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VanNahmen v. Dodge City Community College

United States District Court, D. Kansas

December 4, 2018




         This case arises out of Plaintiff Lyle VanNahmen's suspension from Defendant Dodge City Community College ("DCCC"). While enrolled as a student at DCCC, Plaintiff expressed displeasure to Defendant's president regarding a proposal for Defendant to sell land for retail development and demanded the president's resignation. Defendant subsequently suspended Plaintiff for four years. Plaintiff filed suit against Defendant alleging a violation of his procedural due process rights and alleging that Defendant retaliated against him for exercising his First Amendment rights. This matter comes before the Court on Defendant's Motion for Summary Judgment (Doc. 31). For the reasons stated below, the Court denies Defendant's Motion.

         I. Factual and Procedural Background[1]

         Pre-Hearing Events

         Plaintiff was a student enrolled with Defendant in the fall semester of 2016. On December 5, 2016, Plaintiff met with Defendant's president, Dr. Nolte, in Dr. Nolte's office. On December 8, 2016, Plaintiff attempted to meet with Dr. Nolte to present him with a resignation letter to sign. Plaintiff did not actually meet with Dr. Nolte on that day, but instead had the resignation letter delivered to Dr. Nolte by a member of security. On December 12, 2016, Plaintiff received a notice of violation of the Student Code of Behavior and was informed that a hearing would be provided. The notice was dated December 12, 2016, and signed by Stephanie Lanning, the Dean of Students.

         On March 5, 2017, Defendant sent Plaintiff a notice of hearing-Plaintiff considered this the "charging document." Plaintiff knew when he received the charging document that the hearing was going to be about his conduct on December 5 and 8, 2016.[2] Plaintiff knew that the charging document revolved around his encounter with Dr. Nolte on December 5, 2016, and his attempt to talk to Dr. Nolte on December 8, 2016. Plaintiffs first attorney, Andrew Stein, attended a prehearing conference on February 27, 2017.[3] The Hearing was originally set for March 8, 2017.

         On March 6, 2017, Plaintiffs new attorney, Peter Antosh, notified the college that he had been retained by Plaintiff and requested a continuance of the Hearing. Antosh received statements and reports of the witnesses, but did not receive Dr. Nolte's notes. The parties dispute whether Dr. Nolte prepared any notes regarding the events that took place in December 2016.

         A second pre-hearing conference was held on March 24, 2017.[4] DCCC appeared through counsel, Glenn Kerb, Plaintiff appeared through counsel, Peter Antosh, and Beverly Temaat appeared in her capacity as "special judicial officer." At the conference, Defendant informed Plaintiffs counsel that the Hearing would encompass Plaintiffs conduct at his meeting with Dr. Nolte on December 5, 2016, and his attempt to contact Dr. Nolte again on December 8, 2016. Defendant also shared the anticipated testimony of all of its witnesses. Plaintiffs counsel requested that certain witnesses be made available at the Hearing, and all but one of the witnesses identified by Plaintiff appeared at the Hearing.[5] The parties agreed that any appeal, which would normally go to the President, would be assigned to a different administrator.

         Defendant did not allow Plaintiffs attorney to speak at the Hearing, [6] but Plaintiff met with his attorney in advance of the hearing, reviewed witness statements, and prepared questions to ask witnesses.

         Conduct Review Hearing

         Plaintiffs Hearing before the Judicial Hearing Board occurred on April 25, 2017.[7] It appears as though the Judicial Hearing Board[8] consisted of Monica Malley, Jana Holwerta, and Paul Young, however, neither party provides much detail regarding the makeup or workings of the Judicial Hearing Board.[9] During the Hearing, Temaat stated that she was acting as the "Chief Judicial Officer," and presented witnesses to testify to the actions of Plaintiff in the meeting with Dr. Nolte on December 5, 2016, and its effect on Dr. Nolte. Prior to calling witnesses, Temaat stated "we will start calling our witnesses related to a couple of incidents that led to us all being here that we believed were violations of the code of conduct on your part and that's why we put the temporary sanctions in place." Each of the five witnesses called by Temaat read into the record his or her prior written statement(s), and Temaat then had an opportunity to question the witnesses. After Temaat had finished examining each of Defendant's witnesses, Plaintiff had an opportunity to question each witness.

