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Childers v. Florida Gulf Coast University Board of Trustees

United States District Court, M.D. Florida, Fort Myers Division

March 31, 2017

CODY K. CHILDERS, Plaintiff,



         Pending before the Court are Defendants' Omnibus Motion to Dismiss Plaintiff's Amended Complaint, and Alternative Motion for Summary Final Judgment filed on April 5, 2016 (Doc. 42), Plaintiff's response in opposition thereto filed on April 30, 2016 (Doc. 48), Defendants' reply filed on May 27, 2016 (Doc. 53), Defendants' corrected reply filed on June 1, 2016 (Doc. 54), and Defendants' notice of supplemental authority filed on February 22, 2017 (Doc. 60).

         For the reasons set forth in this Opinion and Order, Defendants' Motion (Doc. 42) is GRANTED IN PART and DENIED IN PART.


         Defendants' Motion is brought pursuant to Fed.R.Civ.P. 12(b)(6) and, in the alternative, Fed.R.Civ.P. 12(d) and 56. (Doc. 42 at 1, 11, 25).

         Federal Rule of Civil Procedure 12(b)(6) allows a court to dismiss a complaint when it fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss, a court must accept all factual allegations contained in the complaint as true. Erickson v. Pardus, 551 U.S. 89, 94 (2007). The court must also construe those factual allegations in the light most favorable to the plaintiff. Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). Conclusory allegations and legal conclusions are not entitled to a presumption of truth, however. See Ashcroft v. Iqbal, 556 U.S. 662, 664, 678 (2009).

         To withstand a motion to dismiss, the complaint must include “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In deciding a Rule 12(b)(6) motion to dismiss, the Court limits its consideration to well-pleaded factual allegations, documents central to, or referenced in, the complaint, and matters judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). Under Fed.R.Civ.P. 10(c), “attachments are considered part of the pleadings for all purposes, including a Rule 12(b)(6) motion.” Solis-Ramirez v. U.S. Dep't of Justice, 758 F.2d 1426, 1430 (11th Cir. 1985).

         If a court considers matters that are outside a pleading on a motion to dismiss for failure to state a claim, the motion must be treated and disposed of as if it were a motion for summary judgment under Fed.R.Civ.P. 56. See Fed. R. Civ. P. 12(d). “‘While the Court may convert a motion to dismiss to a motion for summary judgment and consider matters submitted outside the pleadings, the decision to do so is within the Court's discretion.'” Muller v. Freedom Med. Pa., Inc., No. 8:15-cv-822-T-24MAP, 2015 WL 4770803, at *2 (M.D. Fla. Aug. 12, 2015) (quoting Dawkins v. Picolata Produce Farms, Inc., No. 3:05-cv-559-J-32MMH, 2005 WL 3054054, at *2 (M.D. Fla. Nov. 15, 2005)). “A document attached to a motion to dismiss may be considered by the court without converting the motion into one for summary judgment only if the attached document is: (1) central to the plaintiff's claim; and (2) undisputed.” Slakman v. Admin. Comm. of Delta Air Lines, Inc., 660 F. App'x 878, 879 (11th Cir. 2016); see also Romano v. Rambosk, No. 2:12-cv-313-FtM-29UAM, 2014 WL 103171, at *5-6 (M.D. Fla. Jan. 9, 2014).

         Pursuant to Fed.R.Civ.P. 56(a), the entry of summary judgment is appropriate only when the Court is satisfied that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” A genuine dispute of material fact exists if “the evidence is such that a reasonable jury could return a verdict” for the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Which facts are material depends on the underlying substantive law. Id. “As a general rule[, ] summary judgment should not be granted until the party opposing the motion has had an adequate opportunity to conduct discovery.” Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841, 843 (11th Cir. 1989).

