. See Cepeda v. Columbia Basin Community Coll., No. 12-сv-5026-TOR, 2012 WL 6042339, at *2 (E.D. Wash. Dec. 4, 2012); see also Arshad v. Columbia Basin Community Coll., No. cv-05-5019-LRS, 2006 WL 1455656, at *1-2 (E.D. Wash. May 25, 2006). In its statement of supplemental authority, Defendants note that a monetary judgment against CBC “would be satisfied out of state funds[,]” although Defendants fail to cite any authority for this assertion. ECF No. 144 at 3. Defendants also contend that CBC “performs a central government function of education as determined by the legislature” and “has the corporate status of a state agency as created by statute.” Id. (citing
II. Applicability of the Ex parte Young Doctrine to Individual Defendants
In line with CBC‘s Eleventh Amendment immunity, Defendants Ralph Reagan and Lee Thornton argue that they are equally entitled to immunity as state officials sued in their official capacity. ECF No. 128 at 10 (citing Lund v. Cowan, 5 F.4th 964, 969 (9th Cir. 2021)). However, the Eleventh Amendment does not preclude a lawsuit challenging the constitutionality of a state official‘s actions. Ex parte Young, 209 U.S. 123, 167-68 (1908). The Ex parte Young doctrine “has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.‘” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) (quoting Ex parte Young, 209 U.S. at 160).
In determining whether the Ex parte Young doctrine applies, the relevant inquiry is whether the complaint “‘alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.‘” Koala v. Khosla, 931 F.3d 887 (9th Cir. 2019) (quoting Verizon Md. Inc. v. Pub. Serv. Comm‘n of Md., 535 U.S. 635, 645 (2002)). Here, Defendants assert that the sаnctions against R.W. have been withdrawn so there is no ongoing violation of federal law. ECF No. 128 at 11. In response, Plaintiff counters that “Defendants fail to remedy the previously identified consequences of their unlawful conduct including expulsion from the program, failing R.W. in his classes, and suspending his financial aid.” ECF No. 135 at 2. Separately, Plaintiff argues that, despite Defendants’ “voluntary cessation” of the sanctions originally at issue, the unlawful conduct may rise again “absent the imposition of an injunction.” Id. at 11. Therefore, the relevant inquiry for the injunctive relief Plaintiff seeks concerns mootness, voluntary cessation, and redressability.
A. Mootness
“Article III of the Constitution limits federal-court jurisdiction to ‘Cases’ and ‘Controversies.‘” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). A case becomes moot where there are no longer any live issues to resolve or where the parties lose a “legally cognizable interest in the outcome.” Flint v. Dennison, 488 F.3d 816, 823 (9th Cir. 2007). However, mootness “is a flexible justiciability doctrine” and does not apply so long as the court “retains the ability to ‘fashion some form of meaningful relief.‘” Id. (quoting Dream Palace v. County of Maricopa, 384 F.3d 990, 1000 (9th Cir. 2004)).
Based on his complaint, R.W. broadly seeks prospective injunctive relief against CBC, and against Mr. Reagan and Mr. Thornton in their official capacities, “to enjoin their violations of R.W.‘s rights under
In a letter to R.W. dated July 8, 2021, Defendant Reagan stated that the sanctions imposed on R.W.‘s rе-enrollment are no longer in effect. ECF No. 131 at 137-38.8 Defendants contend that the trespass order against R.W. is no longer in place, he is not required to retake all courses already taken to re-enroll in the nursing program, and the condition requiring him to see a mental health counselor is null and void. ECF No. 128 at 15 (citing ECF No. 132 at 3). Defendants therefore argue that R.W.‘s claim for prospective injunctive relief is moot. ECF No. 128 at 13-14 (citing Mutter v. Rodriguez, 700 Fed. App‘x 528 (7th Cir. 2017)). In Mutter, the plaintiff‘s
R.W. does not expressly contest that the sanctions аgainst him have been removed. Instead, he argues that the “purported withdrawal of sanctions . . . does not remotely remedy the injuries arising from Defendants’ unlawful conduct.” ECF No. 135 at 6. Separate from the removal of sanctions, R.W. alleges that he also is seeking (1) reinstatement to the nursing program and (2) removal of negative information on his academic records preventing his qualification for financial aid. ECF No. 135 at 7-10 (citing Flint v. Dennison, 488 F.3d 816, 824 (9th Cir. 2007) (declining to dismiss the action as moot where former student‘s records still contained evidence of disciplinary sanctions); Constantine v. Rectors and Visitors of Geo. Mason Univ., 411 F.3d 474, 496 n.15 (4th Cir. 2005) (ruling that student who graduated could still pursue request that the school expunge a failing grade from her record); Ashokkumar v. Elbaum, 932 F. Supp. 2d 996, 1007 (D. Neb. 2013) (finding that plaintiff had alleged a colorable
1. Reinstatement
CBC counters that R.W.‘s request for reinstatement is not an available remedy because the sanctions imposed by Mr. Reagan did not result in R.W.‘s susрension or expulsion. In reversing this Court‘s finding on qualified immunity, the Ninth Circuit determined CBC‘s response to R.W.‘s violent ideations “was not suspension or expulsion from the College, but rather a process for re-enrollment in a manner the College deemed safe.” ECF No. 56 at 3. Defendants argue that this statement by the Ninth Circuit is the “law of the case” and “because R.W. was not expelled, reinstatement is not a proper remedy.” ECF No. 142 at 2-3.
