Costello v. University of N. Car. at Greensboro

• Decision Date: 29 June 2005
• Docket Number: No. 1:03CV1050.,1:03CV1050.
• Citation: 394 F.Supp.2d 752
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Shawn COSTELLO, Plaintiff, v. The UNIVERSITY OF NORTH CAROLINA AT GREENSBORO, The University of North Carolina, the Board of Governors of the University North Carolina, and Terrance Stewart, individually, Defendants.

Page 752

394 F.Supp.2d 752

Shawn COSTELLO, Plaintiff, v. The UNIVERSITY OF NORTH CAROLINA AT GREENSBORO, The University of North Carolina, the Board of Governors of the University North Carolina, and Terrance Stewart, individually, Defendants.

No. 1:03CV1050.

United States District Court, M.D. North Carolina.

June 29, 2005.

COPYRIGHT MATERIAL OMITTED

Andrew D. Atherton, A. Frank Johns, Booth Harrington & Johns, L.L.P., Greensboro, NC, for Plaintiff.

Joyce S. Rutledge, John P. Scherer, II, Dept. of Justice Office of the Attorney General, Raleigh, NC, for Defendants.

MEMORANDUM OPINION and ORDER

OSTEEN, District Judge.

Plaintiff Shawn Costello, a former student and member of the golf team at Defendant The University of North Carolina at Greensboro ("UNCG"), brings this federal question action against Defendants UNCG, The University of North Carolina, and The Board of Governors of the University of North Carolina (collectively, "Institutional Defendants"); and Defendant Terrance Stewart, the coach of the UNCG golf team, individually. Plaintiff's disability discrimination suit alleges claims under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution; Title III of the Americans with Disabilities Act of 1990 ("Title III" or "Title III of the ADA"), 42 U.S.C. §§ 12181 et seq.; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and Section 1 of the Civil Rights Act of 1871 (" § 1983"), 42 U.S.C. § 1983. This matter is now before the court on Defendants' motion to dismiss and Plaintiff's motions to amend his complaint and to continue the hearing of Defendants' motion to dismiss pending a decision by the United States Supreme Court. For the reasons set forth herein, Plaintiff's motions to continue and to amend will be DENIED and Defendants' motion to dismiss will be GRANTED in part and DENIED in part.

I. BACKGROUND

The following facts are presented in the light most favorable to Plaintiff.¹

Plaintiff Shawn Costello, a North Carolina resident, was a student at Defendant UNCG from August 2001 to May 2003. While enrolled at UNCG, Plaintiff played on the golf team as a scholarship player, under Defendant Coach Terrance Stewart.

In August 2002, the beginning of Plaintiff's sophomore year, Plaintiff was diagnosed with Obsessive-Compulsive Disorder ("OCD"). Plaintiff's father notified Stewart of Plaintiff's diagnosis and Plaintiff's need for a scheduling accommodation for a weekly appointment with a psychologist. Stewart responded that he would treat Plaintiff's OCD like a broken ankle and would "red shirt" him for the rest of the season. However, when Plaintiff told Stewart that Dr. Eric Hollander, a leading expert on OCD, had advised Plaintiff it would be best for him to continue to play golf and improve his game, Stewart retreated from his earlier position and allowed Plaintiff to play on the team.

Plaintiff's weekly appointments with Dr. Dennis McKnight, Plaintiff's treating psychologist, were set for Tuesdays and the schedule was approved by Stewart. Despite his prior approval, on or about October 11, 2002, Stewart refused to allow Plaintiff to make up a Tuesday qualifying round of golf missed because of his weekly appointment.

During the course of the 2002-2003 school year, Stewart made several statements to Plaintiff and others about Plaintiff's performance and OCD. In the fall of 2002, Stewart told Sam Clark, one of Plaintiff's teammates, "[B]etween me and you, I am worried about taking [Plaintiff] to tournaments because I am worried that [he] will take a turn like he had last week and then I would only have four players instead of five." (Compl.¶ 16.) Clark, in a meeting with Nelson Bobb, UNCG's athletic director, told Bobb that Stewart said to Plaintiff, "I do not give a damn about your OCD." (Id. ¶ 18.) Bobb's response was that Plaintiff was not a credible source and could not remember things because of his OCD. (Id. ¶ 19.) On February 12, 2003, Stewart told Plaintiff to transfer to another school because he was not Stewart's "kind of player" and was not going to get an opportunity to play at UNCG. (Id. at 20.)

In the spring of 2003, Dr. McKnight notified Plaintiff that Stewart had reported to the office of student affairs at UNCG that Plaintiff had made suicidal threats and homicidal threats toward his own parents. The statements attributed to Plaintiff were false and the falsity was confirmed by letter from Dr. McKnight to Stewart, Bobb, and Carol Disque, UNCG's vice chancellor for student affairs. Following this incident, Plaintiff met with Disque and Dr. John Edwards, director of UNCG's Counseling and Testing Center. Plaintiff informed Disque that Stewart used abusive and vulgar language, encouraged cheating that was covered up by the athletic department, and discriminated against Plaintiff because of his OCD.

