Opinion
Civil Action No. 3:00-CV-0913-D
February 20, 2002
MEMORANDUM OPINION AND ORDER
A public school district Superintendent who refused to consider a prospective candidate for the position of middle school Assistant Principal unless she placed her children — who attended a private Christian school — in public school moves based on qualified immunity for summary judgment dismissing plaintiff's 42 U.S.C. § 1983 action seeking relief inter alia for alleged federal constitutional rights violations. Concluding that the Superintendent is entitled to qualified immunity, the court dismisses with prejudice plaintiff's federal-law claims against him and, in its discretion, dismisses without prejudice her state-law claims against him.
I
Plaintiff Karen Jo Barrow ("Barrow") sues defendants Greenville Independent School District ("GISD") and Dr. Herman Smith ("Dr. Smith"), its former Superintendent, alleging that her federal constitutional rights were violated when Dr. Smith refused to consider, interview, or recommend her to the GISD Board of Education for a school administrator position unless she enrolled her children in public school. During July 1998, the time period relevant to this lawsuit, Barrow was a classroom teacher employed by GISD who was eligible and qualified to hold the position of Assistant Principal. Her school-age children were students at Greenville Christian School, a private religious school. Dr. Smith assumes for purposes of his summary judgment motion the factual truth of Barrow's assertion that he declined to consider, interview, or recommend her unless she placed her children in the public school system, see D. Br. at 1, and he moves for summary judgment based on qualified immunity.
GISD has separately moved for summary judgment. The court will decide its motion separately in an opinion to be filed in due course.
Barrow also sued Dr. Smith in his individual capacity under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. The court dismissed that claim in a memorandum opinion and order filed July 17, 2000. Because Dr. Smith is no longer the GISD Superintendent, the court on December 4, 2001 substituted his successor as the defendant whom Barrow sues in his official capacity.
Plaintiff asserts causes of action arising under Title V of the Texas Civil Practice and Remedies Code and Article I, § 6 of the Texas Constitution. The court dismisses these claims against Dr. Smith without prejudice.
Barrow maintains that because Dr. Smith moves for summary judgment based only on qualified immunity, under this court's local civil rules his motion should have been styled as one for partial summary judgment. She argues that the motion is therefore ambiguous and should be construed against Dr. Smith. See P. Br. at 4-5. The motion clearly seeks summary judgment based solely on the defense of qualified immunity. Because this defense, if successful, immunizes Dr. Smith from suit itself rather than merely from liability, see, e.g., Mitchell v. Forsyth, 472 U.S. 511, 526 (1985), the motion is correctly styled as a motion for summary judgment rather than for partial summary judgment.
II
"Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity likewise applies to state officials sued for constitutional violations pursuant to § 1983. See Id at n. 30 (citing Butz v. Economou, 438 U.S. 478, 504 (1978)); Morris v. Dearborne, 181 F.3d 657, 665 (5th Cir. 1999)). "The Supreme Court has characterized the doctrine as protecting `all but the plainly incompetent or those who knowingly violate the law.'" Cozzo v. Tangipahoa Parish Council — President Gov't, ___ F.3d at ___, 2002 WL 32810, at *6 (5th Cir. Jan. 10, 2002) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).To determine whether Dr. Smith is entitled to qualified immunity, the court must first answer the threshold question whether, taken in the light most favorable to Barrow as the party asserting the injury, the facts she has alleged show that Dr. Smith's conduct violated a constitutional right. See Saucier v. Katz, ___ U.S. ___, 121 S.Ct. 2151, 2156 (2001) ("A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry." (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991))). "If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity." Id. If a violation could be made out on a favorable view of the parties' submissions, "the next, sequential step is to ask whether the right was clearly established." Id. "The objective reasonableness of allegedly illegal conduct is assessed in light of the rules clearly established at the time it was taken." McClendon v. City of Columbia, 258 F.3d 432, 438 (5th Cir. 2001) (footnote omitted). "Even if an official's conduct violates a constitutional right, he is entitled to qualified immunity if the conduct was objectively reasonable." Id. (footnote omitted). "`The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the' plaintiff's asserted constitutional or federal statutory right." Cozzo, ___ F.3d at ___, 2002 WL 32810, at *6 (quoting Thompson v. Upshur County, Tex., 245 F.3d 447, 457 (5th Cir. 2001)).