The Ninth Circuit recognizes that “reinstatement constitutes prospective injunctive relief” and is an appropriate remedy for suits against individual defendants in their official capacity. Doe v. Lawrence Livermore Nat. Laboratory, 131 F.3d 836, 840, 842 (9th Cir. 1997). While R.W. was not officially suspended from CBC‘s nursing program, the nature of the trespass order, combined with the strict, progressive schedule for the nursing program and the impact on his ability to obtain financial aid, arguably constituted a de facto suspension. See ECF Nos. 37-
119 at 1, 34 at 1–2. Defendants may have removed the sanctions against R.W., but his path to reenrollment in the nursing program remains uncertain. See e.g., ECF Nos. 131 at 36 (CBC Nursing Student Handbook notes that “[t]о remain in the nursing program a 2.0 grade or higher must be attained in all major courses“), 133 at 3 (current CBC President Woods indicates that she would “seek the advice and consent of the Board of Trustees” before waiving the requirements of the Nursing Program Student Handbook as to R.W., specifically). Therefore, the Court finds that reinstatement is an appropriate remedy that falls under the other forms of just and equitable relief that Plaintiff seeks.
2. Removal of Failing Grades from R.W.‘s Transcript
R.W. separately requests that Defendants remove negative information from his academic records. ECF No. 135 at 8–9. Before the trespass order was issued against R.W., he was “a student in good standing enrolled in the nursing program.” Id. at 10. Following the disciplinary conduct at issue here, CBC “issued R.W. zeroes in each of his classes,” rendering him “ineligible for federal financial aid . . . at any college program.” Id. (citing ECF Nos. 37-4 at 4, 139 at 2). In Flint, the Ninth Circuit determined a former student‘s claims were not moot so long as his reсord still contained evidence of disciplinary sanctions and the student was seeking the expungement of any mention of the sanctions from his records. 488 F.3d at 824. Similarly, the Fourth Circuit determined that while the plaintiff‘s graduation from law school mooted most her claims for injunctive relief, her request to expunge a failing grade from her record was not moot. Constantine, 411 F.3d at 496 n.15.
Here, R.W.‘s complaint did not specifically request that Defendants remove the zeroes from his academic transcript for Winter Quarter 2017. Nevertheless, this remedy falls under his request for “all other relief the court deems just and equitable.” ECF No. 1 at 10. This remedy is distinguishable from the plaintiff in Mutter who was “on the hook” to the U.S. Air Force “for tuition it paid on his behalf.” 700 Fed. App‘x at 531. There, plaintiff‘s economic injury was essentially a request
R.W.‘s request for the removal of sanctions against him are not moot at this point, regardless of whether the sanctions were removed this year or when he failed to reenroll in 2018. R.W.‘s request for reinstatement remains an appropriate remedy because the Ninth Circuit‘s characterization of R.W.‘s disenrollment is dicta and is not controlling in this case.
Furthermore, R.W.‘s request to remove his negative academic information is a meaningful form of relief that is not moot. Although R.W. did not specifiсally request expungement of the failing grades in his complaint, this remedy is a form of just and equitable relief that the Court can provide. See Bayer v. Neiman Marcus Group, Inc., 861 F.3d 853 (9th Cir. 2017) (for purposes of mootness, “‘[t]he question is not whether the precise relief sought at the time the case was filed is still available,’ but ‘whether there can be any effective relief.‘” (quoting McCormack v. Herzog, 788 F.3d 1017, 1024 (9th Cir. 2015))). While R.W.‘s failing grades may have arisen from his voluntary decision to seek treatment, a material question of fact remains as to whether R.W.‘s disenrollment from Winter Quarter 2017 (and subsequent failing grades) equally stemmed from the imposition of the trespass order and, with it, the inability to attend his classes.
