669 F.3d 1295 (11th Cir. 2012), 10-14622, Barnes v. Zaccari

Docket Nº:10-14622.
Citation:669 F.3d 1295
Opinion Judge:COX, Circuit Judge:
Party Name:Thomas Hayden BARNES, Plaintiff-Appellee, v. Ronald M. ZACCARI, individually and in his official capacity as President of Valdosta State University, Board of Regents of the University System of Georgia, Defendants-Appellants.
Attorney:Robert Corn-Revere, Christopher A. Fedeli, Erin Nedenia Reid, Lisa Beth Zycherman, Davis Wright Tremaine, LLP, Washington, DC, Travis C. Barham, Alliance Defense Fund, Lawrenceville, GA, Cary Stephen Wiggins, Cook, Youngelson & Wiggins, Atlanta, GA, for Plaintiff-Appellee. David C. Will, Holly Ha...
Judge Panel:Before DUBINA, Chief Judge, COX, Circuit Judge, and GOLDBERG, [*] Judge.
Case Date:February 07, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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669 F.3d 1295 (11th Cir. 2012)

Thomas Hayden BARNES, Plaintiff-Appellee,

v.

Ronald M. ZACCARI, individually and in his official capacity as President of Valdosta State University, Board of Regents of the University System of Georgia, Defendants-Appellants.

No. 10-14622.

United States Court of Appeals, Eleventh Circuit.

February 7, 2012

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[Copyrighted Material Omitted]

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Robert Corn-Revere, Christopher A. Fedeli, Erin Nedenia Reid, Lisa Beth Zycherman, Davis Wright Tremaine, LLP, Washington, DC, Travis C. Barham, Alliance Defense Fund, Lawrenceville, GA, Cary Stephen Wiggins, Cook, Youngelson & Wiggins, Atlanta, GA, for Plaintiff-Appellee.

David C. Will, Holly Hance, Royal Washburn Will, Lawrenceville, GA, for Defendants-Appellants.

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Appeal from the United States District Court for the Northern District of Georgia.

Before DUBINA, Chief Judge, COX, Circuit Judge, and GOLDBERG, [*] Judge.

COX, Circuit Judge:

In 2007, in the wake of the massacre at Virginia Tech, Ronald Zaccari, the President of Valdosta State University at the time, " administratively withdrew" (expelled) Thomas Hayden Barnes, a student, on the ground that Barnes presented a " clear and present danger" to the campus. Barnes sued Zaccari in federal court, claiming that under the Due Process Clause he was due notice of the charges, and a hearing to answer them, prior to his removal from campus. The district court agreed with Barnes, and denied Zaccari summary judgment based on qualified immunity. We affirm.

In his suit, Barnes joined the Board of Regents of the University System of Georgia as a defendant. His claim against the Board is a state-law breach of contract claim for damages. This claim asserts that the student handbook and contracts for student housing establish binding agreements between the Board and university students, and that the Board breached these agreements by failing to afford him the process due prior to his removal from campus. The Board sought summary judgment grounded on Eleventh Amendment immunity. The district court denied the Board summary judgment, concluding that by statute Georgia has waived its immunity from suit in federal court for breach of contract. The Board appeals. We reverse.

I. FACTS

The district court denied Zaccari's motion for summary judgment based on qualified immunity and the Board's motion for summary judgment based on Eleventh Amendment immunity. On this interlocutory appeal from that order, we view the facts in the light most favorable to the non-moving party. Jackson v. Sauls, 206 F.3d 1156, 1164 (11th Cir.2000) (citation omitted). Thus, we state the facts in the light most favorable to Barnes.

A. BACKGROUND

In 2005, Barnes enrolled in Valdosta State University (" VSU" ), a public institution in the University System of Georgia. He subsequently left VSU to attend a different school, but re-enrolled in January 2007. Barnes suffered from anxiety and agoraphobia at the time. During his first term at VSU, Barnes began meeting with a therapist at the VSU counseling center, Leah McMillan. He resumed sessions with McMillan upon returning to VSU in 2007. During the time period relevant to this appeal, Barnes was on academic probation. But he was making sufficient academic progress to remain a student at VSU.

The Board is an arm of the State of Georgia. Under the Georgia constitution, it has authority to oversee and administer the University System of Georgia. Zaccari was the president of VSU at the time in question. During his tenure, Zaccari had developed a master plan for the campus, which included constructing a new parking deck. In March 2007, the VSU student newspaper ran a story detailing the plan to build the parking deck.

