Ryan A. Johnson vs. Arkansas State University by Ken Nixon

Ryan Anthony Johnson vs. Arkansas State University A Complaint in a Case of Racial Discrimination

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTICT OF ARKANSAS JONESBORO DIVISION

RYAN ANTHONY JOHNSON 101 Mark Street Jonesboro, AR 72401

- Plaintiff, -against- ARKANSAS STATE UNIVERSITY, JONESBORO P.O. Box 600 State University, AR 72467 CHARLES L. WELCH, AS PRESIDENT ARKANSAS STATE UNIVERSITY SYSTEM P.O. Box 600 State University, AR 72467 TIM HUDSON, AS CHANCELLOR (FORMER) ARKANSAS STATE UNIVERSITY, JONESBORO P.O. Box 600 State University, AR 72467 LYNITA COOKSEY, AS PROVOST AND VICE CHANCELLOR, ACADEMIC AFFAIRS & RESEARCH ARKANSAS STATE UNIVERSITY, JONESBORO P.O. Box 600 State University, AR 72467

PLAINTIFF COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, BREACH OF CONTRACT, 42 U.S.C. ยง 1981 & RELATED CLAIMS. JURY DEMANDED CASE NO: ________________________

WILLIAM R. STRIPLING, AS VICE CHANCELLOR FOR STUDENT AFFAIRS ARKANSAS STATE UNIVERSITY, JONESBORO, P.O. Box 600 State University, AR 72467 RICHARD BURNS, INDIVIDUALLLY, AND AS A PROFESSOR ARKANSAS STATE UNIVERSITY, JONESBORO P.O. Box 600 State University, AR 72467 - Defendants.

PLAINTIFF COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES FOR VIOLATIONS OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION, 42 U.S.C. ยง 1981, 42 U.S.C. ยง 1982, 42 U.S.C. ยง 1983, 42 U.S.C. ยง 1985, & 42 U.S.C. ยง 1986 BREACH OF CONTRACT & RELATED CLAIMS.

COMES NOW the plaintiff, Ryan Anthony Johnson, as and for a Complaint against the defendants above named, states, alleges, and avers as follows: PRELIMINARY STATEMENT

Plaintiff, Ryan Anthony Johnson, is an African-American, and now expelled,

student at formerly enrolled at Arkansas State University, Jonesboro. Plaintiff was wrongfully expelled by defendants because of his race, racial animus, and for his political beliefs, and his refusal to engage the defendants in a disciplinary process that violated his rights and privileges as afforded by the First Amendment to the U.S. Constitution and the Due Process Clause of the 14th Amendment to the U.S. Constitution. Defendants have intentionally, wantonly and recklessly caused severe academic, financial and emotional damage to the plaintiff by expelling him from Arkansas State University and barring him from any future enrollment at the institution or access to the institutionâ&#x20AC;&#x2122;s facilities, programs or staff, in perpetuity. Plaintiff seeks redress for the harms caused by the defendants, subjecting plaintiff to permanent expulsion, or what amounts to capital punishment in academia, for allegations of improper etiquette at a guest speaker event, eating free and publicly offered food, and debating in a classroom.

This is a civil action to recover damages for the deprivation of plaintiffâ&#x20AC;&#x2122;s rights or

privileges as a citizen of the United States caused by the defendants and because plaintiff chose to exercise rights afforded him under federal law and under the laws of the State of Arkansas. Plaintiff seeks compensatory damages, joint and severally, from all defendants in the amount of $4.8

million (Four-Million-Eight-Hundred-Thousand-Dollars) and punitive damages from defendant Richard Burns in an amount to be determined at trial.

JURISDICTION AND VENUE 3.

This Court has subject matter jurisdiction over this action pursuant to (i) 28 U.S.C.

§ 1331, which confers original jurisdiction upon this Court for actions arising under the laws of

the United States; and (ii) pursuant to 28 U.S.C. §§ 1343 and 1343, which confer original jurisdiction upon this Court in a civil action to recover damages or to secure equitable relief under any Act of Congress providing for the protection of civil rights of American citizens; and (iii) under the Declaratory Judgment Statute, 28 U.S.C. § 2201. 4.

Venue is proper in this Court pursuant to 28 U.S.C. §§ 1391(b)(1) and (c), in that

the defendants maintains offices, conducts business, and resides in this judicial district, and a substantial portion of the acts that make up the basis of the Complaint occurred within this judicial district. DEMAND FOR TRIAL BY JURY 5.

Pursuant to Rule 38(b) FRCP, the plaintiff hereby demands a jury of all issues so

triable. NO IMMUNITY UNDER STATE LAW 6.

Plaintiff avers that the wrongful and illegal actions and inactions and omissions of

defendants complained of herein were practiced with actual malice and reckless disregard towards plaintiff and his legal rights and property interests, and were willful and constituted

malicious, intentional, willful, outrageous, reckless and flagrant misconduct, so as to deprive the defendants of any immunity under Arkansas State law. Plaintiff further avers that any State law, ordinance, proclamation, regulation, statute, etc., pursuant to which defendants, claim they acted, is unconstitutional, and the defendants’ conduct pursuant to any State law, ordinance, proclamation, regulation, statute, etc., which violated plaintiff’s federally guaranteed rights cannot be immunized by State law.

NOTICE OF CLAIMS & EXHAUSTION OF ADMINISTRATIVE REMEDIES 7.

Plaintiff, at all times herein, have satisfied all requirements and conditions

precedent to this lawsuit. 8.

Furthermore, where such requirements may not have been met, plaintiff aver that

such requirements are unconstitutional and are promulgated in violation of the Due Process and Equal Protection Clauses of the 14th Amendment of the United States Constitution and the facts and circumstances from which plaintiffs’ claim arise have constituted a barrier prohibiting plaintiff from satisfying any mandated law, regulation or ordinance regarding a condition precedent to this lawsuit. PARTIES

Plaintiff, at all times herein, is a U.S. citizen, a resident of the City of Jonesboro,

County of Craighead, State of Arkansas.

10.

Plaintiff is an African-American male, over the age of 18, and a former student of

Arkansas State University at Jonesboro.

11.

At the time of first matriculation at defendant Arkansas State University, Plaintiff

had obtained and earned a Bachelor of Science Degree and was attempting to complete a graduate/post secondary degree.

12.

Defendant Arkansas State University at Jonesboro is a (hereinafter â&#x20AC;&#x153;ASUâ&#x20AC;&#x153;) state

chartered and state funded institution of higher education of the State of Arkansas, and a regional campus of the Arkansas State University System.

13.

Defendant ASU is located in the City of Jonesboro, County of Craighead, State of

Arkansas.

14.

Defendant Charles L. Welch, is the President of the Arkansas State University

System and is responsible for the policies and practices of defendant ASU.

15.

Defendant Tim Hudson, is the former Chancellor of defendant ASU, acting as chief

administrative officer of defendant ASU at the time plaintiff matriculated at ASU.

16.

Defendant Lynita Cooksey is the Provost and Vice Chancellor for Academic Affairs

and Research at defendant ASU.

17.

Upon information and belief, defendant Lynita Cooksey is also the acting

Chancellor at defendant ASU, replacing former ASU Chancellor defendant Tim Hudson on or about August 2016.

18.