Genuine issues of material fact remain regarding whether R.W.‘s failing grades were the result of his seeking treatment or the result of CBC‘s trespass of him. Accordingly summary judgment is not appropriate.
B. Voluntary Cessation
Plaintiff also argues that the facts surrounding Defendants’ voluntary cessation of the sanctions at issue rаises the strong possibility that the alleged unlawful conduct will “arise again absent the imposition of an injunction.” ECF No. 135 at 11. The voluntary cessation of challenged conduct moots a case “only if it is ’absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.‘” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (quoting United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)). The burden for the party alleging mootness is heavy, if not formidable. Rosebrock v. Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (“The party asserting mootness bears a ‘heavy burden.‘“); see also DeJohn v. Temple University, 537 F.3d 301, 309 (3d Cir. 2008) (describing the burden of showing mootness as heavy and formidable).
In DeJohn, the plaintiff challenged the university‘s sexual harassment policy as having “a chilling effect on his ability to exercise his constitutionally protected rights.” Id. at 305. Temple University changed its policy “more than a year after the commencement of litigation and then only near the end of discovery.” Id. at 309. The Third Circuit determined that the voluntary cessation of the original policy did not moot plaintiff‘s сlaim because the university‘s decision to defend the need for an
Similar to DeJohn, Plaintiff argues that the removal of sanctions in this case “occurred more than three years after this litigation commenced and almost two years after this Court determined that Defendants violated R.W.‘s First Amendment rights as a matter of law.” ECF No. 135 at 13. Defendants counter that R.W.‘s sanctions “became defunct” when he did not reenroll in Winter Quarter 2018. ECF No. 131 at 4. However, in the letter addressed to R.W. on April 20, 2017, Mr. Reagan simply states that R.W.‘s “sanctions are as follows: [(1) successful re-enrollment in the nursing program, (2) participation in mental health counseling, and (3) completion of a mental health evaluation in October of 2017].” ECF No. 131 at 134. The letter does not state that the sanctions are contingent on a particular reenrollment date. Id. It appears from the record that the sanctions were not removed until July 2021, approximately three years after the events at issue, after the Ninth Circuit‘s decision was issued, and one month before Defendants filed the instant motion.
The next issue is whether Defendants Ralph Reagan and Lee Thornton reasonably could be expected to engage in the same allegedly wrongful behavior. See Adarand Constructors, Inc., 528 U.S. at 222 (requiring the party asserting mootness to meet the heavy burden of demonstrating that the challenged conduct cannot reasonably be expected to recur). Mr. Reagan and Mr. Thornton contend that they are incapable of engaging in the same behavior because Mr. Reagan lacks the same sanction authority that he once had and Mr. Thornton no longer works at CBC. ECF No. 142 at 8–9. Defendants cite no authority for the argument that the relevant inquiry for voluntary cessation is on the individual actors’ subsequent authority rather than on the allegedly unlawful conduct. Moreover, CBC‘s new process for issuing sanctions,9 seemingly instituted years after this litigation commenced, leaves open the possibility that Mr. Reagan may regain his original sanction authority.
The Court finds that Defendants have not met the high standard to establish mootness. Rosebrock, 745 F.3d at 971; DeJohn, 537 F.3d at 309.
C. Redressability
In addition to mootness, Defendants argue that they cannot provide redressability for the prospective relief sought because Lee Thornton no longer works at CBC and Ralph Reagan lacks the authority to abrogate nursing program requirements. ECF No. 128 at 15. The Court separately analyzes the current roles and authority of Defendants Lee Thornton and Ralph Reagan.
1. Former President Thornton and Possible Substitution
Beginning in November 2017, approximately six months before Plaintiff filed his complaint, Rebekah Woods became CBC‘s President. ECF No. 133 at 1. Lee Thornton served as the Interim President before her, but he “is now retired and is no longer employed” by CBC. Id. Therefore, Defendants argue that Lee Thornton is incapable of providing the relief R.W. seeks. ECF No. 128 at 15. For support, Defendants point to one case within the Ninth Circuit where the official‘s connection to the challenged action was too attenuated to sufficiently redress the plaintiff‘s
Outside of the Ninth Circuit, Defendants note that courts have barred injunctive relief against parties who lost a connection to the plaintiff‘s claims. See ECF No. 128 at 16 (citing Randolph v. Rodgers, 253 F.3d 342, 346 (8th Cir. 2001) (injunctive relief not available against four individually named defendants employed at a prison because plaintiff was transferred to a new prison); Ashokkuma v. Elbaum, 932 F. Supp. 2d 996, 1010 (D. Neb. 2013) (individual defendant who was no longer employed at university could not implement plaintiff‘s requested injunctive relief)).
