Monteleone v. University of Arizona Dean of Student's Office

• Court: District Court, D. Arizona
• Decided: January 11, 2021
• Docket: 4:20-cv-00189
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Robert Paul Monteleone, No. CV-20-00189-TUC-JAS (MSA)

10 Plaintiff, REPORT AND RECOMMENDATION 11 v.

12 University of Arizona Dean of Student’s Office, et al., 13 Defendants. 14 15 Pending before the Court is Defendants Arizona Board of Regents (the “Board”), 16 University of Arizona Dean of Students Office, University of Arizona Police Department, 17 and University of Arizona Parking and Transportation Services’ motion to dismiss. (Doc. 18 11.) The motion has been fully briefed. (Docs. 18, 19.) For the following reasons, the Court 19 will recommend that the motion be granted and that this matter be dismissed with prejudice. 20 I. Factual Allegations 21 Plaintiff is a student at the University of Arizona. (Doc. 10 at 2–3.) He was charged 22 with committing two violations of the University’s code of conduct after he allegedly had 23 an altercation with an employee of the University’s parking and transportation services. 24 (Id. at 1-2.) Plaintiff received a hearing on the charges on November 1, 2019. (Id. at 1.) 25 The employee in question did not attend the hearing, but her alleged statements were 26 introduced as evidence against Plaintiff. (Id. at 1–2.) Plaintiff never received an opportunity 27 to cross-examine the employee. (Id. at 2.) School officials found, based on speculation and 28 false statements, that Plaintiff committed the violations and suspended him for one 1 academic year. (Id. at 1–2.) 2 Plaintiff alleges that he was deprived of his confrontation rights under the Sixth 3 Amendment in violation of 42 U.S.C. § 1983. (Id. at 1.) He seeks injunctive relief as well 4 as $4,065,000 in damages. (Id. at 3.) 5 II. Legal Standard 6 A complaint must contain “a short and plain statement of the claim showing that the 7 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This standard “does not require 8 ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant- 9 unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 10 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). It is satisfied if the claim has “facial 11 plausibility,” meaning there is “factual content that allows the court to draw the reasonable 12 inference that the defendant is liable for the misconduct alleged.” Id. 13 A defendant may challenge the sufficiency of a complaint by filing a motion under 14 Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can 15 be granted.” A motion to dismiss under Rule 12(b)(6) may be “based on the lack of a 16 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 17 theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citing 18 Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533–34 (9th Cir. 1984)). In 19 determining whether the plaintiff has stated a plausible claim, the court “must take all the 20 factual allegations in the complaint as true,” but it need not “accept as true a legal 21 conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). 22 III. Discussion 23 A. Nonjural Defendants 24 In Arizona, lawsuits against a university must be brought against the Board. Ariz. 25 Rev. Stat. § 15-1625(B)(3). Here, Plaintiff has also sued the University of Arizona Dean 26 of Students Office, the University of Arizona Police Department, and the University of 27 Arizona Parking and Transportation Services. These entities, which were created by the 28 Board, are mere departments within the University and thus are incapable of being sued in 1 their own names. See Ariz. Rev. Stat. § 15-1625(A) (stating that the “board has jurisdiction 2 and control over the universities”); Ariz. Rev. Stat. § 15-1626(A)(3) (stating that the Board 3 has power to hire officers and employees “in connection with the operation” of 4 universities); see also Goode v. Alfred, 828 P.2d 1235, 1236–37 (Ariz. Ct. App. 1991) 5 (holding that the Board has power to establish a university police force). As such, any 6 claims against them must be asserted against the Board. 7 B. Eleventh Amendment Immunity 8 The Board contends that Plaintiff’s claim fails as a matter of law because it has 9 immunity under the Eleventh Amendment. “The Eleventh Amendment bars suits against 10 the State or its agencies for all types of relief, absent unequivocal consent by the state.” 11 Krainski v. Nevada ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 967 12 (9th Cir. 2010) (quoting Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999)). The Board 13 “is an arm of the State of Arizona for Eleventh Amendment purposes,” and it has not 14 consented to this lawsuit. Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 15 (9th Cir. 2016). Consequently, Plaintiff’s claim for injunctive relief and monetary damages 16 is barred.1 17 Plaintiff argues that his lawsuit falls within the exception recognized in Ex Parte 18 Young, 209 U.S. 123 (1908). “The Young doctrine allows individuals to pursue claims 19 against a state for prospective equitable relief, including any measures ancillary to that 20 relief.” Ariz. Students’ Ass’n, 824 F.3d at 865 (first citing Green v. Mansour, 474 U.S. 64, 21 68–71 (1985); and then citing Hutto v. Finney, 437 U.S. 678, 689–92 (1978)). To assert a 22 claim under this doctrine, the plaintiff must seek injunctive relief to correct “ongoing 23 violations of federal law.” Koala v. Khosla, 931 F.3d 887, 895 (9th Cir. 2019). And, in 24 cases like this one, the plaintiff must name as the defendant “either the President, Chair, or 25 other members of [the Board] in their official capacities.” Ariz. Students’ Ass’n, 824 F.3d