Defendant William R. Stripley is the Vice Chancellor For Student Affairs of

defendant ASU, with oversight responsibiities of student affairs, including student disciplinary hearings.

19.

Defendant Richard Burns, is being sued in his individual capacity as well as his

capacity as employee/professor at defendant ASU. 20.

Defendant Richard Burns is a former instructor of the plaintiff. STATEMENT OF RELEVANT FACTS

21.

Plaintiff first enrolled at defendant ASU for the Spring semester of the 2010 - 11

academic year and remained enrolled, except for his voluntary time off for financial reasons, until he was expelled from defendant ASU on May 2, 2014.

22.

Plaintiff first enrollment was in a graduate program leading to a Masterâ&#x20AC;&#x2122;s Degree

in Education, matriculating on a part time basis.

23.

Plaintiff, as a matriculating student at defendant ASU, agreed to be bound by

university rules and regulations, including promulgated rules governing student conduct.

24.

Plaintiff was properly enrolled and attended defendant ASU from the Spring

Semester of 2011 and up to the Spring Semester of 2014, without any allegations of violations of defendant ASUâ&#x20AC;&#x2122;s Student Code of Conduct.

25.

On February 11, 2014, during the Spring Semester of the 2013-14 academic year,

plaintiff was attending a public event on the campus of defendant ASU, where plaintiff sought to

speak directly with the guest speaker. Plaintiff was informed that he could not speak directly with the guest speaker and left the event without engaging in any misconduct. 26.

On February 19, 2014, during the Spring Semester of the 2013-14 academic year,

plaintiff was attending a public function at the Multi-Cultural Center on the campus of defendant ASU, where free food was publicly offered, on display, and made available to attendees on a selfserve basis. Plaintff arrived at the scheduled function after the main event, prepared a plate of food, and was reprimanded for being in attendance at the event for the sole purpose of obtaining the free food. University police detained plaintiff, verified that plaintiff was a student and released plaintiff. Plaintiff was not allowed to keep the plate of food that he prepared for himself. 27.

On April 24, 2014, during the Spring Semester of the 2013-14, plaintiff enrolled in

undergraduate course taught by defendant Richard Burns. The course was titled â&#x20AC;&#x153;AfricanAmerican Folkloreâ&#x20AC;? and provided for vigorous debate about African-American history and traditions. Plaintiff debated, objected to, and disagreed with academic positions taken by the professor and other students, all the while maintain proper decorum.

28.

On April 25, 2014, plaintiff was informed by e-mail that he faced disciplinary

charges at defendant ASU arising out his conduct on February 19, 2014 and April 24, 2014.

29.

On April 25, 2014, plaintiff was informed by e-mail that he should have no contact

with any faculty or staff at defendant ASU, except for a Vice Chancellor or a Assistant Dean of Students, until after a meeting that was scheduled for April 29, 2014, all because of his conduct on February 19, 2014 and April 24, 2014.

30.

On April 25, 2014, plaintiff was informed by e-mail that he would be subject to

arrest if he appeared on campus because of his conduct on February 19, 2014 and April 2, 2014.

31.

On April 25, 2014, plaintiff was informed by e-mail that a meeting was scheduled

with him for April 29, 2014 to address the charges lodged against him because of his conduct on February 19, 2014 and April 24, 2014.

32.

April 25, 2014 was on a Friday and April 29, 2014 was the following Tuesday.

33.

On or about April 26, 2014, plaintiff learned of the university actions of April 25,

2014 and sought to inform two of his professors, by e-mail, that he could not complete pending class assignments until the disciplinary matter was concluded.

34.

On Monday April 28, 2014 plaintiff sought an adjournment of the April 29, 2014

meeting to obtain legal counsel and gather evidence.

35.

Plaintiff request to delay the April 29, 2014 meeting was denied and he was

informed that he could not have legal counsel or an advisor or an advocate attend the April 29, 2014 meeting scheduled by defendant ASU.

36.

Plaintiff did not attend the April 29, 2014 meeting.

37.

Defendant scheduled, for May 2, 2014, an expulsion hearing to determine

whether or not plaintiff will continue as a student or be expelled and permanently barred from defendant ASU. Plaintiff was noticed about the May 2, 2014 expulsion hearing on April 30, 2014 by e-mail.

38.

As of May 2, 2014, in addition to the original charges of violating codes of

conduct, plaintiff was facing new charges of contacting university faculty and staff on or about April 26, 2014.

39.

As of May 2, 2014, in addition to the original charges of violating codes of

conduct and the new charges of contacting university faculty and staff on or about April 26, 2014, plaintiff faced an additional new charge of misconduct for failing to attend the scheduled April 29, 2014 meeting.

40.

Citing, lack of notice and the defendants prohibition against plaintiff being

represented by legal counsel at such hearing, plaintiff did not attend the May 2, 2014 expulsion hearing.

41.

On May 2, 2014 defendants expelled plaintiff from defendant ASU, terminating

his matriculation, permanently barring him from campus, participating in any future univerity activity or any future enrollment.

42.

The May 2, 2014 expulsion decision was affirmed by defendant Tim Hudson.

43.

Plaintiff has no adequate remedy at law for the intentional, malicious, reckless,

and grossly negligent conduct of defendants complained of herein.

COUNT I AS AND FOR A FIRST CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR THE DEPRIVATION OF PLAINTIFF’S CIVIL RIGHTS AS GUARANTEED BY FIRST AMENDMENT OF THE UNITED STATES CONSTITUTION

44.

VIOLATION OF RIGHT TO FREE SPEECH Plaintiff repeats and re-alleges each of the above paragraphs as if fully set forth

herewith. 45.

Plaintiff, acting within well established constitutional rights, on April 24, 2014,

while participating in academic debate, defendants imposed a time, place and manner restriction on plaintiff’s speech, causing an infringment of his rights based on the content of plaintiff’s speech. 46.

Defendants, acting jointly and severally, conspired to and did adversely impact

plaintiff’s enrollment, academic record, employment, employment opportunities, promotional opportunities, and past and future wages because of plaintiff’s race and in retaliation for plaintiff exercising his rights under federal and state constitutional laws, differently, disparately and wrongfully from their treatment of similarly situated white students of defendant ASU. 47.

Defendants have and did deprived plaintiff of his rights to speak freely, to make

and enforce contracts and to the full and equal benefit of defendants’ rules, regulations, laws and proceedings for the matriculation of students, administrative proceeding, grievance

procedures, and security of plaintiff’s matriculation in violation of the First Amendment of the U.S. Constitution. 48.

Defendants knew or should have known that their conduct violated plaintiff’s

clearly established constitutional right to free speech and be free of disparate treatment because of her race. 49.

Defendants acted with intent to violate plaintiff’s clearly established rights

afforded under the First Amendments to the United States Constitution, acting in concert, and under color of law. 50.

Defendants, acting under color of law, did knowingly, intentionally, maliciously,

recklessly and wantonly deprive plaintiff of his right to free speech and to be free of disparate treatment because of his race. 51.