In response, Plaintiff argues that he is entitled to automatically substitute current-President Rebekah Woods “in regard to the claims against Lee Thornton in his official capacity.” ECF No. 135 at 14. The
Defendants counter that Lee Thornton “was no longer a ‘public officer’ at the time the lawsuit was initiated” so Rule 25 does not allow for the substitution of Rebekah Woods into the lawsuit now. ECF No. 142 at 7 (citing Schlumpberger v. Osborne, No. 0:16-cv-78-SRN-TNL, 2019 WL 927322, *3 (D. Minn. Feb. 26, 2019)). The Schlumpberger court denied substitution in line with other jurisprudence suggesting a Rule 25(a)(1) substitution “cannot be ordered ‘where the person for whom substitution is sought died prior to being named a party.‘” 2019 WL 927322, at *3 (citing Lacy v. Tyson, No. 1:07-cv-00381-LJO-GSA-PC, 2012 WL 4343837, at *2 (E.D. Cal. Sept. 20, 2012)). But the reason for denying substitution in Schlumpberger and other cases like it can be distinguished from the instant case, because “a dead man obviously cannot be named party defendant in an action.” Chorney v. Callahan, 135 F. Supp. 35, 36 (D. Mass. 1955); see also Laney v. South Carolina Dep‘t of Corrections, No. CA 4:11-3287-JMC-TER, 2012 WL 4069680 (D.S.C. May 8, 2012) (“Obviously, a deceased person cannot be served and respond to a lawsuit.“).
Unlike defendants who died prior to the filing of a lawsuit, Mr. Thornton was not only served, but he also answered the complaint against him. Nowhere in that answer does he dispute Plaintiff‘s ability to sue him in his official capacity for “claims seeking prospeсtive, injunctive relief.” ECF No. 12 at 2. Therefore, this Court is well within its discretion to allow for the substitution of Defendant Rebekah Woods in her official capacity under Rule 25(d), which the Court does allow.
2. Assistant Dean Reagan‘s Authority
Separately, Defendants argue that Mr. Reagan “does not have the authority to abrogate the nursing program requirements for R.W.” or to reinstate him “into
To summarize, Defendants fail to demonstrate that Plaintiff‘s
III. Free Speech in the Higher Education Setting
This Court already granted R.W.‘s motion for summary judgment regarding his First Amendment claim brought under
At the outset, CBC concedes that the Mahanoy decision “did not explicitly address the question of whether Tinker applied in the collegiate setting.” Id. at 18. Nevertheless, Defendants argue that Justice Alito‘s concurrence “leaves open that possibility,” by recognizing the following:
This case does not involve speech by a student at a public college or university. For several reasons, including the age, independence, and living arrangements of such students, regulation of their speech may raise very different questions from those presented here. I do not understand the decision in this case to apply to such students.
141 S. Ct. at 2049, n.2 (Alito, J., concurring).
As R.W. points out, Justice Alito‘s concurrence “strongly implies the opposite” of Defendants’ contention. ECF No. 135 at 16. The recognition that “age” and “independence” are different in a university setting suggests that university students enjoy more First Amendment protections than school-age children. This is especially true given the Mahanoy majority‘s conclusion that the special characteristics of the school environment includes “the fact that schools at times stand in loco parentis, i.e., in the place of parents.” Id. at 2045 (citing Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 684 (1986)). The doctrine of in loco parentis does not apply in the university setting for independent, young adults. Moreover, the applicability of the in loco parentis doctrine to a public high school setting in Mahanoy did not prevent the Court from ultimately concluding that the school violated the plaintiff-student‘s First Amendment rights regarding her speech off campus. See id. at 2047 (noting that the student‘s speech, though vulgar, “did not amount to fighting words” and was transmitted “through a personal cellphone, tо an audience consisting of her private circle of Snapchat friends“).
Not to be dissuaded, Defendants cite to other opinions that do apply the Tinker analysis in a collegiate setting. ECF No. 128 at 18–20 (citing Healy v. James, 408 U.S. 169, 180, 189–91 (1972); Doe v. Valencia Coll., 903 F.3d 1220, 1227 (11th Cir. 2018); Keefe v. Adams, 840 F.3d 523, 531 n.6 (8th Cir. 2016); Castle v. Marquardt, 632 F. Supp. 2d 1317, 1335-36 (N.D. Ga. 2009); Murakowski v. Univ. of Delaware, 575 F. Supp. 2d 571, 591 (D. Del. 2008)). However, these cases do not align with the facts in this case.