This determination is a matter of law for the court to decide. See Siegert, 500 U.S. at 232. Similarly, the questions whether the applicable law was clearly established at the time of Dr. Smith's conduct and whether his conduct was objectively reasonable under the extant law are both questions of law for the court. See Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999) ("Objective reasonableness is a matter of law for the courts to decide, not a matter for the jury."). For these reasons, the court grants Dr. Smith's November 5, 2001 motion to strike Barrow's proffer of expert testimony by Allan E. Parker, Jr., Esquire ("Professor Parker"), a former law professor and present president of the Texas Justice Foundation. Because Professor Parker's expressed opinions regarding the state of the law and the reasonable actions of a school Superintendent in light of the law, see Dr. Smith App. (Mot. to Strike) at 22, do not "assist the trier of fact to understand the evidence or to determine a fact in issue," the court declines under Fed, R. Evid. 702 to admit them. Even assuming arguendo that Professor Parker's testimony were admitted, this evidence would not alter the court's conclusions regarding what rights were clearly established or whether Dr. Smith's actions were objectively reasonable.
III A
The court turns initially to the question whether Barrow has alleged a constitutional violation. Barrow asserts that in his capacity as GISD Superintendent Dr. Smith stated that he would not consider her for promotion to an administrative position with the GISD so long as she chose to educate her school-age children in a private school. See P. Am. Compl. at ¶ 6.29, 6.32. She has introduced evidence in support of this allegation that, for purposes of this motion, Dr. Smith does not contest. Barrow does not allege that Dr. Smith expressed or acted upon an animus against Christian or religious private schools in particular, nor has she adduced any evidence in support of such a conclusion. Rather, she has presented proof that Dr. Smith sought to discourage or prevent GISD administrators from enrolling their school-age children in any private school, regardless of religious affiliation. See D. App. 988, 870-71, 916-17, 1013-14, 1060-61. Barrow's deposition testimony confirms this view of Dr. Smith's motives. See id. at 783-785 (reproducing Barrow's testimony stating her view that, under Dr. Smith's requirements, she would remain ineligible for promotion to middle school Assistant Principal so long as her school-age children attended any private school, or any public school outside the jurisdiction of GISD).Based on this conduct, Barrow alleges in her first amended original complaint ("amended complaint") that the following federal constitutional rights were abridged: (1) the right under the First and Fourteenth Amendments to protection of family relationships, the right to direct one's children's educations, and the right of familial privacy (count I); (2) a liberty interest and due process right under the Fourteenth Amendment Due Process Clause to make decisions concerning familial relationships and practices, including the direction and control of one's children's education (count II); and (3) the right under the First Amendment Free Exercise Clause to the free exercise of one's religious faith by choosing to educate one's children in a religious educational institution according to that faith (count III). In sum, Barrow asserts violations of her "First Amendment association rights, First Amendment free exercise right, First Amendment family and privacy rights, and the Plaintiff's liberty and due process rights guaranteed to her under the Fourteenth Amendment." P. Br. at 18. While Barrow refers to certain broadly-recognized constitutional rights, the inquiry into whether the facts alleged show a constitutional violation "must be undertaken in light of the specific context of the case, not as a broad general proposition[.]" Saucier v. Katz, ___ U.S. at ___, 121 S.Ct. at 2156.