         In considering summary judgment, the Court must examine the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits and other evidence in the record in the light most favorable to the non-moving party. See Samples v. Atlanta, 846 F.2d 1328, 1330 (11th Cir. 1988). The moving party bears the initial burden of establishing the nonexistence of a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant succeeds in that regard, the burden of production shifts to the non-moving party who must then come forward with “sufficient evidence of every element that he or she must prove.” Rollins v. TechSouth, 833 F.2d 1525, 1528 (11th Cir. 1987). The non-moving party may not simply rest on the pleadings, but must use affidavits, depositions, answers to interrogatories, or other admissible evidence to demonstrate that a material fact issue remains to be tried. Celotex, 477 U.S. at 324.


         A. The Amended Complaint and Exhibits Attached Thereto

         Drawing all reasonable inferences in favor of Plaintiff, the following facts are taken from the factual allegations in the Amended Complaint (Doc. 36) and Exhibits A-G attached thereto (Docs. 36-1 - 36-7).[1]

         1. The Parties

         Plaintiff was a student enrolled in the Doctor of Physical Therapy program at Florida Gulf Coast University (the “FGCU-DPT program”) until he was dismissed from the program on February 20, 2015. (Doc. 36 at ¶¶ 7, 16). All of Plaintiff's claims in this case relate to his dismissal from the FGCU-DPT program and certain events that occurred in connection with his dismissal. (Id. at ¶¶ 57-105).

         Defendant Florida Gulf Coast University Board of Trustees (“FGCU”) is a state university subdivision of the State of Florida. (Id. at ¶ 8). Defendant Ronald B. Toll is the Provost and Vice President for Academic Affairs at FGCU. (Id. at ¶ 9). Defendant Mitchell L. Cordova is the Dean of the College of Health Professions and Social Work at FGCU. (Id. at ¶ 10). Defendant Joan Glacken is the Associate Dean of Health Sciences in the College of Health Professions and Social Work at FGCU. (Id. at ¶ 11). Defendant Eric Shamus is Chair of the Department of Rehabilitation Sciences, which administers the FGCU-DPT program. (Id. at ¶ 12). Defendant Arie Van Duijn is the Program Director of the Doctor of Physical Therapy Program. (Id. at ¶ 13). Plaintiff alleges that each of the individual defendants played a role in his dismissal from the FGCU-DPT program. (Id. at ¶¶ 9-13). Plaintiff sues each of the individual defendants in their official capacities. (Id.). With the exception of Defendant Toll, Plaintiff also sues the remaining individual defendants in their individual capacities. (Id.).

         2. The Facebook Post at Issue

         While enrolled in the FGCU-DPT program, Plaintiff associated online with friends who were also enrolled in the program. (Id. at ¶ 18). Specifically, Plaintiff participated in a private, closed Facebook group page called “DPT-2017.” (Id.). The DPT-2017 group page was not administered by or under the direction of faculty or staff of the FGCU-DPT program. (Id. at ¶ 19). The page was not associated with any website administered by FGCU or the official Facebook page[2] of the FGCU College of Health Professions and Social Work. (Id. at ¶ 20).

         In addition to being a student, Plaintiff is also “an amateur comedian and performs comedy acts from time to time at bars and comedy clubs, the content of which is vulgar at times.” (Id. at ¶ 7). Previous to February 18, 2015, Plaintiff posted a hyperlink to a “joke” on the DPT-2017 private page and warned others of the nature of the content of the joke. (Id. at ¶ 24). The joke was not visible unless a Facebook user clicked the hyperlink to open a new page. (Id. at ¶ 85). Plaintiff alleges that he was trying to refine the joke for an upcoming comedy routine. (Id. at ¶ 24). He warned that students who would not come to see him perform an adult comedy routine at a bar should not open the joke. (Id.). Plaintiff attached the text of the joke as Exhibit G to the Amended Complaint. (Id.; see also Doc. 36-7).

         Students are not required to obtain permission or approval from FGCU-DPT faculty before associating with others or creating private pages on Facebook. (Doc. 36 at ¶ 22). Plaintiff alleges that other students posted jokes of a sexual nature on the DPT-2017 page. (Id. at ¶ 25). Plaintiff also alleges that “[m]essages, exchanges, postings, and interactions on the DPT-2017 page are and were the property of the Facebook users as individuals.” (Id. at ¶ 23).

