Opinion
C.A. PC 2007-6702
10-02-2015
WILLIAM FELKNER v. RHODE ISLAND COLLEGE; JOHN NAZARIAN, Individually and in his Official Capacity as President of Rhode Island College; SCOTT KANE, Individually and in his Official Capacity as Dean of Students at Rhode Island College; CAROL BENNETT-SPEIGHT, Individually and in her Official Capacity as Dean of the School of Social Work; JAMES RYCZEK, Individually; ROBERTA PEARLMUTTER, Individually and in her Official Capacity as Professor of Social Work; and S. SCOTT MUELLER, Individually and in his Official Capacity as Assistant Professor of Social Work
For Plaintiff: Diane M. Kildea, Esq. Thomas W. Lyons, III, Esq. For Defendant: Timothy J. Dodd, Esq. Jeffrey S. Michaelson, Esq.
For Plaintiff: Diane M. Kildea, Esq. Thomas W. Lyons, III, Esq.
For Defendant: Timothy J. Dodd, Esq. Jeffrey S. Michaelson, Esq.
DECISION
VOGEL, J.
This matter is before the Court on Defendants' Motion for Summary Judgment and on Plaintiff's objection thereto. Plaintiff William Felkner (Felkner or Plaintiff) has sued Rhode Island College (RIC); John Nazarian, individually and in his official capacity as President of RIC (President Nazarian); Carol Bennett-Speight, individually and in her official capacity as Dean of the School of Social Work (Dean Bennett-Speight); James Ryczek, individually (Ryczek); Roberta Pearlmutter, individually and in her official capacity as Professor of Social Work (Professor Pearlmutter); S. Scott Mueller, individually and in his official capacity as Assistant Professor of Social Work (Mueller); and Scott Kane, individually and in his official capacity as Dean of Students at RIC. All of the Defendants argue that there exists no genuine issue as to a material fact and that they are entitled to judgment as a matter of law.
In his seven-count First Amended Complaint, Felkner alleges Defendants knowingly and intentionally violated, as well as engaged in a conspiracy to violate, his constitutional rights to free speech, equal protection, and due process through political viewpoint discrimination and suppressive academic conduct. Felkner seeks recovery "[p]ursuant to 42 U.S.C. §§ 1983 and 1988, as well as the Rhode Island Civil Rights Act of 1990 [RICRA] . . ." on all counts other than the conspiracy charge, which he brings pursuant to 42 U.S.C. § 1985(3). (First Am. Compl. ¶¶ 115, 121, 127, 133, 139, 150, and 152.) He seeks monetary damages and equitable relief. Id. at 34. Defendants deny violating Felkner's constitutional rights, but maintain that even if they had done so, their actions are protected from suit pursuant to the doctrine of qualified immunity.
In his objection to the Motion for Summary Judgment, Felkner maintains that the Court should not entertain Defendants' Motion because they previously sought summary judgment on the same grounds, and another justice of this Court denied that motion. He also contends that this justice had an opportunity in November 2014 to rule in favor of Defendants on the qualified immunity doctrine, but declined to do so. He argues that the Motion is barred by the doctrine of law of the case, to wit, that it is the law of this case that Defendants are not entitled to summary judgment on the doctrine of qualified immunity.
In the alternative, Felkner asserts that even if considered on its merits, the Court should deny Defendants' Motion for Summary Judgment. Felkner notes that he has brought federal claims against Defendants and that those claims cannot be resolved by summary judgment. Felkner further points to voluminous discovery responses in asserting that the case is fact driven and that there exists genuine issues as to material facts. Finally, Felkner contends that should the Court find for Defendants based upon their qualified immunity defense, his equitable claims nevertheless would survive the Motion.
For the reasons set forth herein, the Court finds that the doctrine of the law of the case does not bar the Court from considering Defendants' Motion. The Court further finds that there exist no genuine issues of material fact to demonstrate that Defendants violated Felkner's constitutional rights, state and federal; consequently, Defendants are entitled to judgment as a matter of law on his 42 U.S.C. § 1983 and RICRA claims. As Felkner has failed to demonstrate any constitutional violations, the Court also finds that he is not entitled to relief on his equitable claims. In addition, the Court finds that Felkner failed to state a claim with respect to the conspiracy charge.
I
Facts and Travel
With respect to "compelled speech, " the United States Supreme Court jurisprudence "has only ever found a violation of the First Amendment right . . . in the context of forced speech that requires the private speaker to embrace a particular government-favored message." Id. at 188. However, "[i]n order to compel the exercise or suppression of speech, the governmental measure must punish, or threaten to punish, protected speech by governmental action that is 'regulatory, proscriptive, or compulsory in nature.'" Phelan v. Laramie Cnty. Cmty. Coll. Bd. of Trs., 235 F.3d 1243, 1247 (10th Cir. 2000) (quoting Laird v. Tatum, 408 U.S. 1, 11 (1972)). Similarly, the government may not place constitutional conditions such as withholding a benefit for failure to surrender a constitutionally protected interest. See Perry v. Sindermann, 408 U.S. 593, 597 (1972) (stating government "may not deny a benefit to a person on a basis that infringes his [or her] constitutionally protected interests-especially, his [or her] interest in freedom of speech").