         Temaat's first witness was Stephanie Lanning. Lanning stated that she had spoken with Plaintiff on Monday, December 5, 2016, prior to the meeting between Plaintiff and Dr. Nolte, and that Plaintiff had been asking about whether the college intended to sell land for retail development. Lanning was not present during the meeting between Plaintiff and Dr. Nolte, but instead, learned about the meeting from others. She stated that at approximately 3:00 p.m. on December 5, 2016, during a cabinet meeting, Dr. Nolte told her that he had met with Plaintiff just before their meeting. Lanning recounted that she had seen Plaintiff on Thursday, December 8, 2016, at approximately 8:30 a.m. in student services. According to Lanning, Plaintiff sat down and began writing a letter.[10] Plaintiff then went to Lanning's office and requested that security follow him to witness a signature-Plaintiff declined to tell Lanning whose signature he sought, stating that he did not want her to know so as to keep her out of the situation. The following morning Temaat informed Lanning that Plaintiff had requested Dr. Nolte's resignation. Lanning stated:

On Friday December 9, at 8:00 a.m. 2016, at 8:00 a.m. I was informed by Beverly Temaat, Vice President of Student Affairs, that [Plaintiff] requested the president's resignation immediately for his involvement in selling the college property. At this point, and as the dean of students, I temporarily trespassed [Plaintiff] from camp - campus-wide except for his final exam in A&P1 for behavior misconduct. I gave the letter to Beverly Temaat to give to security to deliver to [Plaintiff].

         Temaat then called Dr. Nolte. Dr. Nolte gave his account of what happened on December 5, 2016, in his meeting with Plaintiff. Dr. Nolte stated that he invited Plaintiff into his office and that Plaintiff entered his office in somewhat friendly manner. Dr. Nolte stated that the conversation changed quickly as Plaintiff asked, "who's stupid idea was the retail development." According to Dr. Nolte, Plaintiff quickly became upset and called the board "old and stupid," and said "if this is your idea you need to resign." Dr. Nolte described it as a quick conversation and said he was concerned about his safety because Plaintiff "got pretty upset." He stated it was "pretty intense" and that he had to "talk [Plaintiff] off the ledge." Dr. Nolte stated that he was concerned about his welfare and talked to individuals in security and considered doing things at his home. Dr. Nolte stated that he viewed the resignation letter drafted by Plaintiff when it was shown to him by Steven Sites. He did not state that he had any contact with Plaintiff after December 5, 2016.

         Steven Sites, Security Coordinator, read his incident report into the record. Sites was not present during the meeting between Plaintiff and Dr. Nolte, but instead learned about it from others. Sites stated that he had contact with Plaintiff on December 8, 2016, and that he gave Dr. Nolte the resignation letter prepared by Plaintiff. Sites stated that he had been asked by Director Thompson and Temaat to deliver Lanning's December 10, 2016, no trespass letter to Plaintiff. During his statement, Temaat interrupted and corrected Sites as to the timing of when Sites was asked to deliver the letter. Sites did not state that Plaintiff had acted inappropriately on December 8, 2016, and on cross stated that Plaintiff had never been rude to him.

         After calling all witnesses on behalf of the college, [11] Temaat stated that she considered the most important part of the hearing to be the part where Plaintiff has an opportunity to tell his side of the story and to ask questions. Plaintiff briefly questioned witnesses, but declined to provide his account of what happened during the December 5, 2016, meeting.

         Post-Hearing Events

         After the Hearing Plaintiff received a letter from Temaat "confirm[ing] in writing the final disposition of the conduct review hearing." Although dated May 2, 2017, it appears as though Plaintiff did not receive this letter until on or about June 6, 2017'.[12] The letter states that Plaintiffs "conduct and behavior on the campus during the end of the fall 2016 semester violated the DCCC Code of Conduct," and imposed sanctions. The sanctions included: (1) a four-year suspension, (2) a prohibition from entering all areas of the DCCC campus during the suspension, and (3) a requirement that Plaintiff obtain, at his own expense, and provide to Defendant an assessment from an approved, licensed counseling professional specific to his conduct during the fall 2016 semester.

