Jemaneh v. Univ. of Wyo.

• Decision Date: 11 March 2015
• Docket Number: Civil Action No. 12–cv–02383–RM–MJW
• Citation: 82 F.Supp.3d 1281
• Parties: Tewodros G. Jemaneh, Plaintiff, v. The University of Wyoming, The University of Wyoming College of Health Sciences, the University of Wyoming School of Pharmacy, Tom Buchanan, in his official and individual capacity, Nell Russell, in her official and individual capacity, Joseph F. Steiner, in his official and individual capacity, David L. Jones, in his official and individual capacity, John H. Vandel, in his official and individual capacity, Beverly A. Sullivan, in her official and individual capacity, Jaime R. Hornecker, Janelle L. Krueger, in her official and individual capacity, Cara A. Harshberger, in her official and individual capacity, Amy L. Stump, in her official and individual capacity, Agatha Christie Nelson, in her official and individual capacity, Kathleen A. Thompson, in her official and individual capacity, and Maria A. Bennet, in her official and individual capacity, Defendants.
• Court: U.S. District Court — District of Colorado

82 F.Supp.3d 1281

Tewodros G. Jemaneh, Plaintiff

v.The University of Wyoming, The University of Wyoming College of Health Sciences, the University of Wyoming School of Pharmacy, Tom Buchanan, in his official and individual capacity, Nell Russell, in her official and individual capacity, Joseph F. Steiner, in his official and individual capacity, David L. Jones, in his official and individual capacity, John H. Vandel, in his official and individual capacity, Beverly A. Sullivan, in her official and individual capacity, Jaime R. Hornecker, Janelle L. Krueger, in her official and individual capacity, Cara A. Harshberger, in her official and individual capacity, Amy L. Stump, in her official and individual capacity, Agatha Christie Nelson, in her official and individual capacity, Kathleen A. Thompson, in her official and individual capacity, and Maria A. Bennet, in her official and individual capacity, Defendants.

Civil Action No. 12–cv–02383–RM–MJW

United States District Court, D. Colorado.

Signed March 11, 2015

Tewodros G. Jemaneh, pro se.

Melinda Sue McCorkle, Stephen H. Kline, Kline Law Office, Cheyenne, WY, for Defendant.

ORDER ON DEFENDANTS' MOTION TO DISMISS (ECF NO. 91)

RAYMOND P. MOORE, United States District Judge

Plaintiff Tewodros G. Jemaneh, an Ethiopian–American, filed this action alleging he was wrongfully terminated from the pharmacy program at the University of Wyoming in violation of various federal and state laws. By Order dated May 30, 2013, some of Plaintiff's claims were dismissed. (ECF Nos. 71 & 83.) This matter is now before the Court on Defendants' Motion to Dismiss all Remaining Claims (“Motion”) (ECF No. 91), filed pursuant to Fed. R. Civ. P. 12(b)(1), (b)(2), and 12(b)(6), seeking dismissal based on failure to state a claim, qualified immunity, Eleventh Amendment immunity, and the Wyoming Governmental Claims Act (“WGCA”). Upon consideration of Defendants' Motion, Plaintiff's Response (ECF No. 128–1), Defendants' Reply, all relevant parts of the Court's file, and the applicable statutes, rules, and case law, the Court GRANTS the Motion, but grants Plaintiff leave to refile certain claims as against Defendant Kathleen A. Thompson only.

I. PROCEDURAL BACKGROUND

On September 7, 2012, Plaintiff filed this action asserting 14 claims for relief. In the Complaint, Claims 1 through 9 allege various violations of 42 U.S.C. § 1983. Claims 10 and 11 allege violations of 42 U.S.C. § 1985(3). Claim 12 alleges a violation of 42 U.S.C. § 1986. Claim 13 alleges intentional infliction of emotional distress, and Claim 14 alleges negligent infliction of emotional distress. (ECF No. 1.)

On February 8, 2013, Defendants filed a motion to dismiss. (ECF No. 49.) In this first motion, Defendants argued that: (1) Plaintiff's § 1983 and § 1985 claims (Claims 1–11) should be dismissed against the University defendants and individual defendants in their official capacities based on Eleventh Amendment immunity; and (2) Plaintiff's § 1986 claim (Claim 12) should be dismissed as time-barred. The first motion to dismiss was referred to the Magistrate Judge for a report and recommendation.

In response to the first motion, Plaintiff asserted that he mislabeled the Fourth and Fifth Claims as § 1983 claims when they are 42 U.S.C. § 2000d claims, and the Seventh and Eighth Claims as § 1983 claims when they are § 1981 claims. (ECF No. 61.) In his recommendation on the first motion to dismiss, the Magistrate Judge accepted Plaintiff's categorization of the four claims. As categorized, the Magistrate Judge recommended the claims brought under §§ 1983 and 1985 be dismissed based on Eleventh Amendment immunity as against the University entities and the individual defendants in their official capacities. The Magistrate Judge also recommended the § 1986 claim be dismissed as time-barred. (ECF No. 71.) No party filed an objection to the recommendation. Thereafter, the Court accepted and adopted the recommendation, dismissing Claims 1, 2, 3, 6, 9, 10, and 11 against the University defendants and individual defendants in their official capacities; and Claim 12 against all defendants. (ECF No. 83.)

The Motion currently before the Court is filed pursuant to Fed. R. Civ.P. 12(b)(1) (lack of subject matter jurisdiction), (b)(2) (lack of personal jurisdiction), and (b)(6) (failure to state a claim), seeking a dismissal of all remaining claims.¹ As the Motion does not address personal jurisdiction, that issue will not be considered.

