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Green v. Jacksonville State University

United States District Court, N.D. Alabama, Eastern Division

June 6, 2017

JALEN GREEN, Plaintiff,


          VIRGINIA EMERSON HOPKINS United States District Judge

         I. Introduction

         Plaintiff Jalen Green (“Mr. Green”) initiated this discrimination in education case on June 28, 2016, against Jacksonville State University (“JSU”) and several individual Defendants (sued in their personal capacities only). Mr. Green has sued Defendants under Title VI of the Civil Rights Act of 1964, [1] 42 U.S.C. § 1983, 42 U.S.C. § 1981, and Alabama law. (Doc. 1 at 2 ¶ 2). Mr. Green's most recent pleading is a Corrected Repleaded Complaint[2] (Doc. 29) filed on October 29, 2016.[3]

         Pending before the court is a Motion To Dismiss (Doc. 47) (the “Partial Motion”) filed by Defendants Jacksonville State University (“JSU”), Dr. Kenneth Bodiford (“Dr. Bodiford”), Dr. Timothy King (“Dr. King”), and Dr. Christopher Probst (“Dr. Probst”) (collectively Drs. Bodiford, King, and Probst are sometimes referred to as the “Individual Defendants”)[4] on January 6, 2017. The claims at issue in the Partial Motion are limited to:

• Count I (Doc. 29 ¶¶ 92-100) against Dr. Bodiford for violation of the equal protection clause asserted pursuant to § 1983 and § 1981;
• Count II (Doc. 29 ¶¶ 101-08) against Dr. Bodiford for tort liability asserted under Alabama law;
• Count I (Doc. 29 ¶¶ 109-115) against Dr. King for violation of the equal protection clause asserted pursuant to § 1983 and § 1981;
• Count I (Doc. 29 ¶¶ 116-121) against Dr. Probst for violation of the equal protection clause asserted pursuant to § 1983 and § 1981;
• Unnumbered Count (Doc. 29 ¶¶ 182-88) against “Individual Defendants” for intentional and negligent infliction of emotional distress under Alabama law; and
• Count I (Doc. 29 ¶¶ 151-165) against JSU for a claim of a racially hostile environment in education (or student-on-student racial harassment) arising under Title VI.

         Mr. Green opposed Defendants' Partial Motion on February 25, 2017. (Doc. 52). Defendants followed with their reply (Doc. 55) on March 6, 2017.

         Having carefully considered the contentions raised by both sides, the Partial Motion is GRANTED IN PART, DENIED IN PART, and otherwise TERMED as MOOT.

         II. Standards

         A. Rule 12(b)(6) Dismissal Standard

         A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint. See Fed. R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: (6) failure to state a claim upon which relief can be granted[.]”). The Federal Rules of Civil Procedure require only that the complaint provide “‘a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957) (footnote omitted) (quoting Fed.R.Civ.P. 8(a)(2)), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007); see also Fed. R. Civ. P. 8(a) (setting forth general pleading requirements for a complaint including providing “a short and plain statement of the claim showing that the pleader is entitled to relief”).

         While a plaintiff must provide the grounds of his entitlement to relief, Rule 8 does not mandate the inclusion of “detailed factual allegations” within a complaint. Twombly, 550 U.S. at 555, 127 S.Ct. at 1964 (quoting Conley, 355 U.S. at 47, 78 S.Ct. at 103). However, at the same time, “it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” Twombly, 550 U.S. at 563, 127 S.Ct. at 1969.

         “[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Id. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. (emphasis added). “Under Twombly's construction of Rule 8 . . . [a plaintiff's] complaint [must] ‘nudge[] [any] claims' . . . ‘across the line from conceivable to plausible.' Ibid.” Iqbal, 556 U.S. at 680, 129 S.Ct. at 1950-51.

         A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949. “The plausibility standard is not akin to a ‘probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. at 1965).

