Barnes v. Zaccari, 13-13800

• Decision Date: 12 January 2015
• Docket Number: No. 13-13800,13-13800
• Parties: THOMAS HAYDEN BARNES, Plaintiff - Appellant, v. RONALD M. ZACCARI, individually and in his official capacity as President of Valdosta State University, VALDOSTA STATE UNIVERSITY, BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, LAVERNE GASKINS, individually and in her official capacity as in-house counsel at Valdosta State University, KURT KEPPLER, individually and in his official capacity as Vice President for Student Affairs at Valdosta State University, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

THOMAS HAYDEN BARNES, Plaintiff - Appellant, v. RONALD M. ZACCARI, individually and in his official capacity as President of Valdosta State University,VALDOSTA STATE UNIVERSITY, BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA,LAVERNE GASKINS, individually and in her official capacity asin-house counsel at Valdosta State University, KURT KEPPLER, individually and in his officialcapacity as Vice President for Student Affairs at Valdosta State University, et al., Defendants- Appellees.

No. 13-13800

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

January 12, 2015

[DO NOT PUBLISH]

D.C. Docket No. 7:12-cv-00089-HL

Appeal from the United States District Court for the Middle District of GeorgiaBefore JORDAN and BENAVIDES,^* Circuit Judges, and BARTLE,^** District Judge.

PER CURIAM:

I. BACKGROUND

This action was brought by Plaintiff-Appellant Thomas Hayden Barnes ("Barnes") against Valdosta State University ("VSU") and various VSU officials and employees, alleging constitutional and statutory violations and breach of contract. During the relevant time period in 2007, Barnes was a student at VSU.

Barnes had previously been enrolled at VSU in the fall of 2005 as a transfer student, but he subsequently left while on academic probation to attend paramedic school in Savannah, Georgia in 2006. In January 2007, Barnes re-enrolled at VSU and contacted the VSU Access Office, which provides services to students with disabilities, to register as an on-campus disabled student suffering from a panic disorder with agoraphobia. Dr. Kimberly Tanner, Director of the VSU Access Office, assisted Barnes in submitting the proper documentation of his disability and to assist him in securing housing accommodations that VSU had available for Barnes. After re-enrolling at VSU, Barnes resumed therapy sessions with Leah McMillan ("McMillan"), a licensed therapist at VSU's counseling center.

VSU had experienced a growth in student population, and VSU had a long-term development plan to accommodate that growth. Part of that plan included the construction of a parking garage. In March of 2007, Barnes became concerned about the potential environmental impact of the parking garage and put up flyers protesting the construction. After Defendant-Appellee Dr. Ronald Zaccari ("Zaccari"), the President of VSU, became aware of the flyers, he asked his assistant to find out who was responsible for them. She informed him that Barnes had made the flyers.

On March 26, Zaccari had an unrelated meeting with an environmental campus organization named "S.A.V.E." During that meeting, he inquired whether the members knew Barnes. They told him that Barnes had been part of their organization but had decided to "go off on his own." After the meeting, one of the members apparently informed Barnes that Zaccari had made a comment about the flyers. Barnes then wrote a letter of apology and took down the flyers. Zaccari believed that this meant Barnes was no longer protesting the construction of the parking garage.

However, Barnes had been contacting the individual members of the VSU Board of Regents by telephone and email in anticipation of the Board's upcoming meeting on April 17, 2007, to voice his opposition to the parking garage. Zaccari learned of these communications when Linda Daniels ("Daniels"), a ViceChancellor, contacted Zaccari and informed him that she was concerned that Barnes might disrupt the Board meeting. Daniels asked campus police at Georgia Southern University, where the meeting was to be held, to provide additional security as a precaution.

On April 16, Zaccari learned of the fatal shootings that had taken place on Virginia Tech's campus. These fatal shootings caused Zaccari to have a heightened concern regarding campus safety at VSU. That same day, Barnes called Zaccari to request a meeting, and Zaccari met with Barnes at 5pm. Russ Mast ("Mast"), Dean of Students, was also present at this meeting. They discussed Barnes's opposition to the parking garage. Zaccari explained how VSU had approved the construction and funding of the parking garage. Zaccari felt that Barnes was unresponsive despite what he believed were attempts to have a productive discussion. Zaccari admitted that he was "stern" with Barnes. Zaccari told Barnes that he was "personally offended" by Barnes's activities and "didn't know what to do with [Barnes]." Zaccari "was upset that Hayden had [gone] to the members of the Board of Regents and [said] that he was embarrassed that [Barnes] did not come and talk to him about that." Ultimately, Barnes assured them that he did not plan to attend or protest at the board meeting.