26 1 Assuming that the University of Arizona Dean of Students Office, the University of Arizona Police Department, and the University of Arizona Parking and Transportation 27 Services were properly named, they would also be entitled to Eleventh Amendment immunity. These entities are under the Board’s control, and the Board is an arm of the state. 28 See Lewis v. Clarke, 137 S. Ct. 1285, 1290 (2017) (“[A]n arm or instrumentality of the State generally enjoys the same immunity as the sovereign itself.”). 1 at 865. 2 Here, Plaintiff makes at least two appropriate requests for prospective injunctive 3 relief. He asks that he be reinstated as a student in good standing and that his disciplinary 4 record be expunged. See Doe v. Lawrence Livermore Nat’l Lab’y, 131 F.3d 836, 841 (9th 5 Cir. 1997) (holding that job reinstatement is prospective injunctive relief); Flint v. 6 Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (holding that expungement of a school 7 disciplinary record is prospective injunctive relief). However, Plaintiff did not name a 8 member of the Board as the defendant. As such, his claim is not covered by the Young 9 exception. 10 C. Failure to State a Claim 11 The Board argues that Plaintiff has failed to adequately plead a § 1983 claim. To 12 establish a § 1983 claim, the plaintiff must prove among other things that he was deprived 13 of a constitutional right or a federal statutory right. Long v. County of Los Angeles, 442 14 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Here, 15 Plaintiff alleges that he was deprived of his confrontation rights under the Sixth 16 Amendment when he was denied the opportunity, during school disciplinary proceedings, 17 to cross-examine a witness against him. However, the Sixth Amendment grants 18 confrontation rights only in “criminal prosecutions,” and school disciplinary proceedings 19 are not criminal prosecutions. U.S. Const. amend. VI. As Plaintiff has not alleged that he 20 was deprived of a federal right, he has failed to plead the elements of a § 1983 claim.2 21 D. Res Judicata 22 The Board contends that Plaintiff’s claim is barred by res judicata. “Under Arizona 23 law, a party’s failure to appeal a final administrative decision makes that decision final and 24 res judicata.” Olson v. Morris, 188 F.3d 1083, 1086 (9th Cir. 1999) (first citing Hawkins v. 25 Arizona, 900 P.2d 1236, 1239–40 (Ariz. Ct. App. 1995); and then citing Guertin v. Pinal 26 County, 875 P.2d 843, 845 (Ariz. Ct. App. 1994)). Federal courts afford the same deference 27 to administrative decisions if (1) the administrative agency that issued the decision acted