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When Barnes learned about the plans for the parking deck, he became concerned about its environmental impact and decided to oppose it. He posted a series of flyers around campus, emailed VSU officials and students about his concerns, and posted information about the project to his Facebook webpage. Zaccari saw one of Barnes's flyers and was displeased. Through a student environmental group, Zaccari identified Barnes as the source of the flyers. Because the student group expressed concerns about Zaccari's displeasure, Barnes wrote Zaccari an apology saying that he did not want his " actions to be perceived as a personal ‘ attack’ or to jeopardize other environmental initiatives on campus." (Dkt. 179-9 at 42.)

But Barnes continued to voice his concerns. He wrote a letter to the editor of the student newspaper expressing his views. In that letter, he criticized the decision to build the parking deck as short-sighted as well as a waste of university real estate and $30 million. Barnes also learned that the Board would meet to consider approval of the parking deck on April 17. He contacted several Board members directly to voice his concerns. Barnes's messages were respectful.

When Zaccari learned that Barnes had contacted members of the Board directly, he summoned him to his office on April 16. During that meeting, Zaccari explained the reasons for building the parking deck and expressed frustration with Barnes's continued opposition. (Dkt. 190 at 114-19.) This litigation arises out of the events which unfolded following that meeting.

B. BARNES'S ALLEGEDLY THREATENING BEHAVIOR

The particular details of Barnes's behavior are largely undisputed. But the parties dispute the inferences that can be drawn from his behavior. Thus, we characterize this behavior in the light most favorable to Barnes.

On April 16, the same day Barnes met with Zaccari, a student at Virginia Tech shot and killed thirty people. The shooting alarmed Zaccari and other officials in the University System of Georgia. Zaccari says this tragedy put him in a heightened state of alert.

Shortly after their meeting, Barnes sent Zaccari three emails. One explained Barnes's rationale for posting his flyers about the parking deck as well as his political philosophy. Another listed other universities which employ shuttle systems. The third email included a reference to cutting down the last tree on Easter Island. It characterized the inhabitant's decision to cut down that tree as making economic sense under their business plan. These emails show Barnes was passionate about environmental issues. He also admitted a willingness to resort to confrontation politics.1 But the emails contain no overt threats and do not suggest that Barnes wanted to harm anyone.

A few days later, a letter from Barnes appeared in the in-box of one of Zaccari's staff members. It is unclear how the letter arrived. Zaccari contends the letter's arrival compromised the security of his office. (Dkt. 177-2 at 18.) In the letter, Barnes requested an exemption from the $100 fee earmarked for the parking deck's construction and offered to donate that sum to a campus environmental program. Like Barnes's emails, the letter is not threatening. Barnes had no further contact with Zaccari.

Unbeknownst to Barnes, Zaccari was monitoring his Facebook webpage. A few days before Barnes met with Zaccari, he

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posted a satirical collage to that webpage. The collage's title read " S.A.V.E.— Zaccari Memorial Parking Garage" and included a portrait of the president.2 Zaccari did not learn about this collage until after his meeting with Barnes. A few days after their meeting, Barnes posted several more items. These included some unrelated material, a status update saying, " Hayden Barnes is cleaning out and rearranging his room and thus, his mind, so he hopes," and a link to an article on salon.com titled " I'm mentally ill but I'm no mass murderer." (Dkt. 244 at 9-10.) The author of that article offered a reader advice about dealing with the stigma of mental illness in the wake of the tragedy at Virginia Tech. 3 Zaccari learned of these items on April 23.

C. ZACCARI'S RESPONSE TO BARNES'S BEHAVIOR

Immediately after their April 16 meeting, Zaccari began looking for a way to remove Barnes from campus. He reviewed Barnes's academic work as a possible basis for removing him from campus. Zaccari's efforts intensified on April 20. The day before, Barnes's letter to the editor had appeared in the student newspaper, and at some point after that, Zaccari learned of Barnes's Facebook collage. Over the next two weeks, Zaccari convened no less than five meetings about Barnes. At these meetings, Zaccari characterized Barnes's behavior as threatening.4 No one on his staff agreed with his assessment. Two mental health professionals, McMillan and the Director of the VSU counseling center, Dr. Victor Morgan, repeatedly told Zaccari that Barnes was not a threat to himself or others.5 Other university officials agreed among themselves that Zaccari was overreacting.

During this time, Zaccari told a VSU police officer, Ann Farmer, that someone had tripped the alarm system at his house the weekend of April 13 and that he had received prank calls asking for " the business officer." Zaccari believed Barnes was responsible. Farmer suggested that Zaccari file a formal police report and get a restraining order against Barnes. He declined. After their conversation, Farmer investigated Barnes and determined he was not a threat. Barnes denies tripping the alarm and making the prank calls.

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Zaccari explored several other avenues to remove Barnes from campus. These included a mental health withdrawal and a disorderly conduct charge. VSU's mental health withdrawal policy requires a mental health professional to recommend that the student be withdrawn because he or she represents a danger to himself or others. This policy guarantees the student an informal hearing...

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