As of direct result of the foregoing deprivation plaintiff has suffered severe

injuries, loss past and future wages, other actual damages, along with attorney fees and costs in amount totaling $4,800,000 (Four-Million-Eight-Hundred-Thousand Dollars). COUNT II AS AND FOR A SECOND CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR THE DEPRIVATION OF PLAINTIFF’S CIVIL RIGHTS AS GUARANTEED BY DUE PROCESS CLAUSE OF THE 14th AMENDMENT OF THE UNITED STATES CONSTITUTION VIOLATION OF DUE PROCESS

52.

Plaintiff repeats and re-alleges each of the above paragraphs as if fully set forth

herewith. 53.

Plaintiff, acting within well established constitutional rights, on April 29, 2014,

plaintiff refused to participate in or engage defendants in an adminstrative process that did not afford him adequate notice, benefit of legal counsel or clearly defined charges or allegations against him. 54.

Defendants, acting jointly and severally, conspired to and did adversely impact

Defendants have and did deprived plaintiff of his right to due process, to make

and enforce contracts and to the full and equal benefit of defendants’ rules, regulations, laws and proceedings for the matriculation of students, administrative proceeding, grievance procedures, and security of plaintiff’s matriculation in violation of the Due Process Clause of the 14th Amendment of the U.S. Constitution. 56.

Defendants knew or should have known that their conduct violated plaintiff’s

clearly established constitutional right to due process and be free of disparate treatment because of his race.

57.

Defendants acted with intent to violate plaintiff’s clearly established rights

afforded under the Due Process Clause of the 14th Amendment to the United States Constitution, acting in concert, and under color of law. 58.

Defendants, acting under color of law, did knowingly, intentionally, maliciously,

recklessly and wantonly deprive plaintiff of his right to due process and to be free of disparate treatment because of his race. 59.

As of direct result of the foregoing deprivation plaintiff has suffered severe

injuries, loss past and future wages, other actual damages, along with attorney fees and costs in amount totaling $4,800,000 (Four-Million-Eight-Hundred-Thousand Dollars).

COUNT III AS AND FOR A THIRD CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR THE DEPRIVATION OF PLAINTIFF’S CIVIL RIGHTS AS GUARANTEED BY 42 U.S.C. § 1981 RACE DISCRIMINATION 60.

Plaintiff repeats and re-alleges each of the above paragraphs as if fully set forth

herewith. 61.

Defendants, acting jointly and severally, conspired to and did adversely impact

plaintiff’s matriculation, academic record, employment, employment opportunities, promotional opportunities, and past and future wages because of plaintiff’s race and in retaliation for plaintiff exercising his rights under federal and state constitutional laws, differently, disparately and wrongfully from their treatment of similarly situated white students of defendant ASU.

62.

Defendants have and did deprive plaintiff of his rights to make and enforce

contracts and to the full and equal benefit of defendants’ rules, regulations, laws and proceedings for the enrollment, discipline, administrative proceeding, grievance procedures, and security of plaintiff’s status as student because of plaintiff’s race in violation of 42 U.S.C. §1981. 63.

Defendants knew or should have known that their conduct violated plaintiff’s

clearly established constitutional rights and be free of disparate treatment because of his race. 64.

Defendants acted with intent to violate plaintiff’s clearly established rights

afforded under the First and Fourteen Amendments to the United States Constitution, acting in concert and under color of law. 65.

Defendants, acting under color of law, did knowingly, intentionally, maliciously,

recklessly and wantonly deprive plaintiff of his right to be free racial animus and disparate treatment because of his race. 66.

As of direct result of the foregoing deprivation plaintiff has suffered severe

injuries, loss past and future wages, other actual damages, along with attorney fees and costs in amount totaling $4,800,000 (Four-Million-Eight-Hundred-Thousand Dollars).

COUNT IV AS AND FOR A FOURTH CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR THE DEPRIVATION OF PLAINTIFF’S CIVIL RIGHTS AS GUARANTEED BY 42 U.S.C. § 1982

67.

Plaintiff repeats and re-alleges each of the above paragraphs as if fully set forth

herewith. 68.

Defendants, acting jointly and severally, conspired to and did adversely impact

Defendants have and did deprived plaintiff of his rights to make and enforce

contracts and to the full and equal benefit of defendants’ rules, regulations, and laws and proceedings for the security of plaintiff’s matriculation at defendant ASU because of plaintiff’s race and in violation of 42 U.S.C. §1982. 70.

Defendants knew or should have known that their intentional conduct violated

plaintiff’s clearly established constitutional rights to make and enforce contracts. 71.

Defendants acted with intent to violate plaintiff’s clearly established First and

Fourteen Amendment rights, acting in concert and under color of law. 72.

Defendants, acting jointly and severally, conspired to and did adversely impact

plaintiff’s enrollmen, academic recordm, employment, employment opportunities, promotional opportunities, and past and future wages because of plaintiff’s race and in retaliation for plaintiff exercising his rights under federal and state laws all in violation of 42 U.S.C. §1982.

73.

As of direct result of the foregoing deprivation plaintiff has suffered severe

injuries, loss past and future wages, other actual damages, along with attorney fees and costs in amount totaling $4,800,000 (Four-Million-Eight-Hundred-Thousand Dollars).

COUNT V AS AND FOR A FIFTH CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR THE DEPRIVATION OF PLAINTIFF’S CIVIL RIGHTS AS GUARANTEED BY 42 U.S.C. § 1983 74.

Plaintiff repeats and re-alleges each of the above paragraphs as if fully set forth

herewith. 75.

Defendants, acting jointly and severally, conspired to and did adversely impact

plaintiff’s employment, employment opportunities, promotional opportunities, and past and future wages because of plaintiff’s race and in retaliation for plaintiff exercising his rights under federal and state constitutional laws, all in violation of 42 U.S.C. § 1983. 76.

As of direct result of the foregoing deprivation plaintiff has suffered severe

injuries, loss past and future wages, other actual damages, along with attorney fees and costs in amount totaling $4,800,000 (Four-Million-Eight-Hundred-Thousand Dollars).

COUNT VI AS AND FOR A SIXTH CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR THE DEPRIVATION OF PLAINTIFF’S CIVIL RIGHTS AS GUARANTEED BY 42 U.S.C. § 1985

77.

Plaintiff repeats and re-alleges each of the above paragraphs as if fully set forth

herewith. 78.

Defendants, acting jointly and severally, knowing and intentionally, agreed and

conspired to adversely impact plaintiffâ&#x20AC;&#x2122;s enrollment, academic record, professional affiliations, employment, employment opportunities, promotional opportunities, and past and future wages because of plaintiffâ&#x20AC;&#x2122;s race and while undertaking retaliatory actions against plaintiff because he exercised his rights under federal and state constitutional laws, all with an objective to deprive plaintiff his constitutional rights. 79.

At all times herein, private individuals, or a non-government agency that are not

state officials, did act under color of state law when it agreed to and then engaged in a conspiracy with defendants to deprive plaintiff of his right to equal protection of the law and other rights afforded under the constitution of the United States when defendants wrongfully, maliciously and intentionally deprived plaintiff of his right to free speech and right to due process in comparison to similarly situated white students, white employees and white staff of defendant ASU. 80.

Defendants have an animus, dislike, hatred and bias against plaintiff and all

African-Americans, with a history of preference for white students, faculty and staff. 81.

Defendants knew, or should have known, that plaintiff is African-American and

have spoken publicly on behalf of the interests, rights and issues of concern to African-Americans.

82.