         B. Motion for Judgment on the Pleadings[5]

         Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). As the Eleventh Circuit has explained the Rule 12(c) standard:

Judgment on the pleadings is appropriate when there are no material facts in dispute, and judgment may be rendered by considering the substance of the pleadings and any judicially noticed facts. See Bankers Ins. Co. v. Florida Residential Property and Cas. Joint Underwriting Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998) (citing Hebert Abstract Co. v. Touchstone Properties, Ltd., 914 F.2d 74, 76 (5th Cir. 1990)); see also Rule 12(c), Fed.R.Civ.P. When we review a judgment on the pleadings, therefore, we accept the facts in the complaint as true and we view them in the light most favorable to the nonmoving party. See Ortega, 85 F.3d at 1524 (citing Swerdloff v. Miami Nat'l Bank, 584 F.2d 54, 57 (5th Cir. 1978)). The complaint may not be dismissed “‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Slagle, 102 F.3d at 497 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) & citing Hartford Fire Ins. Co. v. California, 509 U.S. 764, 811, 113 S.Ct. 2891, 2916-17, 125 L.Ed.2d 612 (1993)).

Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998).

         Further, “[w]hether the court examine[s] [a pleading] under Rule 12(b)(6) or Rule 12(c), the question [remains] the same: whether the [complaint] stated a claim for relief.” Sampson v. Washington Mut. Bank, 453 F. App'x 863, 865 n.2 (11th Cir. 2011) (emphasis added) (quoting Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 n.8 (11th Cir. 2002)); Sampson, 453 F. App'x at 865 n.2 (applying Strategic Income and concluding that court's error in granting a dismissal under Rule 12(c) instead of Rule 12(b)(6) was harmless).

         C. Qualified Immunity

         The Individual Defendants assert that qualified immunity bars Mr. Green's federal claims brought against them in their individual capacities. “The defense of qualified immunity completely protects government officials performing discretionary functions from suit in their individual capacities unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.'” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003) (internal quotation marks omitted) (quoting Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003)). “To receive qualified immunity, a government official first must prove that he was acting within his discretionary authority.” Cottone, 326 F.3d at 1357.

         This is a two-part test. Under the first step, “the defendant must [prove that he or she was] performing a function that, but for the alleged constitutional infirmity, would have fallen within his legitimate job description.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1266 (11th Cir. 2004). Next, the defendant must prove that he or she was “executing that job-related function[.]” Id. at 1267. “Once a defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that the defendant is not entitled to qualified immunity.” Cottone, 326 F.3d at 1358.[6]

         Until 2009, the Supreme Court had required a two-part inquiry to determine the applicability of qualified immunity, as established by Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001), modified in application by Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct. 808, 813, 172 L.Ed.2d 565 (2009) (holding that “Saucier procedure should not be regarded as an inflexible requirement”). Under the Saucier test, “[t]he threshold inquiry a court must undertake in a qualified immunity analysis is whether [the] plaintiff's allegations, if true, establish a constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002).

         If, under the plaintiff's allegations, the defendants would have violated a constitutional right, “the next, sequential step is to ask whether the right was clearly established.” Cottone, 326 F.3d at 1358 (quoting Saucier, 533 U.S. at 201, 121 S.Ct. at 2156). The “clearly established” requirement is designed to assure that officers have fair notice of the conduct which is proscribed. Hope, 536 U.S. at 739, 122 S.Ct. at 2515. This second inquiry ensures “that before they are subjected to suit, officers are on notice their conduct is unlawful.” Saucier, 533 U.S. at 206, 121 S.Ct. at 2158.

         The “unlawfulness must be apparent” under preexisting law.[7] Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citing Malley v. Briggs, 475 U.S. 335, 344-45, 106 S.Ct. 1092, 1097-98, 89 L.Ed.2d 271 (1986)). Therefore, a temporal requirement exists related to this inquiry. More particularly, a plaintiff must show that a reasonable public officer would not have believed her actions to be lawful in light of law that was clearly established at the time of the purported violation. See Anderson, 483 U.S. at 639, 107 S.Ct. at 3038 (“[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the ‘objective legal reasonableness' of the action[, ] assessed in light of the legal rules that were ‘clearly established' at the time it was taken[.]”) (emphasis added) (citation omitted); Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004) (“If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.”) (emphasis added); Brosseau, 543 U.S. at 198, 125 S.Ct. at 599 (“Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.”) (emphasis added); see also Johnson v. Clifton, 74 F.3d 1087, 1093 (11th Cir. 1996) (“We know of no [preexisting] case which might have clearly told Clifton that he could not take the disciplinary action indicated by an investigation which was initiated before he even knew about the allegedly protected speech, and in circumstances where the public concern implication was doubtful.”).

         However, the Saucier framework was made non-mandatory by the Supreme Court in Pearson, 555 U.S. at 236, 129 S.Ct. at 818, in which the Court concluded that, “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.” Thus, “judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Id.