At the specific part of her brief in opposition to Dr. Smith's motion that addresses whether she has alleged a constitutional violation, she identifies the following violations as being set out in her amended complaint: (1) the right to educate one's children in a private religious educational institution, protected by the First Amendment and the penumbra of familial rights guaranteed under the First and Fourteenth Amendments; (2) the right under the Fourteenth Amendment to make decisions concerning one's family relationships, including the direction and control of one's children's educations; and (3) the First Amendment right to exercise freely and to practice one's religious faith. See P. Br. at 17-18 n. 16. Elsewhere in her brief, she identifies as the clearly established constitutional rights at issue "the fundamental right under the First and Fourteenth Amendments of parents to direct the care, custody, control, upbringing, association, and education of their children." Id. at 1. She also specifies as a constitutional right the prohibition against government's burdening a citizen's exercise of religion absent a compelling state interest for doing so. Id. at 2. In the course of arguing that the constitutional rights she asserts were clearly established, Barrow contends she had a First Amendment right and liberty interest in the care, custody, control, upbringing, association, and education of her children that is protected by the substantive component of the Fourteenth Amendment Due Process Clause and a right not to have the exercise of that right or interest burdened by government action. Id. at 19-20. She argues that when this fundamental right or interest, or her First Amendment right of association, are burdened, the government's actions are subject to strict scrutiny and will be upheld only when the restrictions are narrowly tailored to a compelling government interest. Id. at 19-20. In the subheadings under the part of her brief that addresses whether her constitutional rights were clearly established, Barrow identifies these rights: (1) a substantive due process right to make a family decision to educate the family's children in a private religious school, id. at 20; and (2) to exercise freely her religion by sending her children to a religious school, id. at 25.
1
The court considers first Barrow's parental rights claims under the First and Fourteenth Amendments. Barrow relies on the recent statement by the Supreme Court in Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion), that one of "the fundamental liberty interests" recognized under the Constitution is the "interest of parents in the care, custody, and control of their children." She argues that this interest has long been recognized in constitutional jurisprudence, citing such cases as Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (concluding that liberty interest protected by due process includes right of parents "to control the education of their own"); Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (holding that "the liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control"); and Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (recognizing constitutional interest of parents in directing "custody, care and nurture of the child"). Barrow argues that these cases, taken together, require that strict scrutiny review be applied to Dr. Smith's conduct. See P. Br. at 19-23. The court disagrees.
The court considers together the claims that Barrow asserts in counts I and II of her amended complaint. This approach is consistent with the one the Fifth Circuit has taken in several cases that involve similar factual and legal allegations. See, e.g., Kipps v. Callier, 205 F.3d 203, 204-05 (5th Cir. 2000) (on rehearing) (analyzing under framework of Fourteenth Amendment "liberty interest in familial association" employee's claim that employment action taken by state university interfered with employee's freedom of association with his son); see also Cook v. Hudson, 511 F.2d 744, 745 (5th Cir. 1975) (applying same analysis to plaintiffs' First Amendment freedom of association and Fourteenth Amendment due process claims in school discharge context). In this respect her First and Fourteenth Amendment rights are related. See Fife v. Curlee, 902 F.2d 401, 403 (5th Cir. 1990) ("Mrs. Fyfe's decision to send her child to a private school was protected under the First Amendment and the penumbra of familial privacy rights recognized by the Supreme Court.")
The Fifth Circuit recently reviewed this line of cases in addressing an assertion of parental rights in a public school context. It concurred with decisions of other circuits, and of the district court, that under Meyer, Pierce, and Wisconsin v. Yoder, 406 U.S. 205 (1972), the rational-basis test is the appropriate standard of review. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 291 (5th Cir. 2001); see also Cook v. Hudson, 511 F.2d 744, 747 (5th Cir. 1975) (holding that patronage policy was constitutional based on "determination that the rational relation test had been met"). The Littlefield panel held that " Troxel does not change the above reasoning in the context of parental rights concerning public education." Littlefield, 268 F.3d at 291. It also stated that "[i]t has long been recognized that parental rights are not absolute in the public school context and can be subject to reasonable regulation." Id. (citing Runyon v. McCrary, 427 U.S. 160, 177 (1976) (recognizing no parental right to educate children in private segregated academies)).
