Sarver v. Jackson, 090209 FED11, 08-16903

Docket Nº:08-16903
Party Name:SUZANNE SARVER, Plaintiff-Appellant, v. RON JACKSON, each personally and in their official capacities, KRISTI CARMAN, each personally and in their official capacities,et al., Defendants-Appellees.
Case Date:September 02, 2009
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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SUZANNE SARVER, Plaintiff-Appellant,

v.

RON JACKSON, each personally and in their official capacities, KRISTI CARMAN, each personally and in their official capacities,et al., Defendants-Appellees.

No. 08-16903

United States Court of Appeals, Eleventh Circuit

September 2, 2009

DO NOT PUBLISH

Appeal from the United States District Court for the Northern District of Georgia, D. C. Docket No. 08-00077-CV-RWS-2

Before EDMONDSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

Suzanne Sarver, a student at North Georgia Technical College (NGTC) proceeding pro se, appeals the dismissal of her civil complaint filed pursuant to 42 U.S.C. § 1983 and Title IX, 20 U.S.C. § 1681.1 Sarver argues the district court erred in dismissing her complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. She asserts she sufficiently alleged: (1) the defendants violated her due process rights under § 1983 before suspending her from school; (2) the Georgia torts of slander, libel, and defamation of character; and (3) sexual harassment by the staff and students interfered with her ability to attend school, and the deliberate indifference of the staff created an intimidating and hostile school environment. We review each claim in turn. After de novo review, we affirm the district court's dismissal of her complaint.2

I. DUE PROCESS CLAIM UNDER § 1983

Sarver argues her due process rights were violated because (1) the school set the hearing during exams, (2) she was only given a general statement of the charges, (3) her sanction was arbitrarily increased to a suspension, and (4) her appeal was ignored because it was sent by e-mail. Sarver also contends the defendants were not entitled to qualified immunity.

Section 1983 provides a remedy for deprivation of federal statutory and constitutional rights. Almand v. DeKalb, 103 F.3d 1510, 1512 (11th Cir. 1997). "In order to prevail on a civil rights action under § 1983, a plaintiff must show that he or she was deprived of a federal right by a person acting under color of state law." Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). A state official, when sued in his official capacity for damages, is not a person within the meaning of § 1983. Will v. Michigan Dep't of State Police, 109 S.Ct. 2304, 2312 (1989).

Furthermore, "[q]ualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007). Qualified immunity is an affirmative defense that must be pled, or else it is deemed waived. Skrtich v. Thornton, 280 F.3d 1295, 1306 (11th Cir. 2002). Qualified immunity may...

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