R.W. v. Bd. of Regents of the Univ. Sys. of Ga.

• Decision Date: 27 February 2015
• Docket Number: Civil Action No. 1:13–CV–2115–LMM.
• Citation: 114 F.Supp.3d 1260
• Parties: R.W., Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, Defendant.
• Court: U.S. District Court — Northern District of Georgia

114 F.Supp.3d 1260

R.W., Plaintiff,

v.BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, Defendant.

Civil Action No. 1:13–CV–2115–LMM.

United States District Court, N.D. Georgia, Atlanta Division.

Signed Feb. 27, 2015.

James E. Radford, William Caleb Gross, Radford & Keebaugh, LLC, Decatur, GA, Jeffrey Filipovits, Filipovits Law Firm, P.C., Atlanta, GA, for Plaintiff.

Laura Louise Lones, Attorney General's Office, Ronald J. Stay, Jr., Stites & Harbison, PLLC, Atlanta, GA, for Defendant.

ORDER

LEIGH MARTIN MAY, District Judge.

This is a disability discrimination action under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq., and Section 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794 et seq. This matter is before the Court on Plaintiff's Motion to Strike the Declaration of Dr. Jill Lee–Barber [55], Defendant's Motion to Exclude Report and Testimony of Dr. Bhushan Agharkar [52], Defendant's Motion to Exclude Report and Testimony of Jason Ebbeling [51], Defendant's Motion for Summary Judgment [39], and Plaintiff's Motion for Summary Judgment [41]. The Court held a hearing on the above-mentioned motions on February 5, 2015. For the reasons stated below, and with the benefit of oral argument, Plaintiff's Motion to Strike [55] is DENIED, Defendant's Motions to Exclude [51, 52] are DENIED, Plaintiff's Motion for Summary Judgment [41] is DENIED, and Defendant's Motion for Summary Judgment [39] is DENIED.

I. Background

Plaintiff enrolled as a student at Georgia State University ("GSU") in the spring 2013 semester and was accepted to live in student housing. Dkt. No. [54–1] at 1; Dkt. No. [49] at 3. Defendant Board of Regents governs, controls, and manages the University System of Georgia, which includes GSU. Dkt. No. [49] at 1–2.

Plaintiff visited GSU's student health center on February 14, 2013, seeking medical testing. Dkt. No. [54–1] at 17. At the health center, Plaintiff met with Nurse Practitioner John Gentry. Id. In providing his medical history, Plaintiff disclosed to Mr. Gentry that he had been diagnosed with schizophrenia

. Dkt. No. [49] at 5. Mr. Gentry contacted Dr. Donaldson, a staff psychologist at GSU's Counseling and Testing Center ("CTC"), informing him that Plaintiff was exhibiting unusual behavior in his ability to communicate. Dkt. No. [54–1] at 17–18; Dkt. No. [49] at 7. Plaintiff alleges that Mr. Gentry told him it was mandatory that Plaintiff go with him to the CTC, though Defendant contends that Mr. Gentry asked Plaintiff if he would like to go to the CTC and assisted Plaintiff in locating it. Dkt. No. [54–1] at 18.

At the CTC, Plaintiff provided information on a computer and then met with Dr. Donaldson. Dkt. No. [54–1] at 18. Dr. Donaldson initiated a clinical interview, which "segued pretty quickly into a mental status examination." Dkt. No. [49] at 8. Dr. Donaldson questioned Plaintiff about his history of symptoms and his current symptoms, including any history of hallucinations. Id. Plaintiff disclosed that he sometimes experienced visual and auditory hallucinations and had experienced them within the last two days. Id.

Defendant alleges that during the meeting with Dr. Donaldson, Plaintiff engaged in a number of behaviors that suggested he might be experiencing a hallucination at that time, including looking into corners and checking around, having difficulty maintaining focus and eye contact, and having an unusual time and cadence to his speech. Dkt. No. [54–1] at 18; Dkt. No. [49] at 9. In Dr. Donaldson's opinion, Plaintiff seemed to be responding to "internal stimuli," which means a person is experiencing something that doesn't objectively exist. Dkt. No. [54–1] at 19. Plaintiff disputes he was having a hallucination at that time, and says his behavior was "agitated" because Dr. Donaldson was asking him questions he did not want to answer. Id. at 18–19; Dkt. No. [49] at 9.

During the meeting, Plaintiff asked Dr. Donaldson if he was required to be there and Dr. Donaldson said that he was not, so Plaintiff left the CTC. Dkt. No. [54–1] at 21. Defendant admits this, but adds that Plaintiff left at the moment when Dr. Donaldson asked him if he had experienced "command hallucinations

." Id. at 21–22; Dkt. No. [49] at 10. Plaintiff testified that he did not remember being questioned about any hallucinations and left the meeting not because of any one question, but because Dr. Donaldson was asking him questions he did not want to answer. Dkt. No. [54–1] at 22.