Where rational-basis scrutiny applies,
the State need not articulate its reasoning at the moment a particular decision is made. Rather, the burden is upon the challenging party to negative "`any reasonably conceivable state of facts that could provide a rational basis for the [regulation].'"Bd of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (quoting Heller v. Doe, 509 U.S. 312, 320 (1993); FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)); see also Cook, 511 F.2d at 749-50 (Roney, J., concurring) (stating that where plaintiffs were bared from continued employment with school district because of failure to comply with school's patronage policy, "[t]he plaintiffs had the burden of proving that the action of the school authorities in failing to rehire them was unconstitutional.").
Although the court rejects Barrow's reliance on a strict scrutiny standard to establish a constitutional violation, she also alleges in her amended complaint that her "decision to educate her children in a private education system as opposed to a public education system does not materially and substantially interfere with the effectiveness of the Greenville Independent School District." P. Am. Compl. at ¶ 7.10. The court construes this assertion to posit that the patronage requirement would fail under rational basis review, as well. The court therefore holds that Barrow has alleged a violation of her parental rights under the First and Fourteenth Amendments.
This passage from Barrow's amended complaint, which uses language referring to material and substantial interference with the effectiveness of the school district's operations, can be found in Fifth Circuit decisions such as Brantley v. Surles, 718 F.2d 1354, 1359 (5th Cir. 1983), and Fife, 902 F.2d at 404, that similarly address the constitutionality of school district patronage policies. The court reads these cases, and prior precedent, as applying the equivalent of rational basis scrutiny. See also Cook, 511 F.2d at 746-47 (upholding school patronage policy under "rational relation" review based on district court finding "that the challenged policy was significantly related to a teacher's effectiveness and job performance").
2
The court turns next to Barrow's claim that Dr. Smith violated her First Amendment right to the free exercise of religion. As with her cause of action based on parental rights, Barrow argues that strict scrutiny is the applicable standard of review. See P. Br. at 2. Barrow neither has alleged that Dr. Smith expressed or acted upon an animus against Christian or religious private schools in particular, nor has she adduced any evidence to support such a conclusion. Viewed favorably to her, Barrow's summary judgment evidence shows only that Dr. Smith sought to discourage or prevent GISD administrators from enrolling their school-age children in any private school, regardless of the institution's particular religious affiliation. See D. App. 988, 870-71, 916-17, 1013-14, 1060-61.
Barrow argues that because, as in Yoder, she has alleged a violation of both her Fourteenth Amendment parental rights and her First Amendment free exercise rights, strict scrutiny applies. In Judge Maloney's opinion in Littlefield, he examined the origins of, and recent case law addressing, this so-called "hybrid rights" approach. In accordance with the reasoning of the First, Sixth, Ninth, and Tenth Circuits, he explicitly declined to adopt it. Littlefield v. Forney Indep. Sch. Dist., 108 F. Supp.2d 681, 705-06 (N.D. Tex. 2000) (Maloney, J.), aff'd Littlefield v. Forney Indep. Sch. Dist, 268 F.3d 275 (5th Cir. 2001). In affirming Judge Maloney's decision, the Fifth Circuit similarly declined to recognize a "hybrid rights" avenue for achieving a heightened standard of review. See Littlefield, 268 F.3d at 292-95.
In Peterson v. Minidoka County Sch. Dist., 118 F.3d 1351, 1357 (9th Cir. 1997), a case involving an elementary school principal who desired to home school his children, the Ninth Circuit applied strict scrutiny where the plaintiff alleged violations of both his parental and free exercise rights. This court is obligated, of course, to follow binding precedent of the Fifth Circuit.
