Richard v. Perkins, CIV.A.04-2499-KTV.

• Decision Date: 13 June 2005
• Docket Number: No. CIV.A.04-2499-KTV.,CIV.A.04-2499-KTV.
• Citation: 373 F.Supp.2d 1211
• Parties: Stephane RICHARD, Plaintiff, v. Lew PERKINS, in his official and individual capacities, and Stanley Redwine, in his official and individual capacities, Defendants.
• Court: U.S. District Court — District of Kansas

373 F.Supp.2d 1211

Stephane RICHARD, Plaintiff, v. Lew PERKINS, in his official and individual capacities, and Stanley Redwine, in his official and individual capacities, Defendants.

No. CIV.A.04-2499-KTV.

United States District Court, D. Kansas.

June 13, 2005.

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Michael M. Shultz, Law Firm of Michael M. Shultz, P.A., Overland Park, KS, for Plaintiff.

Sara L. Trower, University of Kansas General Counsel, Lawrence, KS, Wyatt Wright, Foulston Siefkin LLP, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

VRATIL, District Judge.

Plaintiff Stephane Richard brings suit under 42 U.S.C. § 1983 against Lew Perkins, University of Kansas Athletic Director, and Stanley Redwine, University of Kansas Head Track Coach. Plaintiff claims that Redwine and Perkins (1) removed him from the University of Kansas track team in retaliation for his exercise of First Amendment rights to free speech and petition for redress and his Fourteenth Amendment rights to procedural due process; and (2) violated his right to substantive due process by arbitrarily dismissing him from the track team. This matter comes before the Court on Defendant Stanley Redwine's Motion For Judgment On The Pleadings (Doc. # 11) filed December 27, 2005, Defendant Lew Perkins' Motion For Judgment On The Pleadings (Doc. # 19) filed February 9, 2005, and Perkins' Motion To Stay Discovery (Doc. # 21) filed February 9, 2005. For reasons stated below, the Court finds that defendants' motions for judgment on the pleadings should be sustained in part, and that Perkins' motion to stay discovery should be overruled as moot.

Standards

A motion for judgment on the pleadings under Rule 12(c) is governed by the same standards as a motion to dismiss under Rule 12(b)(6). Mock v. T.G. & Y., 971 F.2d 522, 528 (10th Cir.1992). In reviewing defendants' motions, the Court assumes the veracity of the "well-pleaded factual allegations" in the pretrial order and draws all reasonable inferences in plaintiff's favor. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987); see Zinermon v. Burch, 494 U.S. 113, 118, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990). The issue is not whether plaintiff ultimately will prevail, but whether plaintiff is entitled to offer evidence to support his claims. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984). The Court may dismiss a case for failure to state a claim only if it appears beyond a doubt that plaintiff can prove no set of facts in support of his theory of recovery that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

In support of their motions, defendants rely upon exhibits attached to their answers. Defendants ask the Court to consider these documents as part of the pleadings, or to convert the motions to motions for summary judgment. Plaintiff responds that the documents are not part of the pleadings. Rule 8, Fed.R.Civ.P., provides that pleadings consist of concise and direct statements of claims for relief, defenses and affirmative defenses. Under Rule 10, Fed. R. Civ. P, documents attached as exhibits to pleadings — such as the scholarship agreements and letters attached to defendants' answers — technically are part of the pleadings. See Rule 10(c) Fed R. Civ. P. (exhibits to pleading part of pleading for all purposes); Webster v. New Lenox School Dist. No. 122, 917 F.2d 1004, 1005-06 (7th Cir.1990) (letter attached as exhibit to pleading part of pleading). Mere attachment of such documents, however, does not render such exhibits dispositive. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 674-675 (2d Cir.1995). In ruling on a motion under Rule 12(c), the Court must consider plaintiff's well-pleaded facts to be true, and draw all inferences in his favor. Finally, although the Court has broad discretion to convert a Rule 12(c) motion to a motion for summary judgment, see Nichols v. United States, 796 F.2d 361, 364 (10th Cir.1986), the Court declines to do so in this case.

Facts

The following facts are taken from plaintiff's complaint.