Following Plaintiff's meeting with Disque and Edwards, Stewart's treatment of Plaintiff worsened. Stewart eventually dismissed Plaintiff from the golf team on the basis of missed practices, although the missed practices were for doctor appointments already approved. When Plaintiff was dismissed from the golf team, his scholarship was revoked and he was forced to transfer to another school to continue to play collegiate golf. Even with his transfer, Plaintiff lost one year of collegiate eligibility.

II. PROCEDURAL POSTURE

Plaintiff filed a four-count complaint alleging discrimination on the basis of disability. Within their answer, Defendants moved for complete dismissal of Plaintiff's claims. Before responding to Defendants' motion to dismiss, Plaintiff moved to amend his complaint.

The marrow of Plaintiff's proposed amendment was to remove his claim for violation of Title III of the ADA (discrimination in public accommodations) and replace it with a claim for violation of Title II of the Americans with Disabilities Act of 1990 ("Title II" or "Title II of the ADA") (discrimination in public services), 42 U.S.C. §§ 12131 et seq. When the motion to amend was made, the then-controlling authority of the Fourth Circuit Court of Appeals held Congress did not validly abrogate the states' Eleventh Amendment immunity to suit under Title II of the ADA for monetary damages. Wessel v. Glendening, 306 F.3d 203, 215 (4th Cir.2002). However, pending at that time was an appeal to the United States Supreme Court challenging a similar decision by the Sixth Circuit in Lane v. Tennessee, 315 F.3d 680 (6th Cir.2003). Presumably knowing of the rule in Wessel, Plaintiff Costello moved to continue the hearing of Defendants' motion to dismiss until the resolution of Lane.

Lane has now been decided, rendering Plaintiff's motion to continue moot. See Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004). Defendants' motion to dismiss and Plaintiff's motion to amend remain pending before the court. Because the court's decision on Plaintiff's motion to amend will undoubtedly effect Defendants' motion to dismiss, the court will address the amendment first. The court will then address whether dismissal is appropriate.

III. PLAINTIFF'S MOTION TO AMEND

A. Standard of Review

Amendments to a complaint after a responsive pleading has been served may only be made by leave of court or by written consent of the opposing party. Fed.R.Civ.P. 15(a). A party seeking amendment from the court need not file a supporting brief under the local rules, but "must state good cause" for the amendment. L.R. 7.3(j). Once a motion is filed, leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Under the rule's liberal construction, see Ward Elecs. Service, Inc. v. First Commercial Bank, 819 F.2d 496, 497 (4th Cir.1987), motions to amend should be granted absent extraordinary circumstances. Such circumstances include undue delay, bad faith or dilatory motive, a repeated failure to cure deficiencies, undue prejudice to the opposing party, and futility of amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). A motion to amend is futile, and thus should be denied, if the proposed amendment "is clearly insufficient because of substantive or procedural considerations." Goewey v. United States, 886 F.Supp. 1268, 1284 (D.S.C.1995); see Frank M. McDermott, Ltd. v. Moretz, 898 F.2d 418, 421 (4th Cir.1990) ("There is no error in disallowing an amendment when the claim sought to be pleaded by amendment plainly would be subject to a motion to dismiss.").

B. Analysis

As an initial matter, the court notes Plaintiff's motion does not comply with local rules because Plaintiff offers no good cause for amendment, merely a statement of the proposed amendment itself. See L.R. 7.3(j). Regardless of this deficiency, justice would not be served by granting Plaintiff's motion to amend because it is futile.

It is well settled that the Eleventh Amendment bars a suit by private parties to recover money damages from the state or its alter egos acting in their official capacities. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355, 39 L.Ed.2d 662 (1974). Because the institutional Defendants are alter egos of the State of North Carolina, they enjoy the state's Eleventh Amendment immunity. See Huang v. Board of Governors of Univ. of N.C., 902 F.2d 1134, 1139 (4th Cir.1990) (finding that the Eleventh Amendment bars suit against the Board of Governors of UNC); Bartges v. University of N.C. at Charlotte, 908 F.Supp. 1312, 1332-33 (W.D.N.C.1995) (finding UNC at Charlotte to be immune under the Eleventh Amendment). Thus, the Eleventh Amendment bars Plaintiff's claim for violation of Title II of the ADA unless Congress clearly and validly abrogated the state's immunity.

In Wessel v. Glendening, a disabled state prisoner alleged that Maryland denied him the ability to earn good conduct credits through institutional work and a boot camp program. 306 F.3d 203, 206 (4th Cir.2002). The Fourth Circuit Court of Appeals,...