Lesser v. Neosho County Community College

• Decision Date: 04 June 1990
• Docket Number: No. 89-4003-S.,89-4003-S.
• Citation: 741 F. Supp. 854
• Parties: Michael LESSER, Plaintiff, v. NEOSHO COUNTY COMMUNITY COLLEGE and Steve Murry, Defendants.
• Court: U.S. District Court — District of Kansas

741 F. Supp. 854

Michael LESSER, Plaintiff, v. NEOSHO COUNTY COMMUNITY COLLEGE and Steve Murry, Defendants.

No. 89-4003-S.

United States District Court, D. Kansas.

June 4, 1990.

COPYRIGHT MATERIAL OMITTED

Charles T. Engel, Timothy H. Girard, Cosgrove, Webb & Oman, Topeka, Kan., for plaintiff.

Ron D. Martinek, William A. Larson, Gehrt & Roberts, Chtd., Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the court on defendants' motion for summary judgment on each of plaintiff's claims. This case arises out of plaintiff's experiences with the baseball program while attending defendant Neosho County Community College ("NCCC") and with defendant Steve Murry ("Murry"), coach of the NCCC baseball program. Plaintiff asserts claims of deprivation of liberty and property rights without due process of law in violation of the Fourteenth Amendment pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983. Plaintiff also asserts state pendent claims of fraud by silence, intentional misrepresentation, breach of contract, assault, and battery.

The following facts have been established for the purpose of the pending motion.

1. NCCC is a two-year community college located in Chanute, Kansas, and is a governmental subdivision of the state of Kansas.

2. NCCC offers the sport of baseball as one of its athletic programs. Defendant Murry has been the head baseball coach and a recruiter of NCCC since 1986.

3. In the fall of 1987, Murry, in his capacity as head baseball coach and recruiter, sent Mike Lesser a letter dated November 19, 1987, inquiring whether Lesser would be interested in going to school and playing baseball at NCCC.

4. On February 3, 1988, Murry again wrote to plaintiff and inquired about plaintiff's interest in visiting the NCCC campus. In the correspondence sent to plaintiff, Murry enclosed a questionnaire, a school brochure, and a flyer on the NCCC "Panther" Baseball program, which was written and edited by Murry.

5. The Panther baseball brochure made the following statements:

(a) "The Neo-Kan dormitory has co-ed living quarters.... You and your roommate will enjoy wall-to-wall carpeted rooms with individual study coves.";

(b) "The philosophy here is simple—my knowledge and your ability and hard work equal success in baseball, the classroom and in growing up. If you work for me, I will work for you.";

(c) "The baseball coaching staff does work hard and long to improve every phase of your game."; and

(d) "The baseball coaching staff does not recruit great athletics and just turn them loose."

6. In the spring of 1988, plaintiff made a visit to the NCCC campus. During this visit, plaintiff participated in a tryout where he threw between 10-50 pitches while being observed by Murry. Plaintiff was being recruited as pitcher and also tried out as an outfielder.

7. At the conclusion of the tryout, Murry offered plaintiff the opportunity to sign a Kansas Jayhawk Community College Conference ("KJCCC") letter of intent to attend NCCC.

8. The member institutions of the KJCCC are also members of the National Junior College Athletic Association ("NJCAA".)

9. During plaintiff's first visit to NCCC, Murry advised plaintiff that the baseball team had a haircut policy and that plaintiff would need to get a haircut to participate in the baseball program. Also, plaintiff was advised that he would not be able to wear an earring while a member of the baseball team.

10. Murry never informed plaintiff prior to signing the letter of intent to attend and play baseball at NCCC that plaintiff could be eliminated from the program, or "cut," or that there would be cuts from the baseball team.

11. Murry cut players from the baseball team during the 1986-87 and 1987-88 seasons. Murry was aware that if Lesser was cut from the baseball team after attending classes at NCCC, plaintiff would be precluded from playing baseball at other NJCCC, NAIA or NCAA schools during the academic year.

12. Murry did not inform plaintiff prior to his signing the letter of intent of the baseball team's written and unwritten rules and monetary fine system to enforce the rules.

13. Before signing the letter of intent, plaintiff advised Murry that he would have to talk the matter over with his parents.

14. Plaintiff and his parents traveled to Chanute, Kansas, on or about April 29, 1988, so that plaintiff's parents could have an opportunity to see the campus. During this visit, Murry told plaintiff's parents that plaintiff would have to get a haircut in order to play ball at NCCC.