Based on the allegations and evidence at issue, the court concludes that Dr. Smith's school attendance requirement constituted a neutral, generally applicable regulation that was not enacted to inhibit a particular faith or religion in general. Accordingly, it "will withstand a free exercise challenge when the regulation is reasonably related to a legitimate state interest." Littiefield, 268 F.3d at 292 (citing Employment Div., Dept of Human Res. of Or. v. Smith 494 U.S. 872, 885 (1990); Church of the Lukumi Babalu Aye, Inc. v. City of Hileah, 508 U.S. 520, 531 (1993)). Because Barrow alleges in her amended complaint that her decision to educate her children in a private rather than public school system does not materially and substantially interfere with the effectiveness of GISD, P. Am. Compl. at ¶ 7.10 — an assertion that states a rational basis claim — the court holds that she has alleged the violation of her right to the free exercise of religion.
B
Because Barrow has alleged violations of constitutional rights, the court must now decide whether the rights were clearly established in July 1998, when the conduct at issue occurred. See Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (stating that "the applicable law that binds the conduct of office holders must be clearly established at the very moment that the allegedly actionable conduct was taken.") (citing Stem v. Ahearn, 908 F.2d 1, 5 (5th Cir. 1990)). This inquiry "must be undertaken in light of the specific context of the case, not as a broad general proposition[.]" Saucier, ___ U.S. at ___, 121 S.Ct. at 2156. The court must determine whether "the contours of [the] right asserted are sufficiently clear that a reasonable official would understand that what he is doing violates that right." White v. Taylor, 959 F.2d 539, 544 (5th Cir. 1992). "The standard is formulated at this level of generality in order to afford the measure of protection that the doctrine is intended to confer." Id. "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, ___ U.S. at ___, 121 S.Ct. at 2156.
Court decisions in effect at the time of Dr. Smith's actions established as a broad, general proposition that constitutionally-protected parental and free exercise rights applied in the public school context. In the more relevant circumstances of rights held by persons who sought employment as public school administrators, however, the rights clearly established in July 1998 were qualified rather than absolute. "[In] the realm of public school employment, the court must balance the interests of the school employee with the interest of the state in promoting efficiency in the educational services which it provides though its school employees." Fyfe v. Curlee, 902 F.2d 401, 405 (5th Cir. 1990) (quoting Brantley v. Surles, 718 F.2d 1354, 1359 (5th Cir. 1983)). Under this balancing test, although the state's power to impede a person's constitutional rights was limited, it could "legitimately interfere with the constitutionally protected conduct of a public school employee whenever that conduct materially and substantially impede[d] the operation or effectiveness of the educational program." Brantley, 718 F.2d at 1359; accord Fyfe, 902 F.2d at 405 (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)).
In his brief, Dr. Smith argues that his decision not to hire as administrators candidates who chose private education for their children was in part justified by a desire to signal to parents considering educating their children in the GISD that top-level administrators were loyal to, and believed in, the public education system. See D. Br. at 43. This single justification could alone serve as a rational basis for requiring Barrow to place her children in public school in order to be eligible for promotion to an administrator position. The Supreme Court and the Fifth Circuit have each recognized the significant state interest in promoting the effective functioning of the public schools. Supported by appropriate objective evidence, a patronage requirement could conceivably be shown to materially and substantially advance the effectiveness of GISD's educational program. Given the qualified nature of the constitutional rights Barrow asserts, the court holds that it was not clearly established in July 1998 that the school patronage requirement at issue violated those rights.
In its focus on administrative personnel, the requirement in the present case differs from the ones in Fyfe, 902 F.2d at 405 (elementary school principal's secretary); Brantley, 718 F.2d at 1359 (cafeteria worker); and Stough v. Crenshaw County Bd. of Educ., 744 F.2d 1479, 1482 (11th Cir. 1984) (classroom teacher), where in each case there was "no evidence" that the plaintiff's noncompliance with the patronage policy would materially and substantially interfere with the effectiveness of the school system.