The Motion was filed over the Plaintiff's objections that a “second” Rule 12(b)(6) motion to dismiss may not be filed under the Federal Rules of Civil Procedure. Those objections and arguments have been addressed and rejected. Plaintiff continues to object but, as before, the Court finds the objection without merit. See Albers v. Bd. of Cnty. Comm'rs of Jeff. Cnty., 771 F.3d 697, 703 (10th Cir.2014) (Recognizing “Rule 12(h)(2) allows parties to bring the defense of failure to state a claim in post-answer motions or at trial, and Rule 12(h)(1) expressly exempts Rule 12(b)(6) motions from its waiver rule.”) Although Defendants' Motion should have been filed pursuant to Rule 12(c) rather than Rule 12(b)(6), the standards for reviewing a Rule 12(c) and 12(b)(6) motion are the same and the misnomer does not affect Plaintiff's substantive rights. See Ramirez v. Dep't of Corr., 222 F.3d 1238, 1240 (10th Cir.2000) ; Albers, 771 F.3d at 703–04. Accordingly, the Defendants' Motion is properly before this Court for consideration.

Plaintiff's Response also argues Defendants' current Eleventh Amendment immunity argument as to the § 1981 claims (Seventh and Eighth Claims) is time barred because it was not brought in the first motion to dismiss. Plaintiff's argument, however, fails for a number of reasons. First, as shown by the procedural history, the Eleventh Amendment argument as to the § 1981 claims could not have been raised in the first motion to dismiss as it was not until the Magistrate Judge issued its Order that Plaintiff's Seventh and Eighth Claims, stated as § 1983 claims in the Complaint, were categorized as § 1981 claims. Next, as discussed above, Defendants may assert a Rule 12(b)(6) defense under Rule 12(c). Finally, an analysis of Eleventh Amendment immunity is considered under Rule 12(b)(1), not Rule 12(b)(6). See Elephant Butte Irrig. Dist. of N.M. v. Dep't of Interior, 160 F.3d 602, 607 (10th Cir.1998) (“We review de novo a district court's consideration of subject matter jurisdiction in the context of a Fed. R. Civ. P. 12(b)(1) motion to dismiss based on Eleventh Amendment immunity.”); Webb v. Jones, No. 12–6250, 525 Fed.Appx. 773, 775, 2013 WL 2168143, at *1 (10th Cir. May 21, 2013) (same) (unpublished). As such, Defendants are not precluded from raising the defense in their Motion.

II. OVERVIEW OF ALLEGATIONS²

Plaintiff alleges that the persons with whom he came into contact academically during his last year at the pharmacy program at the University of Wyoming engaged in discriminatory or other unlawful conduct. The persons at issue are three entities and 13 individuals. Those entities are defendants the University of Wyoming (“UOW”), the University of Wyoming College of Health Sciences (“UWCHS”), and the University of Wyoming School of Pharmacy (“UWSOP”) (collectively, the “University”). The individuals are nine “Supervisory Defendants,” i.e., Defendants Buchanan, Russell, Steiner, Jones, Vandel, Sullivan, Krueger, Harshberger, and Bennett (Complaint, p. 8), and four instructors (Defendants Hornecker, Stump, Nelson and Thompson) (collectively, “Individual Defendants”) (the University and Individual Defendants will collectively be referred to herein as “Defendants”). During the relevant time period, except for Defendant Thompson, the Individual Defendants worked for UOW or UWSOP in Wyoming. Defendant Thompson is a Caucasian female who worked for the UWSOP as a Clinical Assistant Professor of Pharmacy Practice at the Swedish Family Medicine Residency Program in Colorado. (Complaint, pp. 7, 39.)

Plaintiff was one of 49 pharmacy students at the UWSOP program. Plaintiff is an Ethiopian–American, three of the other students are Caucasians, but the 45 other students' races or national origins are unknown. (Complaint, e.g., pp. 37–39, 49, 67.) Defendant Thompson taught the Internal Medicine I rotation course at Swedish from May 7, 2010³ to April 1, 2011. (Complaint, p. 7.) She was apparently the preceptor for three interns, Plaintiff and two Caucasians. (Complaint, e.g., pp. 37–39, 49, 67.)

Plaintiff alleges he was subjected to two “discriminatory terminations.” The first termination allegedly occurred in the spring of 2010, while the second allegedly occurred in April 2011. (Complaint, pp. 10, 33, 34, 50, 69.)

Plaintiff asserts his first “discriminative termination” was caused by instructors Stump, Hornbecker, and Nelson,⁴ and the Dean of UWSOP, Vandel. (Complaint, pp. 5, 10–12.) According to Plaintiff, in the spring of 2010, he took the Pharmacokinetics course in which three examinations were given. Plaintiff received a 91% on his first examination, but his instructors, Defendants Stump, Hornbecker, and Nelson, denied Plaintiff credit for his correct works in the second and third examinations, resulting in a failing grade for the course. (Complaint, pp. 1011.) Dean Vandel thereafter notified Plaintiff that he was terminated from the pharmacy program. (Complaint, p. 11.)

Plaintiff, however, complained to Defendant Steiner, Dean of UWCHS. (Complaint, pp. 5, 11.) He also complained to Dean Vandel and threated to sue unless he was given additional credit and his termination withdrawn. Thereafter, Plaintiff was advised that his grade had been changed from a “D” to “C,” a passing grade, and Dean Vandel withdrew Plaintiff's termination from the pharmacy program. (Complaint, pp. 11–12.)

The second alleged “discriminative termination” was made by Defendant Thompson in the Internal Medicine I rotation course. Defendant Thompson was...