The University of Kansas ("KU") awarded Richard a scholarship to participate on the men's track team in horizontal jump events, and he enrolled at KU in January of 2003. Richard would not have attended KU without the scholarship and the ability to participate on the track team. The scholarship agreement provided that the scholarship was for one year and was renewable.¹

On June 24, 2004, the KU Office of Student Financial Aid notified Richard that based on an alleged act of disrespect by Richard, Redwine had decided not to renew his scholarship for the 2004-2005 academic year. Richard appealed this decision to the Student Athlete Appeals Board ("SAAB"), which on August 3, 2004, reversed Redwine's decision and reinstated Richard's scholarship for 2004-2005.

On August 22, 2004, Richard attempted to attend a track team photograph session. In front of team members, Redwine informed Richard that he was expelled from the team and could not be in the team picture. Redwine also barred Richard from using the team training facilities and refused to explain his decision to remove Richard from the team. On September 3, 2004, Richard appealed his expulsion to Perkins and Terrence Hines, the Associate Athletic Director for Compliance and Legal Affairs.

Richard has a vital interest in being able to train and compete because he intends to compete for a place on the Canadian Olympic team. If Richard is not a member of the track team, he is not eligible for a scholarship in 2005-2006.

Redwine's son, Stanley Redwine, Jr., is a member of KU's men's track team and competes in the same events as Richard. Redwine expelled Richard from the team to favor his son over Richard. Redwine lacked good cause to expel Richard from the team, and his decision resulted from a conflict of interest.

Richard alleges that when he appealed Redwine's decision to terminated his scholarship, he was exercising his First Amendment rights to free speech and petition the government and his Fourteenth Amendment right to procedural due process. Richard claims that Redwine expelled him from the team in retaliation for this constitutionally protected conduct, and that Perkins also violated his First and Fourteenth Amendment rights when he upheld Redwine's decision to expel him. Richard further claims that Redwine and Perkins violated his substantive due process rights when they expelled him from the team.

Richard seeks injunctive relief, including reinstatement to the team, and damages against Redwine and Perkins in their individual capacities. He also seeks punitive damages against Redwine.

Analysis

Both defendants assert that they are entitled to judgment on the pleadings on all claims because plaintiff has not set forth claims on which relief may be granted. Alternatively, defendants assert that in their individual capacities they are entitled to qualified immunity.

"Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity provides government officials immunity from suit as well as from liability for their discretionary acts. See Mitchell v. Forsyth, 472 U.S. 511, 526-27, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985); Pueblo Neighborhood Health Ctrs. v. Losavio, 847 F.2d 642, 644 (10th Cir.1988); see also Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). The doctrine of qualified immunity serves the goals of "protecting officials who are required to exercise their discretion and the related public interest in encouraging the vigorous exercise of official authority." Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978).

To determine whether plaintiff can overcome the qualified immunity defense, the Court first determines whether plaintiff has asserted a violation of a constitutional or statutory right. Roska v. Peterson, 328 F.3d 1230, 1239 (10th Cir.2003). The Court then decides whether that right was clearly established such that a reasonable person would have known that the conduct violated that right. Id. (citing Garramone v. Romo, 94 F.3d 1446, 1449 (10th Cir.1996)). Order is important; the Court must decide first whether plaintiff has alleged a constitutional violation, and only then proceed to determine whether the law was clearly established. Roska, 328 F.3d at 1239 (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

I. Retaliation Claims

Plaintiff claims that defendants expelled him from the track team in retaliation for his exercise of constitutional rights in appealing the decision not to renew his scholarship. Specifically, plaintiff asserts that in appealing the non-renewal decision, he invoked his constitutional rights to free speech and petition the government for redress, and to procedural due process.

A. First Amendment Rights To Free Speech And To Petition The Government

Defendants assert that they are they are entitled to judgment on the pleadings because as a matter of law, plaintiff's speech and petition for redress did not involve matters of public concern. Alternatively, defendants assert that even if plaintiff's First Amendment activity touched a matter of public concern, they are entitled to qualified immunity because at the time of the violation, plaintiff's right to appeal the non-renewal of his scholarship was not clearly established.

The First Amendment protects the right to free speech and the right to petition the government for redress of grievances. The Supreme Court has interpreted the Petition Clause to...