Defendants did harass, suspend and subsequently expell plaintiff and because of

their reckless, malicious and wonton conspiracy caused irreparable financial, emotional and psychological harm as well as loss of reputation in the local community. 83.

Defendants have and did deprived plaintiff of his rights to make and enforce

contracts and to the full and equal benefit of the equal protect of the laws and to equal privilege and immunities under the laws because of plaintiff’s race in violation of 42 U.S.C. §1985. 84.

As of direct result of the foregoing deprivation plaintiff has suffered severe

injuries, loss past and future wages, other actual damages, along with attorney fees and costs in amount totaling $4,800,000 (Four-Million-Eight-Hundred-Thousand Dollars). COUNT VII AS AND FOR A SEVENTH CAUSE OF ACTION AGAINST FOR THE DEPRIVATION OF PLAINTIFF’S CIVIL RIGHTS AS GUARANTEED BY 42 U.S.C. § 1986 85.

Plaintiff repeats and re-alleges each of the above paragraphs as if fully set forth

herewith. 86.

The defendants had the actual knowledge that the wrongs complained of herein

by the plaintiff were about to happen and did actually happen and had the power and authority to prevent and stop such wrongs, or aid in the preventing or stopping such wrongs, but intentionally or neglected or refused to do so. 87.

Defendants, wantonly, maliciously, recklessly and with invidious racial animus,

acting jointly and severally, conspired to and did adversely impact plaintiff’s enrollment,

employment, employment opportunities, promotional opportunities, and past and future wages because of plaintiff’s race and in retaliation for plaintiff exercising his rights under federal and state constitutional laws. 88.

Defendants have and did deprived plaintiff of his rights to make and enforce

contracts and to the full and equal benefit of defendants’ rules, regulations, and laws and proceedings for the hire and security of plaintiff’s employment because of plaintiff’s race and in violation of 42 U.S.C. § §1981, 1982 and 1985. 89.

As of direct result of the foregoing deprivation plaintiff has suffered severe

injuries, loss past and future wages, other actual damages, along with attorney fees and costs in amount totaling $4,800,000 (Four-Million-Eight-Hundred-Thousand Dollars).

90.

COUNT VIII AS AND FOR A EIGHTH CAUSE OF ACTION AGAINST ALL DEFENDANTS FOR BREACH OF CONTRACT Plaintiff repeats and re-alleges each of the above paragraphs as if fully set forth

herewith. 91.

Plaintiff entered into a contract with defendants for educational services.

92.

Defendants’ breached such contract upon the expulsion of plaintiff from

defendant ASU, without just cause, without notice and in reckless disregard for the terms and conditions of the contract entered into with plaintiff.

93.

As a proximate cause of defendantsâ&#x20AC;&#x2122; breach, plaintiff has suffered and will

continue to suffer severe damages. 94.

As of direct result of the foregoing deprivation plaintiff has suffered severe

injuries, loss past and future wages, other actual damages, along with attorney fees and costs in amount totaling $4,800,000 (Four-Million-Eight-Hundred-Thousand Dollars).

PRAYER FOR RELIEF WHEREFORE, plaintiff demands judgment against the defendants as follows: (a) that this Court assume jurisdiction of this matter; (b) issue and Order finding defendants in violation of all allegations in each and ever Count of this Complaint; (c) issue a declaratory judgment finding defendantsâ&#x20AC;&#x2122; expulsion of plaintiff from Arkansas State University was illegal and unconstitutional; (d) issue an Order requiring defendants to remove any and all adverse letters, notes, or memos from plaintiffâ&#x20AC;&#x2122;s student records or files under their custody and control; (e) award plaintiff compensatory damages in the amount of $4,800,000 (FourMillion-Eight-Hundred-Thousant-Dollars); (f) hold all defendants joint and severally liable for compensatory damages awarded to plaintiff, and in so lido for such damages; (g) award plaintiff punitive damages against defendant Richard Burns; (h) grant an Order restraining defendants from any retaliation in any form against plaintiff for participation in this litigation; (i) retain jurisdiction of this action until defendants have fully complied with all Orders of the Court; (j) appoint counsel to represent class action plaintiffs;

(k) award plaintiff attorney fees and costs; (l) make further Orders as the Court deem just, necessary and proper. Dated: April 27, 2017 Jonesboro, Arkansas

Respectfully Submitted, /s/ Ryan Anthony Johnson __________________________________ Ryan Anthony Johnson Plaintiff, Pro Se 101 Mark Street Jonesboro, AR 72401-8813 (870) 275-6966 E-Mail: rjohnsonblack@gmail.com

Case: 3:17-cv-00093-JM-BD As of:06/02/2017 12:44 PM CDT 1 of 4 BD,CASREF,JURY

U.S. District Court Eastern District of Arkansas (Jonesboro) CIVIL DOCKET FOR CASE #: 3:17−cv−00093−JM−BD Johnson et al v. Arkansas State University et al Assigned to: Judge James M. Moody Jr. Referred to: Magistrate Judge Beth Deere Cause: 42:1983 Civil Rights Act Plaintiff Ryan Anthony Johnson

Date Filed: 04/27/2017 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question represented by Ryan Anthony Johnson 101 Mark Street Jonesboro, AR 72401 870−275−6966 PRO SE

V. Defendant Arkansas State University

represented by Jeffrey W. Puryear Womack Phelps Puryear Mayfield & McNeil, P.A. Post Office Box 3077 Jonesboro, AR 72403−3077 870−932−0900 Fax: 870−932−2553 Email: jpuryear@wpmfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Mark Alan Mayfield Womack Phelps Puryear Mayfield & McNeil, P.A. Post Office Box 3077 Jonesboro, AR 72403−3077 870−932−0900 Fax: 870−932−2553 Email: mmayfield@wpmfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED Ryan M. Wilson Womack Phelps Puryear Mayfield & McNeil, P.A. Post Office Box 3077 Jonesboro, AR 72403−3077 870−932−0900 Fax: 870−932−2553 Email: rwilson@wpmfirm.com ATTORNEY TO BE NOTICED

Defendant Charles L Welch President, Arkansas State University System

represented by Jeffrey W. Puryear (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Mark Alan Mayfield (See above for address) LEAD ATTORNEY

Case: 3:17-cv-00093-JM-BD As of:06/02/2017 12:44 PM CDT 2 of 4 ATTORNEY TO BE NOTICED Ryan M. Wilson (See above for address) ATTORNEY TO BE NOTICED Defendant Tim Hudson Former Chancellor, Arkansas State University, Jonesboro

represented by Jeffrey W. Puryear (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Mark Alan Mayfield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Ryan M. Wilson (See above for address) ATTORNEY TO BE NOTICED

Defendant Lynita Cooksey Provost and Vice Chancellor, Academic Affairs & Research, Arkansas State University, Jonesboro

Defendant William R Stripling Vice Chancellor for Student Affairs, Arkansas State University, Jonesboro

Defendant Richard Burns Individually and as a Professor, Arkansas State University, Jonesboro

represented by Jeffrey W. Puryear (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED Mark Alan Mayfield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-00093-JM-BD As of:06/02/2017 12:44 PM CDT 3 of 4 Ryan M. Wilson (See above for address) ATTORNEY TO BE NOTICED Date Filed