         Despite the Supreme Court's modification of Saucier's analytical process, the substantive analysis remains unchanged; an officer is entitled to qualified immunity protection as long as he “could have believed” his conduct was lawful. Hunter v. Bryan, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991).Therefore, to deny immunity, a plaintiff must affirmatively demonstrate that “no reasonably competent officer would have” acted as the public official did. Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986).

         In determining whether the plaintiff meets this burden in the context of a motion to dismiss, the court is guided by the Eleventh Circuit's recent holding in Randall v. Scott, 610 F.3d 701 (11th Cir. 2010), which clarifies that the heightened pleading rule no longer applies to civil rights cases in which a qualified immunity defense is asserted:

While Swann, GJR, and Danley reaffirm application of a heightened pleading standard for § 1983 cases involving defendants able to assert qualified immunity, we agree with Randall that those cases were effectively overturned by the Iqbal court. Pleadings for § 1983 cases involving defendants who are able to assert qualified immunity as a defense shall now be held to comply with the standards described in Iqbal. A district court considering a motion to dismiss shall begin by identifying conclusory allegations that are not entitled to an assumption of truth-legal conclusions must be supported by factual allegations. The district court should assume, on a case-by-case basis, that well pleaded factual allegations are true, and then determine whether they plausibly give rise to an entitlement to relief. . . .
After Iqbal it is clear that there is no “heightened pleading standard” as it relates to cases governed by Rule 8(a)(2), including civil rights complaints. All that remains is the Rule 9 heightened pleading standard.

Randall, 610 F.3d at 709-10 (emphasis added) (footnote omitted).

         III. Mr. Green's Factual Allegations

         Defendants have indicated that they dispute many of Mr. Green's allegations. (Doc. 47-1 at 5).[8] However, at the pleadings stage, the court must accept Mr. Green's well-pleaded facts as true. Accordingly, the following factual allegations are taken directly from Mr. Green's Corrected Repleaded Complaint (subject only to some minimal modifications to give context to the court's analysis).

         JSU Background

         JSU is a recipient of federal funding. (Doc. 29 ¶ 4). JSU has a Music Department and a marching band named the “Marching Southerners Marching Band” (“MSMB”). (Doc. 29 ¶¶ 4, 5, 13, 14).

         Dr. Bodiford works for JSU's Music Department, is the MSMB band director, and has authority over the band program. (Doc. 29 ¶ 5). Dr. Bodiford has substantial control over the harassers, including the context in which the harassment occurred, and has authority to take remedial and disciplinary action. (Doc. 29 ¶ 5).

         Dr. Probst is a JSU employee and trumpet instructor in the Music Department. (Doc. 29 ¶ 6). Dr. Probst has oversight and supervision of the trumpet section and the authority to take remedial and disciplinary action against the harassers. (Doc. 29 ¶ 6). Dr. King, the Vice President of JSU, is a supervisory official and in a position to address Mr. Green's complaint(s) at the time of the actions alleged. (Doc. 29 ¶ 7).

         Drs. King, Bodiford, and Probst are “appropriate officials” for purposes of receiving complaints under Title VI as defined by the 2016 JSU Handbook. (Doc. 29 ¶¶ 5-7). Mr. Knauss and Mr. Waits (who Mr. Green has sued) were members of the MSMB's leadership council and/or section leaders. (Doc. 29 ¶¶ 8, 9).

         The MSMB's leadership hierarchy consists (in descending rank order) as follows: 1) the Director of Bands, 2) instructional staff; 3) Secretary of the University Bands; 4) Leadership Council (includes all instructors and section leaders); 5) the Drum Majors, 6) the “section leaders” (aka “section leads”) - e.g. student leaders of a respective instrumental section. (Doc. 29 ¶ 19).

         At no time prior to 2016 did JSU have a policy (at least none that was publicized to students) defining and prohibiting racial and/or retaliatory harassment (whether peer-on-peer, or faculty-on-peer) and explaining procedures for reporting and resolving complaints of racial or retaliatory harassment. (Doc. 29 ¶ 13). Likewise, other than a broad statement of support for nondiscrimination, JSU had no published procedures for reporting and resolving complaints of invidious discrimination or retaliation. (Doc. 29 ¶ 13). The DOE Office of Civil Rights concluded as much following an investigation in 2014. Id.