         3. Plaintiff's Dismissal from the FGCU-DPT Program

         After the hyperlink to the joke was posted, an unnamed student submitted a complaint to the FGCU Office of Student Conduct regarding the content of the joke. (Id. at ¶ 26). On or about February 18, 2015, Defendants Van Duijn and Shamus, along with Dr. Stephen Black “interrupted” Plaintiff while he was participating in an FGCU lab class. (Id. at ¶ 30). Immediately after that interruption, Van Duijn, Shamus, and Black held an impromptu meeting in which Plaintiff was questioned primarily by Van Duijn. (Id. at ¶ 32). Plaintiff was not represented in the meeting, nor was he permitted to meet with his faculty advisor for advice or counsel before the meeting. (Id.). Plaintiff was also not permitted to defend himself or to explain the context or circumstances surrounding the joke. (Id. at ¶ 33).

         Plaintiff alleges that during the meeting, Van Duijn “recklessly asserted that [Plaintiff] had committed an unprofessional act by posting to the official Facebook page of the FGCU-DPT program.” (Id. at ¶ 34). In the same meeting, Plaintiff was told that this unprofessional behavior constituted his third Professional Behaviors violation. (Id. at ¶ 35). Van Duijn promised Plaintiff that a vote of the Faculty Council would be held on Tuesday, February 24, 2015 to determine whether Plaintiff would be able to continue as a student in the FGCU-DPT program. (Id. at ¶ 36). Before the meeting ended, Van Duijn prohibited Plaintiff from returning to campus and speaking with his classmates. (Id. at ¶ 37).

         In a signed letter dated February 20, 2015, Van Duijn advised Plaintiff that he was dismissed from the FGCU-DPT program “effective immediately” because “the Physical Therapy Faculty Council had placed Plaintiff on ‘Professional Behavior Probation' as a result of ‘a specific social media posting to fellow students in a Facebook group named DPT-2017, ' which placement constituted Plaintiff's ‘3rd time' being placed on probation.” (Id. at ¶ 38). The February 20, 2015 letter is attached as Exhibit A to the Amended Complaint. (See Doc. 36 at ¶ 38; see also Doc. 36-1).

         On February 23, 2015, the FGCU-DPT held a special, unscheduled training on sexual discrimination under Title IX in order to address a recent incident of sexual harassment by a student in the program. (Doc. 36 at ¶ 39). Plaintiff was not present for this meeting because Van Duijn prohibited Plaintiff from returning to the FGCU campus and speaking with his classmates. (Id. at ¶ 39). Although Plaintiff was not specifically named in the training, Plaintiff alleges that his classmates reasonably believed that the training was directly connected to Plaintiff's dismissal from the program. (Id. at ¶ 40).

         4. Plaintiff's Appeal of the Dismissal

         Plaintiff sent a letter dated March 4, 2015, to Helen Marmachev in the Office of the Ombuds at FGCU. (Id. at ¶ 41). In that letter, Plaintiff detailed the circumstances and context of his dismissal from the FGCU-DPT program, outlined all of Plaintiff's communications with FGCU faculty and personnel, and requested help from the Ombuds. (Id.).

         In a letter dated April 9, 2015, Dean Glacken informed Plaintiff that the decision to dismiss him complied with university policy and procedure, and asserted that Plaintiff had been given “due process.” (Id. at ¶ 42). This letter is attached to the Amended Complaint as Exhibit B. (Id.; see also Doc. 36-2).

         Plaintiff alleges that he appealed his dismissal “at every level permitted and according to established practices and procedures but his appeal was not entertained.” (Doc. 36 at ¶ 43). Thereafter, Plaintiff retained legal counsel and filed this suit. (See Id. at ¶ 44).

         5. Plaintiff's Claims

         Plaintiff asserts three counts in his Amended Complaint. (Id. ...

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