06/01/2017

15 SUMMONS Returned Executed. Tim Hudson served on 5/15/2017. (scw) (Entered: 06/02/2017)

06/01/2017

14 SUMMONS Returned Executed. Richard Burns served on 5/17/2017. (scw) (Entered: 06/02/2017)

06/01/2017

13 SUMMONS Returned Executed. William R Stripling served on 5/16/2017. (scw) (Entered: 06/02/2017)

06/01/2017

12 SUMMONS Returned Executed. Lynita Cooksey served on 5/17/2017. (scw) (Entered: 06/02/2017)

06/01/2017

11 SUMMONS Returned Executed. Charles L Welch served on 5/17/2017. (scw) (Entered: 06/02/2017)

06/01/2017

Docket Text

NOTICE OF DOCKET CORRECTION re: 8 and 9 Notices of Appearance on behalf of Defendants. CORRECTION: The docket text for docket entry 8 was modified to correct the description of the document filed as "Notice of Appearance by Jeffrey W. Puryear." The docket text for docket entry 9 was modified to correct the description of the document filed as "Notice of Appearance by Mark Alan Mayfield." (thd) (Entered: 06/01/2017) 10 NOTICE of Appearance by Ryan M. Wilson on behalf of All Defendants (Wilson, Ryan) (Entered: 06/01/2017)

06/01/2017

9 NOTICE of Appearance by Mark Alan Mayfield on behalf of All Defendants (Wilson, Ryan) (Docket text modified on 6/1/2017 to correct the description of the document filed.) (thd). (Entered: 06/01/2017)

06/01/2017

8 NOTICE of Appearance by Jeffrey W. Puryear on behalf of All Defendants (Wilson, Ryan) (Docket text modified on 6/1/2017 to correct the description of the document filed.)(thd). (Entered: 06/01/2017)

06/01/2017

7 BRIEF IN SUPPORT re 6 Motion to Dismiss for Failure to State a Claim filed by All Defendants. (Wilson, Ryan) (Entered: 06/01/2017)

06/01/2017

6 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by All Defendants (Wilson, Ryan) (Entered: 06/01/2017)

05/05/2017

Summons Issued as to Richard Burns, Lynita Cooksey, Tim Hudson, William R Stripling, Charles L Welch. Forwarded to the Office of the U.S. Marshal for service. (jak) (Entered: 05/05/2017)

05/05/2017

5 ORDER granting 1 Motion to proceed in forma pauperis. The Clerk of the Court is directed to prepare summonses for the Defendants, and the U.S. Marshal is directed to serve the summonses, copies of the complaint, and this Order on Charles L. Welch, Lynita Cooksey, William R. Stripling, and Richard Burns at Arkansas State University, 2105 Aggie Road, Jonesboro, Arkansas 72401; and on Tim Hudson, at Austin Peay State University, 601 College Street, Clarksville, Tennessee 37044, without prepayment of fees and costs. Mr. Johnson's 3 motion for appointment of counsel is denied. Signed by Magistrate Judge Beth Deere on 5/5/2017. (jak) (Entered: 05/05/2017)

05/01/2017

4 ORDER REFERRING CASE to Magistrate Judge Beth Deere for consideration and determination of all preâ&#x2C6;&#x2019;trial matters and for recommended disposition for the resolution of any dispositive matters. Signed by Judge James M. Moody Jr. on 5/1/2017. (jak) (Entered: 05/01/2017)

04/27/2017

3 MOTION to Appoint Counsel by Ryan Anthony Johnson. (jak) (Entered: 04/27/2017)

04/27/2017

2 COMPLAINT with Jury Demand against All Defendants, filed by Ryan Anthony Johnson. (Attachments: # 1 Civil Cover Sheet)(jak) (Entered: 04/27/2017)

Case: 3:17-cv-00093-JM-BD As of:06/02/2017 12:44 PM CDT 4 of 4 04/27/2017

1 MOTION for Leave to Proceed in forma pauperis by Ryan Anthony Johnson. (jak) (Entered: 04/27/2017)

Case 3:17-cv-00093-JM-BD Document 6 Filed 06/01/17 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION

RYAN ANTHONY JOHNSON v.

PLAINTIFF

Case No. 3:17-cv-00093 (JM/BD)

ARKANSAS STATE UNIVERSITY, JONESBORO; CHARLES L. WELCH, as President of Arkansas State University System; TIM HUDSON, as Chancellor (Former) Arkansas State University, Jonesboro; LYNITA COOKSEY, as Provost and Vice Chancellor, Academic Affairs & Research; WILLIAM R. STRIPLING, as Vice Chancellor for Student Affairs; and RICHARD BURNS, Individually and as a Professor

DEFENDANTS

MOTION TO DISMISS Come all defendants, Arkansas State University, Jonesboro; Charles L. Welch; Tim Hudson; Lynita Cooksey; William R. Stripling; and Richard Burns, by and through their attorneys, Womack Phelps Puryear Mayfield & McNeil, P.A., and for their Motion to Dismiss, state: 1.

On April 27, 2017, plaintiff filed this complaint pro se to protest his 2014 expulsion

from Arkansas State University Jonesboro (“ASUJ”). Plaintiff attempts to allege causes of action under the First Amendment, the Fourteenth Amendment, and various federal civil rights statutes, as well as a breach of contract claim under Arkansas state law. However, all claims fail and must be dismissed. 2.

All claims against ASUJ are barred by the doctrine of sovereign immunity and must

be dismissed. 3.

All claims against the other defendants in their official capacities are also barred by

the doctrine of sovereign immunity and must be dismissed.

Case 3:17-cv-00093-JM-BD Document 6 Filed 06/01/17 Page 2 of 4

All claims against Professor Richard Burns in his individual capacity are barred by

the doctrine of qualified immunity and must be dismissed. 5.

Immunity aside, plaintiff fails to state a claim for deprivation of due process because

he was provided notice of the charges, and he was given the opportunity to hear an explanation of the evidence against him and offer his side of the story, which is all that due process requires. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 545-46, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). 6.

Any and all claims based on alleged inadequacy of pre-deprivation process must also

be dismissed because plaintiff waived his right to complain by choosing not to attend the two due process hearings, despite having received notice of the date and subject matter of the hearings. See Sutton v. Bailey, 702 F.3d 444, 449 (8th Cir. 2012) (finding that former Arkansas State University employee waived right to complain about adequacy of post-termination procedures by not invoking those procedures). See also Demming v. Housing and Redev. Auth., 66 F.3d 950, 954 (8th Cir. 1995) (finding adequate pre-termination process when employee choose not to take advantage of pretermination due process opportunities provided to her). 7.

Additionally, any and all claims based on events prior to April 27, 2104, are barred

by the applicable three-year statute of limitations. ARK. CODE ANN. § 16-56-105. See Wilson v. Garcia, 471 U.S. 261, 280 (1985) (holding that § 1983 claims are best characterized as personal injury actions for purposes of determining the applicable limitations period). 8.

Finally, plaintiff fails to state a claim of racial discrimination or retaliation under 42

U.S.C. §§ 1981, 1982, 1983, 1985, or 1986, or a claim for breach of contract, because he offers nothing more than bare assertions and legal conclusions without supporting facts sufficient to plead -2-

Case 3:17-cv-00093-JM-BD Document 6 Filed 06/01/17 Page 3 of 4

a claim that is plausible on its face. Drobnak v. Anderson Corp., 561 F.3d 778, 783 (8th Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 1974, 167 L. Ed. 2d 929 (2007)). 9.