         Plaintiff appealed the disposition of his Hearing to Ryan Ausmus, Dean of Workforce Development & Title V. On June 30, 2017, Ausmus affirmed the final disposition. The affirmance stated:

This letter is to notify you in writing that I have reviewed your appeal related to the final disposition and sanctions of the conduct review panel. After careful review and in accordance with Dodge City Community College policy, I uphold the decision (with no revisions) and all sanctions noted in the conduct review panel's final disposition letter.

         The parties dispute whether the Judicial Hearing Board found that Plaintiff violated the Student Code of Conduct and whether the Board imposed the four-year suspension. Defendant cites an affidavit from Temaat and the May 2, 2017, Hearing disposition letter as evidence that the Judicial Hearing Board found that Plaintiff had engaged in the conduct charged and imposed the ultimate sanction. Temaat's affidavit, however, is wholly conclusory on this point, and the Hearing disposition letter does not mention the Judicial Hearing Board, does not come from any member of the Board, and does not carbon-copy any member of the Board. Rather, the letter is signed by Temaat. Plaintiff notes that he never received any communication from any member of the hearing panel and argues that the hearing panel was not independent and had no real authority or discretion. To support his argument, he cites the fact that he was invited to attend a post-hearing mitigation meeting with only Temaat-and not with the members of the Judicial Hearing Board.

         On July 24, 2017, Plaintiff filed the current action alleging violations of his due process and First Amendment rights, and asking that the Court exercise judicial review over DCCC's disciplinary proceedings. Defendant filed a motion to dismiss and the Court dismissed Plaintiffs "judicial review" claim, but found that Plaintiff had adequately stated a claim for violations of his due process and First Amendment rights. This matter comes before the Court on Defendant's Motion for Summary Judgment.

         II. Legal Standard

         Summary judgment is proper if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[13] A fact is "material" when it is essential to the claim, and issues of fact are "genuine" if the proffered evidence permits a reasonable jury to decide the issue in either party's favor.[14] The movant bears the initial burden of proof and must show the lack of evidence on an essential element of the claim.[15] If the movant carries his initial burden, the nonmoving party may not simply rest on its pleading, but must instead "set forth specific facts" that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.[16] These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits- conclusory allegations alone cannot survive a motion for summary judgment.[17] The Court views all evidence and reasonable inferences in the light most favorable to the non-moving party.[18]

         III. Analysis

         A. Subject-matter jurisdiction

         Defendant argues that this Court lacks subject-matter jurisdiction to hear Plaintiffs § 1983 claims alleging violations of the First and Fourteenth Amendments to the U.S. Constitution. Defendant argues that K.S.A. § 60-2101(d) requires individuals to appeal the result of a quasi-judicial hearing, such as the one here, and that a failure to appeal in Kansas state court under K.S.A. § 60-2101(d) results in the hearing decision becoming a "final judgment" entitled to preclusive effect under the doctrine of res judicata. It argues that K.S.A. § 60-2101(d) provides the exclusive avenue for relief, even for § 1983 claims. In sum, Defendant argues that in Kansas plaintiffs may never pursue § 1983 claims in federal court if the state agency provides an arguably quasi-judicial proceeding prior to a deprivation.

         Defendant's argument that K.S.A. § 60-2101(d) provides the "exclusive" avenue for relief fails to address, let alone distinguish, binding U.S. Supreme Court and Tenth Circuit precedent and has no merit.[19] Although plaintiffs may pursue § 1983 claims in state court, K.S.A. § 60- 2101(d)-a procedural statute identifying when various state courts have jurisdiction to hear appeals-does not preclude a plaintiff from bringing such an action in federal court.

         Likewise, the Court disagrees that Plaintiffs failure to appeal the hearing decision to Kansas state court deprives this Court of jurisdiction under principles of res judicata. Under Kansas law, [20] res judicata requires "(1) the same claim; (2) the same parties; (3) claims that were or could have been raised; and (4) a final judgment on the merits."[21] Defendant does not argue that Plaintiff previously pursued his claims in state court. Instead, it argues that Plaintiff could have and should have appealed his suspension in state court, that he could have and should have pursued his current arguments in state court, and that his failure to do so renders the hearing panel's decision a "final judgment" entitled to preclusive effect. While the Court considers this legal argument without merit, [22] even if it had merit under some circumstances, Defendant has not shown ...

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