In Healy, the Court made clear that, unlike K-12 schools, “the precedents of this Court leave no room for the view that . . . First Amendment protections should apply with less force on college campuses than in the community at large,” especially given that the “college classroom . . . is peculiarly the ‘marketplace of ideas.‘” 408 U.S. at 180 (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)). The Court did conclude that student associations “need not be tolerated where they infringe reasonable campus rules, interrupt classes, or substantially interfere with the opportunity of other students to obtain an education.” Id. at 189. However, the associational conduct at issue in Healy was occurring on campus, which is distinguishable from this сase where R.W. made statements privately to his doctor while seeking medical treatment.
The circuit opinions that Defendants cite also contain important distinctions from the facts of this case. In Doe, the plaintiff‘s alleged stalking behavior invaded the victim‘s rights “to be secure and to be let alone... from persistent unwanted advances and related insults from another student.” 903 F.3d at 1229-30. R.W., in contrast, did not physically invade anyone else‘s rights. He made the comments while seeking medical treatment.
In Keefe, the plaintiff was removed from a nursing program after receiving complaints from fellow students about unprofessional posts on his personal Facebook page. 840 F.3d at 525. Relevant there, the
The district court decisions cited by Defendants also reveal notable differences from the conduct at issue here. First, the Castle case involved a student‘s retaliation claim based on her allegedly unlawful suspension for filing a complaint about her instructors. 632 F. Supp. 2d at 1322. Applying Tinker, the court concluded that the speech did not cause a “substantial disruption or material interference with school activities.” Id. at 1336 (quoting Tinker, 393 U.S. at 514). Here, the substantial disruption on CBC‘s campus stemmed from CBC‘s own decision to directly inform the instructors who were the subjects of R.W.‘s troubling thoughts. ECF No. 37-10 at 2. R.W.‘s private remarks to his doctor differ greatly from the student‘s direct interaction with university personnel in Castle or the posts made on a public website in Keefe.
Similarly, the location where the speech originated in Murakowski is distinguishable from this case. See 575 F. Supp. 2d at 574 (challenging the University of Delaware‘s disciplinary action after plaintiff posted allegedly threatening comments on a website maintained on the University‘s server). There, the court, in analyzing whether the message constituted a “true threat,” noted that the recent events unfolding with the Virginia Tech shooting likely “factored into the University‘s response.” Id. at 592. Nevertheless, the court ruled in favor of the student because the university failed to show that the student‘s articles “created disruption or significantly and adversely impacted the college community.” Id.
Neither the Ninth Circuit nor the Supreme Court has signaled that Tinker‘s “substantial disruрtion” test applies in university settings. In Oyama v University of Hawaii, 813 F.3d 850 (9th Cir. 2015), the court‘s ruling suggests the opposite. See id. at 863 (noting that (1) the university‘s “institutional responsibility,” and not the pedagogical concerns of the student speech doctrine, is the reason the University regulated plaintiff‘s speech and (2) the “student speech doctrine fails to account for the vital importance of academic freedom at public colleges and universities“). Defendants counter that the speech in Oyama, “while perhaps distasteful or controversial, is a far cry from the threats of violence made by R.W. to attack three of his instructors.” ECF No. 142 at 10–11. This Court already decided that there “is no evidence supporting that R.W. ever intended or ever expected that the statements that he made to his doctor for the purposes of medical treatment would reach his instructors and intimidate them.” ECF No. 83 at 15. The cases cited by Defendants do nothing to disrupt that finding.
CONCLUSION
The Court finds that Defendant CBC is еntitled to immunity under the
Accordingly, IT IS HEREBY ORDERED:
- Defendants’ Motion for Partial Summary Judgment, ECF No. 128, is GRANTED IN PART with respect to Defendant Columbia Basin College only. Plaintiff‘s claim for injunctive relief under
§ 1983 against Defendant Columbia Basin College is DISMISSED WITH PREJUDICE. - The remainder of Defendants’ Motion for Partial Summary Judgment, ECF No. 128, is DENIED.
- Rebekah Woods is hereby substituted as party defendant in her official capacity for Defendant Lee Thornton in his official capacity. Mr. Thornton remains a party defendant in his individual capacity in regard to Plaintiff‘s disability discrimination claim under Washington State law.
IT IS SO ORDERED. The District Court Clerk is directed to enter this Order, enter judgment for Defendant Columbia Basin College only regarding Plaintiff‘s
DATED November 19, 2021.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
United States District Judge