In support of this motion, defendants file a memorandum brief contemporaneously

herewith. 10.

Defendants also hereby plead and preserve each and every defense available to them,

including those defenses listed in Rules 8(c) and 12(b) of the Federal Rules of Civil Procedure, specifically, sovereign immunity, qualified immunity, estoppel, statute of limitations, waiver, lack of subject matter jurisdiction, lack of personal jurisdiction, insufficient process, insufficient service of process, and failure to state a claim upon which relief can be granted. WHEREFORE, defendants Arkansas State University, Jonesboro; Charles L. Welch; Tim Hudson; Lynita Cooksey; William R. Stripling; and Richard Burns pray that the Court dismiss plaintiffâ&#x20AC;&#x2122;s Complaint; for their costs; and for all other relief to which they are properly entitled.

Respectfully submitted, Jeffrey W. Puryear (93109) Mark Mayfield (93180) Ryan M. Wilson (2008206) WOMACK PHELPS PURYEAR MAYFIELD & McNEIL, P.A. P.O. Box 3077 Jonesboro, AR 72403 (870) 932-0900 rwilson@wpmfirm.com By:__/s/ Ryan M. Wilson_____________________ Attorneys for defendants

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Case 3:17-cv-00093-JM-BD Document 6 Filed 06/01/17 Page 4 of 4

CERTIFICATE OF SERVICE I hereby certify that service of the above and foregoing pleading was made by sending a copy of same by first class mail to the following on this 1st day of June, 2017: Mr. Ryan Anthony Johnson 101 Mark Street Jonesboro, AR 72401-8813

___/s/ Ryan M. Wilson_______________________ Ryan M. Wilson

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Case 3:17-cv-00093-JM-BD Document 7 Filed 06/01/17 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION

RYAN ANTHONY JOHNSON v.

PLAINTIFF

Case No. 3:17-cv-00093 (JM/BD)

DEFENDANTS

MEMORANDUM BRIEF IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS I.

Facts.

Plaintiff initiated the present lawsuit by filing a complaint on April 27, 2017, to protest his 2014 expulsion from Arkansas State University Jonesboro (“ASUJ”). He attempts to assert claims under 42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, and the First and Fourteenth Amendments to the United States Constitution, as well as a claim for breach of contract under Arkansas state law. The listed defendants include Arkansas State University Jonesboro (“ASUJ”), various current ASUJ administrators, one former administrator, and a professor. It appears all individual defendants are sued in their official capacities only, except Professor Richard Burns who is specifically sued in both his individual and official capacities. (Doc. 2, at 6-7) Plaintiff was enrolled in a graduate program at ASUJ for the Spring semester of 2014. (Doc. 2, at 7) Plaintiff acknowledges that he was involved in separate incidents on ASUJ campus on February 11, 2014, February 19, 2014, and April 24, 2014, respectively. (Doc. 2, at 7-8) Plaintiff

Case 3:17-cv-00093-JM-BD Document 7 Filed 06/01/17 Page 2 of 14

does not contest that these incidents actually occurred and preceded his expulsion. On April 25, 2014, plaintiff was notified by e-mail that a meeting was scheduled for April 29, 2014, to discuss with him possible disciplinary action arising out of the incidents on February 19, 2014, and April 24, 2014.1 (Doc. 2, at 8-9) Plaintiff was also informed in this e-mail that he should have no contact with any faculty or staff at ASUJ, except certain administrators, until after the meeting. (Doc. 2, at 8) Plaintiff admits violating this no-contact mandate. (Doc. 2, at 9) Despite notice and knowledge of the meeting, plaintiff chose not to attend the April 29, 2014, meeting. (Doc. 2, at 9) On April 30, 2014, plaintiff was notified by email that an expulsion hearing was scheduled for May 2, 2014, based on the original disciplinary charges and new charges for violating the nocontact mandate and failing to attend the April 29, 2014, meeting. (Doc. 2, at 9-10) This notification included an explanation that the purpose of the hearing was to determine whether plaintiff would continue as a student or be expelled and permanently barred from ASUJ. (Doc. 2, at 9) Despite this notice and knowledge of the hearing, plaintiff chose not to attend the May 2, 2014, expulsion hearing. (Doc. 2, at 10) On May 2, 2014, plaintiff was expelled from ASUJ. (Doc. 2, at 10) Plaintiff appealed his expulsion, and the decision was affirmed by Dr. Tim Hudson. (Doc. 2, at 10) As explained infra, plaintiff has failed to state a claim against any defendant, and his complaint should be dismissed, pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure.

Defendants do not concede that plaintiff’s expulsion was disciplinary, rather than academic. However, for purposes of this motion, “[w]hether that hearing led to an academic or disciplinary removal is procedurally irrelevant.” Keefe v. Adams, 840 F.3d 523, 534 (8th Cir. 2016). Plaintiff “was awarded at least as much due process as the Fourteenth Amendment requires.” Id. at 535 (quoting Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 85 (1978)). -2-

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II.

Plaintiff’s claims against ASUJ are barred by sovereign immunity.

All plaintiff’s claims against ASUJ for both monetary and injunctive relief are barred by the doctrine of sovereign immunity.

Through the Eleventh Amendment to the United States

Constitution, the doctrine of sovereign immunity bars claims in federal court against States and state agencies for both monetary relief and injunctive relief.2 Monroe v. Arkansas State University, 495 F.3d 591, 594 (8th Cir. 2007). Sovereign immunity is a jurisdictional immunity from suit, and a federal court presented with claims barred under the doctrine of sovereign immunity is without jurisdiction to hear the claims. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 64 (1996). As an agency of the State of Arkansas, ASUJ is entitled to sovereign immunity. Monroe, 495 F.3d at 594; Dover Elevator Co. v. Arkansas State University, 64 F.3d 442, 447 (8th Cir. 1995). More specifically, ASUJ’s sovereign immunity serves as a jurisdictional bar to all plaintiff’s claims for any type of relief. Monroe, 495 F.3d at 594 (agreeing that “the Eleventh Amendment bars suit against [ASUJ] for any kind of relief, not merely monetary damages”); Dover, 64 F.3d at 447 (“Because ASU and its trustees in their official capacities, the party to the contract with Dover, are immune from suit based on state law claims in federal court, we find that the district court did not err in dismissing Dover’s state law breach of contract claim.”). Thus, sovereign immunity serves as a complete jurisdictional bar to plaintiff’s claims against ASUJ. Sovereign immunity under the Eleventh Amendment to the U.S. Constitution is a matter of federal law, and the only way a state may be sued in federal court is if the state consents. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 100, 104 S. Ct. 900, 79 L. Ed. 2d

The U.S. Supreme Court has ruled that the Eleventh Amendment applies to suits against States by their own citizens. See Hans v. Louisiana, 134 U.S. 1 (1890). -3-

Case 3:17-cv-00093-JM-BD Document 7 Filed 06/01/17 Page 4 of 14

67 (1984) superseded by statute on other grounds 28 U.S.C. § 1367 (“It is clear, of course, that in the absence of consent, a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. . . . This jurisdictional bar applies regardless of the nature of the relief sought.”). ASUJ has properly preserved the sovereign immunity defense; it does not consent to suit, and thus is entitled to sovereign immunity under federal law. III.