Felkner alleges that in part one of the Policy and Organizing class, Ryczek violated his free speech when he "provided the students with an approved list of issues to lobby[]" that "involved a leftist position on social welfare issues[]" with which he disagreed, but was compelled to follow. (Verified Compl. ¶ 34.) He contends that Ryczek further violated his free speech rights when he would not allow Felkner to switch sides on his chosen topic-support of SB 525-after Felkner argued that Professor Pearlmutter's study of the issue was flawed and that he had discovered a contradictory study. Felkner further alleges that Ryczek then gave him a failing grade after he exercised his right to free speech by writing his paper and debating the topic from the opposite perspective.
Felkner's version of events simply is not supported by the record. On the contrary, the record demonstrates that Ryczek "provided students with a list of 'suggested' issues[, ]" and he also "encouraged students to come up with other ideas/choices." (Defs.' Ex. H, Affidavit of Ryczek, ¶¶ 20-21.) The record fails to establish any evidence that Felkner ever approached Ryczek about an alternative idea or choice. Id. at ¶ 22. Ryczek further testified that "[n]o students were assigned to lobby for or against any issue in the class [Felkner] took with me, which ended before the General Assembly was in session." Id. at ¶ 19. Felkner has offered no evidence to refute this contention.
Referring to Felkner's request to switch sides for his chosen topic, Ryczek testified that "the reason why I refused to allow him to change sides at the last minute was because it would have been unfair to the other group members and because it was a useful academic exercise, as with any academic debate, to argue from different perspectives regardless of one's personal beliefs." Id. at ¶ 38. In his Debate and Policy Paper Feedback, Ryczek noted that he had explained to Felkner at the time that "[a]t least half the class was also arguing from a perspective that they did not necessarily agree with. Hence, you were not being asked to do an assignment that was any different than that being required of other students[.]" (Pl.'s Ex. 17 at 3.) In addition, Ryczek told Felkner:
"I was clear that you would be required to write the paper and present the debate from the pro side of the policy issue . . . the policy issue that you personally picked in October and the perspective (pro) that you personally chose in consultation with your group classmates." Id. (Emphasis in original, ellipses in original.)
When Felkner nevertheless wrote his paper from the opposite perspective, Ryczek gave him a failing grade, explaining,
"As you know, your paper is not written from the position you chose in your group (pro). Regardless of the content, application of theory and critical analysis, you did not write from the perspective you were required to use in this academic exercise. Therefore, the paper is [sic] must receive a failing grade." Id. at 4.
Commenting on Felkner's participation in the group debate, Ryczek stated that Felkner's "participation was anemic and [he] graded him on that portion of the assignment accordingly." (Defs.' Ex. H ¶ 36.) In his notes about the debate, Ryczek observed that Felkner "said that he had no research to support his client's perspective, but as a social worker he supports her right to self- determination." (Pl.'s Ex. 17 at 2.) In feedback, Ryczek informed Felkner that it was "unfortunate that you decided not to properly participate on the pro side of the policy issue in your group's presentation in class." Id. at 3. He also noted that Felkner "made an unsupportive remark about your client to your colleagues. You stated, 'Wouldn't you like your education paid for?' regarding your client's expressed need for education and training services." Id. at 3-4. Although Ryczek opined that "both of those actions [were] unprofessional and inconsistent with the Code of Ethics and appropriate social work practice[, ]" he stated that he was
"most concerned about your decision not to fully participate in the debate exercise. It is very distressing that you placed the entire burden for the presentation on the shoulders of your three classmates. Most important, you left one classmate to carry the entire pro side of the debate on her own." Id. at 4.
Thus, after concluding that Felkner's "work for this debate presentation assignment was not acceptable[, ]" Ryczek awarded Felkner with an "F" grade for the assignment. Id.
Although Felkner maintains that Ryczek violated his free speech rights in part one of the Policy and Organizing class when he compelled Felkner to write about, and argue in favor of, a topic with which he disagreed politically, he has not provided genuine issues of material fact to support this assertion. The undisputed facts demonstrate that Felkner was given an assignment to write a paper and debate a topic in class as part of a group. Felkner chose his topic, but then changed his mind and wanted to switch sides late in the course. After Ryczek explained his reasons for refusing to give Felkner permission to switch sides-that it was a useful academic exercise to argue from a non-preferred perspective and that it would unfairly impact other group members-Felkner ignored that refusal by writing his paper and participating in his group debate from the opposite perspective to that which he had chosen earlier in the year. Ryczek then reasonably awarded Felkner an "F" grade on both assignments for failure to follow directions. See Hazelwood Sch. Dist., 484 U.S. at 273 (stating "educators do not offend the First Amendment . . . so long as their actions are reasonably related to legitimate pedagogical concerns"). Ryczek went so far as to offer Felkner an opportunity to improve his grade on the assignment by resubmitting it, an offer that Felkner failed to accept. (Defs.' Ex. H ¶ 43.) Ryczek still gave him a passing grade for his overall work in the course. (Verified Compl. ¶ 51.)
