Bailey v. Casper College

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 1, 1999
• Docket: 98-8074
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAR 1 1999 TENTH CIRCUIT PATRICK FISHER Clerk

CORALEE BAILEY,

Plaintiff - Appellant, v.

CASPER COLLEGE; CASPER COLLEGE BOARD OF TRUSTEES; WARREN MORTON; JANE KATHERMAN; LINDA NIX; ROBERT MCCRARY, individually and in their official capacities as Casper College Board of Trustees Members; LEROY STRAUSNER, individually and in his official No. 98-8074 capacity as President of Casper (D.C. No. 97-CV-1051) College; RUTH ANN ATNIP; (District of Wyoming) PATRICIAL LANSING; JOLENE LANGDON, individually as in their official capacities as an Instructor of Casper College; JUDITH TURNER, individually and in her official capacity as Director of Associate Degree Nursing Program of Casper College; WILLIAM HENRY, individually and in his official capacity as Casper college Board of Trustees Member,

Defendants - Appellees.

ORDER AND JUDGMENT *

* The case is unanimously ordered submitted without oral argument (continued...) Before BRORBY, EBEL and LUCERO, Circuit Judges.

Coralee Bailey appeals the district court’s grant of summary judgment in

favor of Casper College on various federal and state law claims she brought

following her expulsion from the College’s nursing program. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

“We review the grant or denial of a motion for summary judgment de novo,

applying the same legal standard used by the district court pursuant to

Fed.R.Civ.P. 56(c).” Seymore v. Shawver & Sons, Inc., 111 F.3d 794, 797 (10th

Cir. 1997) (citation omitted). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).

Furthermore, we may affirm the district court’s decision “on any grounds for

which there is a record sufficient to permit conclusions of law.” United States v.

* (...continued) pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

-2- Sandoval , 29 F.3d 537, 542 n.6 (10th Cir. 1994). The party that appeals a grant

of summary judgment must present more than conclusory allegations to establish

the existence of a genuine issue for trial. See Setliff v. Memorial Hosp. , 850

F.2d 1384, 1392 (10th Cir. 1988).

First, we dismiss appellant’s claim that the College violated the “Age

Discrimination Act,” which the district court failed to address. Even if this claim

was not waived because of appellant’s failure to appeal the issue, and even if we

construe her pro se complaint liberally, appellant has failed to identify a federal

or state statute that would provide her with relief for the discrimination she

alleges.

Next, we affirm the district court’s conclusion that appellant failed to

comply with the statute of limitations for all of her remaining claims except her

claim of breach of contract. See Bailey v. Casper College , No. 97-CV-1051-B, at

4 (D. Wyo. Aug. 4, 1998). On appellant’s state fraud and tort claims, the statute

of limitations is four years. See Wyo. Stat. Ann. § 1-3-105(a)(iv) (Michie 1997).

Furthermore, the statute of limitations on appellant’s § 1983 due process and

§ 1985 conspiracy claims is also four years. See Wilson v. Garcia , 471 U.S. 261,

276 (1985) (holding that the statute of limitations of state tort law applies in

§ 1983 claims); Crosswhite v. Brown , 424 F.2d 495, 496 & n.2 (10th Cir. 1970)

(same for § 1985 claims).

-3- Under Wyoming law, the statute of limitations begins to run when a

plaintiff knows or has reason to know that a cause of action exists. See James v.

Montoya , 963 P.2d 993, 995 (Wyo. 1998). Although appellant’s brief alleges

that the district court either perpetrated or was the unwitting victim of fraud in

the presentation of incorrect facts as uncontroverted evidence, the district court

correctly found that the statute of limitations accrued when she learned in April

1993 that she was to be expelled from the nursing program. Appellant filed her

complaint on September 15, 1997. Even if we were to assume that appellant’s

due process claim was tolled while she pursued the College’s internal

administrative procedures, upon reviewing the record, we would affirm the

district court’s finding that the process afforded by the College was

“overwhelmingly adequate.” Bailey , No. 97-CV-1051-B, at 8. Therefore, the

majority of her claims are barred by the statute of limitations.

As for appellant’s breach of contract claim, we affirm the district court’s

finding that the College’s expulsion of appellant for failing to meet its academic

requirements did not constitute a breach of contract. See id. at 9.

We therefore AFFIRM the district court’s grant of summary judgment.

-4- The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

-5-