Plaintiff’s claims against the individual defendants must be dismissed.

Sovereign immunity also bars plaintiff’s claims against the individual defendants in their official capacities, while qualified immunity bars plaintiff’s claims against Professor Burns in his individual capacity. A.

The official capacity claims should be dismissed pursuant to the doctrine of sovereign immunity.

Sovereign immunity serves as a bar to all plaintiff’s claims against the individual defendants in their official capacities. As to the § 1981 claim, the Eighth Circuit has spoken clearly that sovereign immunity under the Eleventh Amendment bars such a claim. Singletary v. Missouri Dep’t of Corrections, 423 F.3d 886, 890 (8th Cir. 2005) (“[O]ther circuits have uniformly held that a state is immunized from § 1981 liability under the Eleventh Amendment. . . . We agree with our sister circuits and conclude that the Department is immunized from any claim by [plaintiff] brought under § 1981.”). Further, “a federal action to enforce rights under § 1981 against a state actor may only be brought pursuant to § 1983.” Artis v. Francis Howell North Band Booster Ass’n, 161 F.3d 1178, 1181 (8th Cir. 1998). And, for purposes of sovereign immunity, “[c]ourts construe § 1982 as coextensive with § 1981.” Rogers v. Helena-West Helena School Dist., 2006 WL 2850437, at *2 (E.D. Ark. Oct. 4, 2006). In

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other words, claims against state actors to enforce rights under §§ 1981 and 1982 can only be brought pursuant to § 1983. And as discussed infra, sovereign immunity bars such § 1983 claims. It is well-recognized that sovereign immunity bars claims under § 1983 against individuals in their official capacities, for all types of relief except prospective injunctive relief.3 Section 1983 states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 42 U.S.C. § 1983. The United States Supreme Court has expressly held that “neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dept. of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304 (1989). The Will Court stated further, “Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office. . . . As such, it is no different from a suit against the State itself.” Id. 491 U.S. at 71. For these reasons, the individual

Plaintiff does not request prospective injunctive relief. He seeks, inter alia, “an Order requiring defendants to remove any and all adverse letters, notes, or memos from plaintiff’s student records or files under their custody and control.” (Doc. 2, at 22) This may be injunctive relief, but it is not prospective. Prospective injunctive relief is “available where a plaintiff alleges an ongoing violation of federal law, and where the relief sought is prospective rather than retrospective.” Entergy, Arkansas v. Nebraska, 210 F.3d 887, 898 (8th Cir. 2000) (citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 294, 117 S. Ct. 2028, 138 L. Ed. 2d 438 (1997)) (emphasis in original). Plaintiff does not allege an ongoing violation of federal law. He claims to have been wronged in the past. Additionally, the relief he seeks is retrospective, not prospective, because he seeks to remedy past actions. Therefore, all his claims are barred. -5-

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defendants in their official capacities are immune from claims under §§ 1981, 1982, and 1983, and they must be dismissed. B.

Qualified immunity bars the claims against Professor Richard Burns in his individual capacity.

Professor Burns is entitled to qualified immunity which bars plaintiff’s claims against him in his individual capacity. Under federal law, ASUJ employees performing discretionary functions generally are shielded from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Monroe v. Ark. State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727 (1982)). “Until this threshold immunity question is resolved, discovery should not be allowed.” Harlow, 457 U.S. at 818. A trial court has the discretion to decide whether an alleged constitutional right was “clearly established” before it decides whether the alleged constitutional right existed. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009). “A right is clearly established, for qualified immunity purposes, if the ‘contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right.’” Rush v. Perryman, 579 F.3d 908, 913 (8th Cir. 2009) (citations omitted) (alternation in original). Further, an inquiry regarding whether an alleged right was “clearly established” is an objective inquiry. Harlow, 457 U.S. at 818-19. Empty allegations regarding subjective intent or malice should play no part. Id. 457 U.S. at 817-18 (stating that “bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery”).

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Application of the “clearly established” standard also requires a determination of “the level of generality at which the relevant ‘legal rule is [applied].” Anderson v. Creighton, 483 U.S. 635, 639, 107 S. Ct. 3034, 3038-39 (1987). For example, although a person’s alleged right to due process may be clearly established by the 14th Amendment, such an application of the “clearly established” test at that level of generality would effectively convert the rule of qualified immunity . . . into a rule of virtual and unqualified liability simply by alleging a violation of [an] extremely abstract right. . . . The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say an official action is protected by qualified immunity unless the very action in question has been held unlawful, . . . but it is to say that in the light of pre-existing law, the unlawfulness must be apparent. Id. 483 U.S. at 639-40, 107 S. Ct. at 3039-40. “In other words, ‘[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.’” Serna v. Goodno, 567 F.3d 944, 952 (8th Cir. 2009) (citation omitted). The sole allegation referencing Professor Burns by name claims that he taught a course entitled “African-American Folkore” and that plaintiff debated, objected to, and disagreed with academic positions taken by the professor during class on April 24, 2014. (Doc. 2, at 8) The April 24 class is mentioned again under Count I where plaintiff pleads generally that “defendants imposed a time, place and manner restriction on plaintiff’s speech, causing an infringement of his rights based on the content of plaintiff’s speech.” (Doc. 2, at 11) Plaintiff has simply failed to plead facts to show that Professor Burns violated any clearly established constitutional right or transgressed a bright line. From the complaint, plaintiff alleges only that he and Professor Burns engaged in a debate and developed a disagreement. It is unclear how plaintiff claims he was wronged by Professor Burns,

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or how the debate and disagreement constituted an unlawful restriction of plaintiff’s First Amendment rights. See Keefe v. Adams, 840 F.3d 523, 531 (8th Cir. 2016) (“That a graduate student’s unprofessional speech leads to academic disadvantage does not ‘prohibit’ that speech, or render it unprotected; the university simply imposes an adverse consequence on the student for exercising his right to speak at the wrong place and time, like the student who receives a failing grade for submitting a paper on the wrong subject.”). Plaintiff does not allege that Professor Burns was involved in any way with the decision to expel plaintiff. Professor Burns is therefore entitled to qualified immunity against the individual capacity claims. IV.

Plaintiff has failed to state a plausible claim under any theory.

When analyzing a motion to dismiss under Rule 12(b)(6), the Court assumes all factual allegations in the complaint are true. Drobnak v. Anderson Corp., 561 F.3d 778, 783 (8th Cir. 2009). However, the complaint must contain sufficient facts, not mere conclusions, to satisfy the legal requirements of the claim, in order to avoid dismissal. Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965, 167 L. Ed. 2d 929 (2007)). “The rule does not require great detail, but the facts alleged must be enough to raise a right to relief above the speculative level and must state a claim to relief that is plausible on its face.” Id. A.

Plaintiff’s claim for deprivation of due process fails.