The Fifth Circuit holds that a final step in the qualified immunity inquiry requires that the court consider whether "the record shows that the violation occurred, or at least gives rise to a genuine issue of material fact as to whether the defendant actually engaged in conduct that violated the clearly-established right." Morris, 181 F.3d at 666 (quoting Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999)). Because Barrow bears the burden of proving that Dr. Smith's requirement was not rationally related to a legitimate state interest, and she has adduced no evidence that would permit a reasonable trier of fact to find that she has satisfied the factual components of this burden, Dr. Smith is entitled to summary judgment on the additional ground that no genuine issue of material fact is present concerning his liability for a constitutional violation.
Accordingly, Dr. Smith is entitled to qualified immunity because Barrow has failed to demonstrate in the specific relevant context that she has alleged a violation of a clearly established right.
C
To prevail against Dr. Smith's defense of qualified immunity, Barrow must also demonstrate that he was objectively unreasonable in his belief that the requirement he imposed was rationally related to the legitimate state objective of enhancing the functioning of the public school system. This would entail proof that all reasonable officials in his circumstances would have known that such conduct violated Barrow's constitutional rights. See Cozzo, ___ F.3d at ___ 2002 WL 32810, at *6.
The court holds that all reasonable officials would not have known of such a violation. A reasonable Superintendent could have concluded that it was constitutional in July 1998 to condition a public school administrator's employment on sending her children to public school, once the Superintendent determined that not imposing such a restriction would materially and substantially impede the operation and effectiveness of the educational program. See Kipps v. Callier, 197 F.3d 765, 769 (5th Cir. 1999) (holding head football coach's firing of assistant coach on basis that assistant coach's son chose to attend rival college to be objectively reasonable where desire to enhance recruiting and alumni relations by preserving image of loyalty was cited as reason for firing), modified on rehearing on other grounds, 205 F.3d 203 (2000). Dr. Smith is therefore entitled to qualified immunity on this additional ground.
Barrow maintains that there is summary judgment evidence that Dr. Smith admitted he knew that considering where Barrow chose to educate her children was inappropriate and would violate clearly established employment law. See P. Br. at 47-48 (citing P. App. 249-50). It is well settled, however, that "an individual defendant's subjective state of mind is irrelevant to the qualified immunity inquiry." Cozzo, ___ F.3d at ___, 2002 WL 2002 WL 32810, at *7; see also Kipps, 197 F.3d at 769 (citing Pfannstiel v. City of Marion, 918 F.2d 1178, 1187 (5th Cir. 1990); Malley, 475 U.S. at 341).
IV
Barrow contends that qualified immunity extends only to civil damages but not to nominal damages or injunctive relief. The court disagrees. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). "The [qualified immunity] privilege is `an immunity from suit rather than a mere defense to liabilitity; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Saucier, ___ U.S. at ___, 121 S.Ct. at 2156 (quoting Mitchell, 472 U.S. at 526).
V
"[W]hen all federal claims are dismissed or otherwise eliminated from a case prior to trial, [the Fifth Circuit has] stated that [its] `general rule' is to decline to exercise jurisdiction over the pendent state law claims." McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th Cir. 1998) (citing Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989)). Accordingly, the court dismisses without prejudice Barrow's state-law claims against Dr. Smith.
* * *
Dr. Smith's October 1, 2001 motion for summary judgment is granted. The federal-law claims against him are dismissed with prejudice and the state-law claims are dismissed without prejudice. In view of this decision, Barrow's October 1, 2001 motion for partial summary judgment is denied.
Dr. Smith objects to some evidence contained in Barrow's appendix. Because he is entitled to qualified immunity regardless whether these challenged items are considered, his November 8, 2001 objections to plaintiffs' evidence are overruled.
Dr. Smith moves to substitute a revised copy of his own affidavit for the copy that was originally included in his appendix. The revised affidavit corrects certain page references and other citations that were the subject of typographical errors or were omitted in the original appendix. Because Barrow has not responded to the motion and the court discerns no prejudice that will result from granting this relief, Dr. Smith's December 12, 2001 motion for leave to substitute evidence is granted.