         According to the MSMB Handbook, authored by Dr. Bodiford, as Director he is “responsible for the total band program.” (Doc. 29 ¶ 16). Accordingly, Dr. Bodiford determines the rules, policies, structure, membership and organization of MSMB. Id. Although Dr. Bodiford relies upon a hierarchical, chain-of-command structure --consisting of instructors, students and staff with delegated authority over particular functions - to run the program, he retains plenary authority to “remove anyone from the program for any reason ….” Id. As the penultimate leader of MSMB, Dr. Bodiford sets the tone and culture of the organization. Id.

         Dr. Bodiford requires that MSMB members follow a “Leadership Model” that emphasizes a “strict chain of command.” (Doc. 29 ¶ 18). Specifically, MSMB is organized as a top-down hierarchy, with new initiates - called “slugs”-occupying the lowest rank in this pecking order. Id. Under the chain-of-command model, a band member is required to submit any complaint or request, including a complaint of discrimination, to his immediate superior, even if the immediate superior is the cause of the complaint. Id. New initiates are indoctrinated into this rigid system on their first day of mandatory band camp, and its importance is impressed upon them continuously. (Doc. 29 ¶ 18). To breach the chain-of-command is regarded as virtually unthinkable. (Doc. 29 ¶ 18).

         Dr. Bodiford delegates to section leads absolute authority to manage and supervise their section members and enforce his policies. (Doc. 29 ¶ 21). This includes authority to convene and supervise practice sessions, to grant or deny requests for leaves of absence, to evaluate performance of individual members and decide their rank and placement within the line; to grade members thus determining whether they receive academic credit for band class; to address complaints of discrimination; to discipline members; to administer the section's respective social media platforms, including the respective section's Facebook page; to assign solo opportunities; to supervise the section during mandatory band camp; and to assign other tasks and duties. Id. Section leads serve as employees and agents of Dr. Bodiford and, by extension, of JSU. Id.

         Mr. Green's Student-on-Student Racial Harassment Allegations

         Mr. Green auditioned for MSMB in August 2011, was awarded two music scholarships from JSU, officially enrolled in JSU for the 2011-112 academic year, and became a member of MSMB assigned to the trumpet section or the “Southerners Trumpet Line” (“STL”). (Doc. 29 ¶ 26). Mr. Green also attended band camp at JSU in August 2011. (Doc. 29 ¶ 28). Dr. Bodiford was present at band camp. Id.

         It was during band camp that Mr. Green, then only 17 years old, was first exposed to the racially hostile climate that permeates STL. (Doc. 29 ¶ 30). Specifically, during this two-week program, section leads and veteran members, all of them white, ridiculed and taunted Mr. Green on the basis of his race and color. Id. This included repeatedly calling him “nigger”, and making racist jokes that publicly humiliated him in front of the overwhelmingly white section members and new recruits. Id. STL members who engaged in this abusive treatment told Jalen it was an STL “tradition” - ostensibly employed to “break” incoming freshman (known in band parlance as “slugs”) of “racial sensitivity.” (Doc. 29 ¶ 32). Several veteran members drove cars affixed with the “rebel flag” at the back. Id.

         Dr. Bodiford was within earshot on several occasions when STL members referred to Jalen in racial epithets. (Doc. 29 ¶ 33). He also was in a position to observe the confederate flag on cars driven by members on campus. Id. He did nothing to stop any of this. Id.

         Mr. Green continued to endure taunts, “jokes” and epithets, including being regularly referred to as “nigger” or “nigga”. (Doc. 29 ¶ 34). As a “slug” at the bottom of the pecking order, in an overwhelmingly white organization, run by white leaders, and headed by a white Director that required him to perform “Dixie” and follow a chain-of-command that effectively silenced him, Mr. Green simply endured this humiliation by focusing on his music. Id. Two other African American “slugs” dropped out after their first year. Id.

         Some examples of statements made by white band members and section leads include, but are not limited to:

a. Routinely referring to African Americans, including Mr. Green, as “nigger” or “nigga”;
b. Routinely comparing African Americans to “monkeys”;
c. Told to “go pick cotton because it doesn't matter what black people think” in response to Mr. Green expressing an opinion;
d. Told Mr. Green that he was only able to play as well as he did “because of his big black lips.”
e. Admonished by section leads if Mr. Green was late for a practice that he was “running on black people ...

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