After Plaintiff left, Dr. Donaldson consulted with Dr. Mikyta Daugherty, a licensed psychologist and Coordinator of Clinical Services at the CTC. Id. at 25. Dr. Donaldson and Dr. Daugherty agreed they should institute a safety check to make sure Plaintiff was not in danger, and they contacted the Office of the Dean of Students to make the request. Id. Dr. Donaldson signed "10–13" documentation authorizing the transportation of Plaintiff to Grady Hospital for a mental evaluation. Id.; Dkt. No. [49] at 13. Defendant alleges that Dr. Donaldson would have had the same level of concern about Plaintiff and his exit from the meeting even if he had not reported a history of schizophrenia

with symptoms of hallucinations. Dkt. No. [54–1] at 25. Plaintiff disputes this assertion, claiming the objective evidence indicated that Plaintiff did not pose any risk and questions whether Dr. Donaldson's "concern" existed or was genuine.Id. at 26. Defendant contends that the psychologists at GSU's CTC regularly see students who have been diagnosed with schizophrenia and typically do not refer them for mandated risk screenings on that basis alone, a fact which Plaintiff disputes. Id. at 64–65.

Following receipt of Dr. Donaldson's "10–13" documentation, Nicole Johnson, Senior Coordinator of Student Assistance and Victim Assistance in the Office of the Dean of Students, contacted Plaintiff on his cell phone and asked him to come to the Dean of Students' Office. Id. at 2; Dkt. No. [49] at 13. Plaintiff agreed, and when he arrived two GSU police officers were waiting there for him. Dkt. No. [49] at 13–14. Ms. Johnson asked Plaintiff to complete a release of information form to allow Grady Memorial Hospital to communicate with GSU about his medical care, and Plaintiff complied. Id. at 14. Plaintiff was then transported by patrol car to Grady, and was described by police as "calm and cooperative." Id. Plaintiff was at Grady for several hours and met with a physician there. Id. at 15. The physician determined that Plaintiff did not meet the "10–13 criteria" and released him. Id. Defendant notes that Plaintiff did not meet with a psychiatrist, psychologist, or any other mental health provider while at Grady. Id.

The following day, February 15, 2013, Dr. Rebecca Stout, Associate Vice President for Student Affairs and Dean of Students at GSU, referred Plaintiff for a mandatory risk screening. Dkt. No. [54–1] at 26. As Dean of Students, Dr. Stout is the primary and ultimate decision maker concerning the mandated risk screening process and the associated policies. Id. at 11. Dr. Stout made the decision to require that Plaintiff participate in the mandated risk screening process, indicating on the referral form that the reason for the screening was "cognitive impairment," not "harm to others." Id. at 14, 26. The referral form indicated examples of cognitive impairment include "nonresponsive, incoherent, loose associations, highly distractible." Dkt. No. [49] at 20. Defendant explains that cognitive impairment was indicated because "the cognitive break Plaintiff experienced while meeting with Dr. Donaldson had made Dr. Stout concerned that Plaintiff posed a potential risk of harm to others." Dkt. No. [54–1] at 27.

Defendant admits that Plaintiff has never been disciplined for any sort of threatening or disruptive behavior in classes or in student housing, has never written or said anything suggesting violence or a desire to harm someone, has never been involved in any altercations, and has never been arrested or charged with a crime. Dkt. No. [49] at 3–4.

Plaintiff met with Ms. Johnson on February 15, 2013, and, per Dr. Stout's instruction, she informed him that he would be required to participate in the risk screening and would not be allowed to remain in student housing while the risk screening was being completed. Id. at 19; Dkt. No. [54–1] at 28–29. After the meeting with Ms. Johnson, Plaintiff met with Dr. Jill Lee–Barber, director of psychological and health services at GSU. Id. at 2; Dkt. No. [49] at 22. Plaintiff informed Dr. Lee–Barber that he had been diagnosed with schizophrenia

at eight years old, was not in therapy or seeing a doctor, and had discontinued his medication approximately six months prior. Dkt. No. [54–1] at 29.

Dr. Lee–Barber also reviewed records from Plaintiff's prior mental healthcare providers, which Plaintiff was required to disclose. Id. at 30; Dkt. No. [49] at 23. Those records included notes and reports from Drs. Patel and Fox, who Plaintiff had previously seen regarding his schizophrenia

. Dkt. No. [54–1] at 31. Both doctors indicated that Plaintiff had reported auditory and visual hallucinations in August 2011 and February 2012. Id. Dr. Fox's assessment, which was completed in October 2011 while Plaintiff was 17 years old, included notes from Plaintiff's sister indicating that Plaintiff had "a history of aggression, depression, anxiety, anger, language delays, poor social skills, temper tantrums, and sexual abuse." Id. at 32; Dkt. No. [49] at 26. However, Plaintiff and his sister claim Dr. Fox's report was not consistent with what they told him. Dkt. No. [54–1] at 32. Dr. Fox's report also indicated that Plaintiff reported hitting a dog for no reason, but Plaintiff testified that he hit his dog because she bit him. Id. at 36–37.

After meeting with Plaintiff and reviewing his medical records, Dr. Lee–Barber prepared an evaluation, concluding he was "at significant risk related to his diagnosis of paranoid...