United States District Court, M.D. Florida, Fort Myers Division
CODY K. CHILDERS, Plaintiff,
FLORIDA GULF COAST UNIVERSITY BOARD OF TRUSTEES, RONALD B. TOLL, MITCHELL L. CORDOVA, JOAN GLACKEN, ERIC SHAMUS and ARIE VAN DUIJN, Defendants.
OPINION AND ORDER
MCCOY UNITED STATES MAGISTRATE JUDGE.
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
reasons set forth in this Opinion and Order, Defendants'
Motion (Doc. 42) is GRANTED IN PART and DENIED IN PART.
APPLICABLE LEGAL STANDARDS
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,
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,
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).
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).
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).
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
Amended Complaint and Exhibits Attached Thereto
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).
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 ¶¶
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.).
Facebook Post at Issue
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
of the FGCU College of Health Professions and Social Work.
(Id. at ¶ 20).
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).
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
Plaintiff's Dismissal from the FGCU-DPT Program
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).
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).
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).
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).
Plaintiff's Appeal of the Dismissal
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.
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).
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).
asserts three counts in his Amended Complaint. (Id.