28 2 Plaintiff makes a passing reference to “due process” in his first amended complaint, but his § 1983 claim is not based on a violation of substantive or procedural due process. 1 in a “judicial capacity,” (2) the agency resolved “disputed issues of fact properly before 2 it,” and (3) the parties had an “adequate opportunity to litigate.” Miller v. County of Santa 3 Cruz, 39 F.3d 1030, 1032–33 (9th Cir. 1994) (citing United States v. Utah Constr. & 4 Mining Co., 384 U.S. 394, 422 (1966)). 5 Here, these requirements are satisfied. The Board acted in a judicial capacity and 6 resolved disputed issues of fact properly before it. It considered argument and evidence 7 presented both by Plaintiff and a University representative. Based on that presentation, it 8 concluded that Plaintiff engaged in threatening behavior towards another person, thus 9 violating the University code of conduct. (Doc. 11-5; Doc. 18-2.) Plaintiff also had an 10 adequate opportunity to litigate these issues. Pursuant to the University’s Student 11 Disciplinary Procedures, Plaintiff gave a statement to the dean of students before a decision 12 was made on the charges. (Doc. 11-3.) Plaintiff then had the dean’s decision reviewed by 13 a University hearing board and the provost. (Docs. 11-4, 11-5.) Plaintiff could have 14 appealed the provost’s decision to the Arizona superior court under Ariz. Rev. Stat. § 12- 15 904. He could have further appealed to the Arizona Supreme Court under Ariz. Rev. Stat. 16 § 12-913. These procedures constitute an adequate opportunity to litigate. See Quade v. 17 Ariz. Bd. of Regents, 700 F. App’x 623, 625 (9th Cir. 2017) (reaching the same 18 conclusion).3 19 Because Plaintiff did not appeal to the Arizona superior court, the Board’s adverse 20 decision is final, and this action is barred. See id. at 625–26 (holding that a student’s claims 21 were barred by res judicata because he did not seek a rehearing or appeal to the superior 22 court); Green v. Ariz. Bd. of Regents, No. CV-18-04665-PHX-SPL, 2020 WL 2512759 (D. 23 Ariz. May 15, 2020) (same). Plaintiff resists this conclusion, arguing that he received 24 inadequate notice of his appellate rights. However, the record shows that Plaintiff was 25 directed to the University’s Student Disciplinary Procedures on at least three occasions. 26 (Doc. 11-2 (March 24, 2019); Doc. 11-3 (July 23, 2019); Doc. 11-5 (December 3, 2019).)

27 3 Plaintiff also could have sought a rehearing before the provost under Disciplinary Procedure 5-403(G). (Doc. 11-6 at 11–12.) This procedure is specifically designed to 28 address “irregularities or illegalities” that “deprived the student of a fair and impartial disciplinary process.” (Id. at 11.) 1 || This document outlines the procedures described above, including the right to appeal to the superior court. (Doc. 11-6 at 11.) Plaintiff received adequate notice. 3 E. Leave to Amend 4 “TI]n dismissing for failure to state a claim under Rule 12(b)(6), ‘a district court 5 || should grant leave to amend even if no request to amend the pleading was made, unless it 6 || determines that the pleading could not possibly be cured by the allegation of other facts.’” 7\| Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (quoting Doe v. United || States, 58 F.3d 494, 497 (9th Cir. 1995)). Here, amendment would be futile because 9|| Plaintiff's claim is barred by res judicata. There are no other facts that could cure this defect. See Olson, 188 F.3d at 1086 (stating that res judicata bars claims based “not only 11 || upon facts actually litigated but also upon those points that might have been litigated”’). 12 IT ISRECOMMENDED that Defendants’ motion to dismiss (Doc. 11) be granted 13 || and that this matter be dismissed with prejudice. 14 This recommendation is not immediately appealable to the United States Court of 15 || Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service 16 || of a copy of this recommendation within which to file specific written objections with the 17 || district court. The parties shall have fourteen days within which to file responses to any 18 || objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). No replies may be filed absent □□ prior authorization by the district court. Failure to file timely objections may result in the 20 || acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). 22 Dated this 11th day of January, 2021.

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