Plaintiff has not and cannot plead a plausible claim for deprivation of due process. Plaintiff acknowledges that before his expulsion, he was provided notice of the charges against him, and he was given the opportunity to hear an explanation of the evidence against him and offer his side of the story. (Doc. 2, at 8-10) This is all that due process requires. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 545-46, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985). -8-

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Even assuming that plaintiff had a protected property interest, which defendants deny, plaintiff was provided all the process he was due. “Where post-removal proceedings are available, a timely pre-removal meeting that affords the student an opportunity to be heard ‘serve[s] as the initial check against mistaken decisions that Loudermill requires.’” Keefe v. Adams, 840 F.3d 523, 535 (8th Cir. 2016) (quoting Sutton v. Bailey, 702 F.3d 444, 448 (8th Cir. 2012)). “Even if this was a purely disciplinary decision, as [plaintiff] contends, he was entitled to ‘oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. Further, when a plaintiff chooses not to participate or take advantage of available process, he waives his right to later complain about the adequacy of the process. Sutton, 702 F.3d at 447 (citations omitted). See also Bohn v. County of Dakota, 772 F.2d 1433, 1441 (8th Cir. 1985) (citation omitted) (“[A] state cannot be held to have violated due process requirements when it has made procedural protection available and the plaintiff has simply refused to avail himself of [it].”). Plaintiff admits that he was provided notice of the date and subject matter of the April 29, 2014, meeting, but chose not to attend. (Doc. 2, at 8-9) Plaintiff also admits that he was provided notice of the date and subject matter of the May 2, 2014, expulsion hearing, but chose not to attend. (Doc. 2, at 9-10) Plaintiff chose not to participate on two occasions and thus waived his right to complain that he was deprived of due process. Regardless, the meeting and expulsion hearing satisfied the requirements of due process because plaintiff was provided written notice of the charges, and he was given the opportunity to hear an explanation of the evidence against him and offer his side of the story. Plaintiff has not and cannot state a plausible claim for deprivation of due process. -9-

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Plaintiff’s claims arising from events before April 27, 2014 are barred by the statute of limitations.

The applicable three-year statute of limitations bars any of plaintiff’s claims that may have arisen from events before April 27, 2014, specifically including the February 11, 2104, February 19, 2014, and April 24, 2014 incidents. The applicable statute of limitations for plaintiff’s federal law claims is three years. ARK. CODE ANN. § 16-56-105. See Wilson v. Garcia, 471 U.S. 261, 280 (1985) (holding that § 1983 claims are best characterized as personal injury actions for purposes of determining the applicable limitations period); and Oti Kaga v. South Dakota Housing Devel. Auth., 342 F.3d 871, 879 (8th Cir. 2003) (citing Wilson v. Garcia and applying personal injury limitation period to claims under 42 U.S.C. §§ 1981, 1982, and 1983). Plaintiff filed his complaint on April 27, 2017. (Doc. 2, at 1) His complaint could be read to allege some claims arising directly from the incidents on February 11, 2104, February 19, 2014, and April 24, 2014, in addition to his expulsion on May 2, 2014. To the extent plaintiff alleges claims arising from any event before April 27, 2014, those claims are barred by the statute of limitations and should be dismissed. C.

Plaintiff’s claims of racial discrimination or retaliation fail.

Plaintiff fails to plead any facts sufficient to support a plausible claim of racial discrimination or retaliation. To satisfy the plausibility standard of pleading in federal court, a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “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. “A pleading that

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offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. In other words, while “the pleading standard that Rule 8 announces does not require ‘detailed factual allegations,’ . . . it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. For example, bare allegations that a plaintiff is a Native American and politically active, with nothing more, do not provide sufficient factual information to sustain a plausible claim of discrimination or conspiracy under 42 U.S.C. § 1985. Bellecourt v. U.S., 994 F.2d 427, 431 (8th Cir. 1993). Plaintiff pleads that he is an African-American who was wrongfully expelled by defendants because of his race and political beliefs. (Doc. 2, at 3). However, other than plaintiff’s race and the fact of his expulsion, there are no facts that allow the Court to draw a reasonable inference that plaintiff’s expulsion had anything to do with his race or political beliefs. The bare assertion that the two are connected will not suffice. Further, in each of his eight counts in the Complaint, plaintiff merely repeats a formulaic recitation of the federal statutes he sues upon. He fails to plead any supporting factual content, and therefore, he fails to plead plausible claims. Additionally, the intra-corporate conspiracy doctrine bars plaintiff’s claims under 42 U.S.C. §§ 1985 and 1986. Under the intra-corporate conspiracy doctrine, a corporation cannot conspire with itself through its agents when the acts of the agents are within the scope of their employment. Bankhead v. Ark. Dep’t of Human Serv., 264 F. Supp. 2d 805, 827 (E.D. Ark. 2003), reversed on other grounds 630 F.3d 839 (8th Cir. 2004) (citing Runs After v. U.S., 766 F.2d 347, 354 (8th Cir. 1985)). The Eighth Circuit has ruled that the intra-corporate conspiracy doctrine applies to governmental entities. Id. (citing Richmond v. Board of Regents of the Univ. of Minn., 957 F.2d 595 -11-

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(8th Cir. 1992)). And because plaintiff’s § 1986 claim is dependent on his § 1985 claim, which is barred by the intra-corporate conspiracy doctrine, the § 1986 claim must fail as well. Runs After, 766 F.2d at 355. D.

Plaintiff’s breach of contract claim must be dismissed.

Plaintiff has not pled a plausible claim for breach of contract. He merely alleges that he “entered into a contract with defendants for educational services,” (Doc. 2, at 20), without attaching a copy of the contract or describing any of the contract terms or parties to the contract. As such, plaintiff’s contract claim should be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. To state a claim for breach of contract under Arkansas law, a complaint must contain, among other things, factual allegations regarding the existence of a contract between the parties. Forever Green Athletic Fields, Inc. v. Lasiter Const., Inc., 2011 Ark. App. 347, *24, 384 S.W.3d. 540, 555; AMI 2401, 2402; see also Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 447 (8th Cir. 1995) (affirming dismissal of contract claims against ASU trustees because the trustees, in their individual capacities, were not parties to the contract and they were immune from suit in their official capacities). In his complaint, plaintiff does not plead that any particular individual defendant was a party to the purported contract for educational services. The complaint is simply devoid of any facts to support a breach of contract claim against the individual defendants, either in their individual or official capacities. Therefore, plaintiff’s contract claims against the individual defendants must be dismissed pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

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Separate defendant Tim Hudson is no longer at ASUJ and should be dismissed.

Plaintiff acknowledges that separate defendant Tim Hudson was previously Chancellor of ASUJ, but is no longer at ASUJ and does not currently hold that position. (Doc. 2, at 6) Plaintiff has alleged only an official capacity claim against Dr. Hudson. Even if such relief were granted, Dr. Hudson would not have any ability to accomplish the ordered relief, by plaintiff’s own admissions. For this reason, the Court should dismiss Dr. Hudson as a defendant in this case. V.

Conclusion.

For the foregoing reasons, plaintiff’s complaint should be dismissed in its entirety. Sovereign immunity bars all claims against ASUJ and the individual defendants in their official capacities. Qualified immunity bars plaintiff’s claims against Professor Richard Burns in his individual capacity. And, plaintiff has failed to plead facts sufficient to state any claim that is plausible on its face. Accordingly, plaintiff’s complaint should be dismissed.

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___/s/ Ryan M. Wilson_______________________ Ryan M. Wilson

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