15. On April 29, 1988, plaintiff signed the KJCCC letter of intent to attend NCCC. Plaintiff's mother also signed the letter of intent. Under the terms of the letter of intent, NCCC agreed to award plaintiff a scholarship to cover the expenses of books and tuition for the spring semester and of books for the fall semester, if plaintiff met the admission requirements of NCCC. The letter of intent did not promise that plaintiff would be allowed to play baseball for NCCC or guarantee him a spot on the baseball team.

16. On August 16, 1988, plaintiff arrived in Chanute, Kansas, to begin attending NCCC. Prior to arriving at Chanute, plaintiff got a haircut. Upon his arrival, plaintiff checked in with Paul Marquez, a coach for the baseball team, to receive his room assignment in the school's dormitory.

17. Due to an overflow in the dormitory, the staff had to convert the central lobbies of each floor plus the recreation room into dormitory rooms. Plaintiff was assigned to the recreation room along with three other students, two of whom were baseball players. Although plaintiff and his mother were not happy with the situation, plaintiff did not complain because he did not want to "make waves." Therefore, plaintiff did not request reassignment to a different room.

18. Shortly after plaintiff's arrival at NCCC, other members of the baseball team told plaintiff he would need to cut his hair shorter in order to play on the team. Therefore, plaintiff consented to and received a crewcut style haircut from Dan Biby, a student assistant for the baseball team. Plaintiff got this haircut because he thought his hair was not short enough to comply with the team rules. This haircut was not at the direction of Coach Murry.

19. Plaintiff attended the first baseball meeting which was conducted by Murry. At this meeting, Murry passed out a written list of team rules. Murry indicated that these rules had been used in previous years by the team. In his deposition, Murry stated that the purpose of the team rules was to instill discipline and teach responsibility. Also, Murry indicated that some of the rules regarding player appearance were his personal preference as to the "team look." Murry also stated that there were certain unwritten rules and that he made up some rules as needed.

20. Also at the first meeting, Murry advised the players that in previous years the team had agreed to a one dollar fine or penalty for each violation of the team rules. The players voiced no objection to the continuation of the fine system. At this time, Murry did not disclose the unwritten rules.

21. The fine money which was collected from the players for violating the rules was used to purchase equipment and items needed by the baseball team. The funds were deposited into a baseball team account in which Murry also deposited personal funds. Murry did not monitor the withdrawals from the team account.

22. Players were also advised that if they desired to contest the imposition of a fine, they would have to appeal the matter to the "kangaroo court." The "kangaroo court" was comprised of other members of the baseball team who apparently were chosen by Murry if an appeal of a fine was desired. If a player lost his appeal to the "kangaroo court," the rules stated that the fine would be doubled.

23. Also at the first meeting, Murry advised the players that due to the number of individuals on the team he would be making cuts to trim the roster. The cuts were to occur after four practices.

24. The first day of classes at NCCC was August 18, 1988.

25. Plaintiff participated in four practices while at NCCC. During these practices, plaintiff was assessed $4 in fines for violating four of the team rules. Plaintiff allegedly violated the written rule of not having a close shave. Plaintiff contends that he vocally contested the imposition of the fine for this violation. Also, plaintiff was fined for violating three unwritten rules: wearing a wrist bracelet, being in the wrong place at the wrong time, and not wearing a "cup."

26. Plaintiff paid the fines and did not attempt to appeal their imposition to the "kangaroo court." Plaintiff maintains that he did not know who comprised the court or to whom to appeal. Also, plaintiff states that he was under the impression that one could not successfully appeal fines to the "kangaroo court."

27. Dave Peter (Peter), an assistant coach for the baseball team, was in charge of evaluating the pitchers. In watching plaintiff's pitches, Peter was not impressed with plaintiff's speed or control. Peter gave plaintiff no personal instruction with regard to technique at any time. During the fourth practice, plaintiff threw approximately 50 pitches. During this time, Peter summoned Murry to watch plaintiff pitch. Murry concluded that plaintiff did not have a sufficient fast ball to help the team and did not have good control on his pitches. Peter recommended to Murry that plaintiff be one of the individuals cut from the team.

28. During one of the four practices, Murry initiated a "cup check." A cup is an athletic supporter reinforced usually with plastic to provide protection to the wearer's genitals. It was an unwritten rule that all NCCC baseball players were required to wear cups. Murry conducted the cup check to determine if each player was wearing a cup.

29. On the occasion in issue, Murry yelled "cup check" and second-year...