United States District Court, D. Kansas
MEMORANDUM AND ORDER
J. THOMAS MARTEN, Chief District Judge.
In this case, plaintiff Stephen Cunningham alleges that defendant Wichita State University (WSU) violated the Americans with Disabilities Act and Section 504 of the Rehabilitation Act by failing to accommodate his disability. The case comes to the court on WSU's Motion to Dismiss (Dkt. 7). Because Cunningham fails to state plausible claims, the court grants the motion.
I. Factual Background
Cunningham was a student in the physician's assistant (PA) program at WSU. On January 6, 2011-the day before he interviewed for the PA program-Cunningham was diagnosed with type-1 diabetes. He also suffers from attention deficit disorder (ADD). Cunningham disclosed his diabetes and ADD diagnoses on WSU's required medical forms during orientation. Cunningham does not allege that he requested accommodations for these conditions.
On October 3, 2011, Cunningham failed a pharmacology exam. He attributed his poor performance to a hypoglycemic episode. Cunningham was allowed to retake the pharmacology exam in the instructional services lab on December 1, 2011. Other than requesting to retake the exam, Cunningham does not allege that he requested special accommodation for taking the exam. He passed the retest and continued his education in the PA program.
In June 2012, Cunningham failed a neurology exam, which he attributed to high blood sugar due to a faulty infusion site preventing proper insulin delivery. The WSU faculty decided to allow Cunningham to remain in the PA program with the stipulation that he retake and pass the neurology exam. Once again, Cunningham does not allege that he requested any accommodations for retaking the exam. Cunningham took the makeup exam in a professor's private office. He failed the exam. WSU dismissed him from the PA program on July 20, 2012.
Cunningham appealed his dismissal to the PA faculty Academic and Progressions Committee (APC) on July 28, 2012, arguing that the professor's office in which he retested was located in a busy hallway. Cunningham argued that because he was unaware of the testing location, he did not contact WSU's Office of Disability Services to request reasonable accommodations prior to the retest. The APC held Cunningham's appeal on August 14, 2012. In a hand delivered letter dated August 17, 2012, the APC notified Cunningham that it had upheld his dismissal. Cunningham appealed the APC's decision to Dr. Abu Masud-the Interim Dean of WSU's Graduate School-and WSU's Graduate Council. After a hearing held on September 20, 2012, WSU's Graduate Council upheld the APC's decision to dismiss Cunningham.
Cunningham filed his complaint in this court federal court on February 18, 2014. WSU now moves to dismiss his claims for (1) lack of subject matter jurisdiction due to sovereign immunity, (2) failure to state a claim on which relief may be granted and (3) res judicata. The court begins by addressing WSU's challenge under Federal Rule of Civil Procedure 12(b)(6).
II. Standard of Review: Motion to Dismiss for Failure to State a Claim
A pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). A complaint must contain sufficient factual matter to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678. All well-pleaded factual allegations in the complaint are accepted as true and viewed in the light most favorable to the plaintiff. Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009).
A. ADA Claim
Cunningham seeks damages and injunctive relief against WSU under Title II of the Americans with Disabilities Act of 1990. Title II applies to public entities and provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. Cunningham alleges that WSU violated Title II by denying him a reasonable accommodation for his neurology retest.
To state a claim under Title II, a plaintiff must allege that (1) he is a qualified individual with a disability, (2) who was excluded from participation in or denied the benefits of a public entity's services, programs or activities, and (3) such exclusion, denial of benefits, or discrimination was by reason of a disability. See 42 U.S.C. § 12132; see ...