After meeting with Barnes, Zaccari learned that Barnes had been writing about the parking garage on his Facebook page. Zaccari was subsequently given acopy of what Barnes had posted on Facebook, a collage titled "S.A.V.E. - Zaccari Memorial Parking Garage," which included a picture of Zaccari. Zaccari told his staff that he felt threatened by the posting.

On April 19, VSU's newspaper published Barnes's letter to the editor criticizing the construction of the parking garage. On April 20, Zaccari met with Mast, Campus Police Major Ann Farmer ("Major Farmer"), Dr. Kurt Keppler ("Keppler"), Vice President of Student Affairs, and Tanner, to discuss Zaccari's concerns and to begin an investigation of Barnes. Zaccari informed the group that Barnes had distributed flyers on the campus protesting the parking garage and made phone calls to individual members of the Board of Regents. He showed the group the collage that Barnes had posted on his Facebook page. He also told the group that an intruder had tripped the alarm at his residence and that he had been receiving calls from a male individual asking for the "business office" and then hanging up the phone. No evidence ever connected Barnes to the alarm or the phone calls.

Tanner told the group that Barnes was registered with the Access Office and revealed some of his medical background, including that Barnes had a thought depressive disorder, agoraphobia, and panic disorder. She also said that Barnes was now on medication but had previously been hospitalized due to an inability tofunction. Additionally, Tanner stated that Barnes had been admitted to VSU on academic probation.

Major Farmer took contemporaneous meeting notes that indicated that Mast suggested that the Facebook collage could be viewed as a veiled threat and used as a basis for a disorderly conduct withdrawal. It is not apparent to us that this collage on its face directly or indirectly expresses a threat or suggests that harm would come to Zaccari or anyone else. The notes also provided that Zaccari pointed out that board member Daniels had been so concerned about Barnes's phone calls that she had alerted the campus police department at Georgia Southern University prior to the board meeting.

At one point during the meeting, Major Farmer advised Zaccari to apply for a restraining order against Barnes if he felt threatened. However, Zaccari never applied for a restraining order. After this meeting, Farmer investigated Barnes and determined that there was no credible threat.

On April 23, Barnes sent Zaccari a letter requesting that he be exempted from the $100 mandatory student fee that he believed was earmarked for the parking garage. Barnes also wrote that he would contribute $100 to an "environmental-related program on campus to compensate for the loss to the University's revenue."

On April 24, Zaccari asked McMillan, Barnes's therapist, to obtain background information on Barnes and to provide her assessment of Barnes, and the two met to discuss Barnes. McMillan told Zaccari that Barnes was having difficulty with his classes and that his grades might not make the probationary level to allow him to remain at VSU. In addition, Barnes had lost his employment and his medication was not working properly. She also told Zaccari that Barnes had not seen his psychiatrist for some period of time.

During this same week, Zaccari called another meeting with Farmer, Mast, and Keppler. Zaccari told the group that Barnes had sent a letter requesting to be exempt from the $100 fee. Additionally, Zaccari reported that Barnes placed a link on his Facebook page to an article that discussed the mentally ill shooter from Virginia Tech. Zaccari informed the group that he had spoken to Barnes's previous employer at the South Georgia Medical Center, where he had worked as an emergency medical technician. He had been put on probation and then terminated. Per Zaccari's request at the meeting, Farmer arranged for two plain-clothes security officers to guard Zaccari at certain functions.

On May 1, Zaccari had a discussion with Laverne Gaskins ("Gaskins"), in-house counsel for VSU, and Betsy Neely, Vice Chancellor for Legal Affairs for the Board of Regents, regarding VSU's medical withdrawal policy. Under this policy, if there was an emergency situation, the student would not receive a hearing.Zaccari asked about administratively withdrawing Barnes, and Neely told him to do what he had to do to keep the campus safe and that they would worry about a lawsuit at a later date.¹

On May 3, Zaccari met with Gaskins; Farmer; Keppler; Mast; Tanner; and Victor Morgan ("Morgan"), Director of VSU's Counseling Center. Zaccari said that if they were to proceed with a disorderly conduct withdrawal, they would have to convene a student-faculty review. Gaskins expressed concerns that Barnes was entitled to have a hearing. Zaccari then stated that if they implemented an administrative withdrawal, they needed to show a threat to Barnes himself or the community. Zaccari mentioned that they "must be concerned with First Amendment rights, but first we have to look at the safety issue. Ultimately, we have to have documentation to support that [Barnes] is a danger and a threat." He then asked the group, "How do we present to a third party that a threat exists?" Zaccari then stated that Barnes's putting up...