There is nothing in the record to suggest that Felkner was forced to embrace any subject; rather, the assignments simply were part of SSW's curricular mission to encourage critical thinking. See Brown, 308 F.3d at 953 (recognizing that "a teacher may require a student to write a paper from a particular viewpoint, even if it is a view-point with which the student disagrees, so long as the requirement serves a legitimate pedagogical purpose"). Consequently, the Court finds that Felkner has not provided any genuine issues of material fact demonstrating that Defendants compelled him to speak in violation of his free speech rights when Ryczek refused him permission to switch sides in part one of the Policy and Organizing class. The Court further finds that there exist no genuine issues of material fact to show that Felkner was engaged in protected speech when he chose to switch sides from his chosen topic and to write about and present the topic from the opposite perspective. Thus, the ASC and Dr. Olsen did not violate Felkner's constitutional rights when they later denied Felkner's grade appeal.
With respect to part two of the Policy and Organizing class, Felkner asserts that Defendants violated his right to free speech by requiring him to lobby from a political perspective that would directly impact the "poor and oppressed" or advance "social justice"-a perspective with which he disagreed-rather than allowing him to lobby for the adoption of ABOR or to lobby in favor of the Governor's welfare reform proposal. (Verified Compl. at ¶¶ 66-68.) Felkner also maintains that even though Professor Pearlmutter later granted him permission to lobby for the defeat of SB 525, she threatened to reduce his grade if he formed his own group. According to Felkner, this left him with the untenable choice of "either form[ing] his own group and face certain grade reduction, or join[ing] a group that would publicly promote social policies that go against his conscience." Id. at ¶ 69.
Part two of the Policy and Organizing class focused "on matters of policy that affect low-income and other vulnerable populations[, ]" and employed "a highly interactive format using small and large group discussion and other experiential activities." (Pl.'s Ex. 23 at 1, 3.) However, although the course description required students to "testify and/or lobby for passage of specific legislation, regulations, state plans or other public policy at public hearings, legislative and administrative offices in Rhode Island, Massachusetts, or Connecticut, " id. at 7, the record reveals that Felkner never was compelled to lobby or testify at a public hearing, and his only outstanding degree requirement when his enrollment ended involved his integrative project.
Furthermore, despite Felkner's characterization of the class as one which required him to adopt political beliefs with which he disagreed, the record fails to support this description. The record reveals that although Professor Pearlmutter initially refused his request to argue in favor of defeating SB 525, she later granted him permission to do so and to form his own group with the help of outside students. The Court further notes that the course had a valid educational purpose of encouraging critical thinking by using "a highly interactive format" for purposes of "group discussion and other experiential activities." (Pl.'s Ex. 23 at 3.) Consequently, regardless of Felkner's characterization of events, the Court concludes that Felkner has presented no genuine issues of material fact to support his contention that he was required to lobby from a political perspective in violation of his constitutional right to free speech in part two of the Policy and Organizing class.
Felkner next maintains that his being refused permission to choose welfare reform as his topic for both SWOP option projects violated his right to free speech. Specifically, he contends that because students typically choose the same subject matter for both their integrative and field placement projects, when Ryczek and Mueller initially refused him permission to work on welfare reform for his field placement project, Defendants violated his First Amendment Rights. He further contends that when Mueller later denied him permission to work on welfare reform for the integrative project because the subject matter allegedly was "toxic, " he forced Felkner to either abandon his field placement internship or to choose another topic in violation of Felkner's constitutional right to free speech. (Verified Compl. at ¶¶ 94-97.) Moreover, Felkner avers that Defendants placed unconstitutional conditions upon his graduating from the program when they required him to fulfill certain mandatory objectives-such as working toward advancing progressive social change-that were against his own political beliefs.
The record reveals that when Felkner proposed fulfilling his field placement requirement by working on social welfare reform legislation as an intern in the Governor's office, Ryczek would not approve his proposed field placement because it did not implement some of the course's mandatory academic objectives. (Pl.'s Ex. 32.) In doing so, Ryczek noted Felkner's "stated refusal to do the majority of the social work organizing and policy practice (SWOP) curriculum objectives . . . ." Id. Dr. Olsen supported Ryczek's decision in a letter to Felkner in which she stated that she "cannot approve the Plan of Study you have developed, given your statement that you would not work on a number of the academic objectives of the concentration." (Pl.'s Ex. 38.) Recognizing that these objectives were mandatory, she also reiterated Ryczek's suggestion to Felkner that "there are other concentrations in the MSW program that you may choose as alternatives to the SWOP concentration." Id. After Felkner complained to Dean Bennett-Speight about Ryczek and Dr. Olsen's refusal, Dean Bennett-Speight assigned Mueller as Felkner's field placement supervisor. (Verified Compl. ¶ 93.)
Although Mueller initially refused to allow Felkner to conduct his internship at the Governor's office, the school later granted his request in October 2005. Id. at ¶¶ 94-95. The fact that Felkner received permission to intern at his chosen location renders any argument on this point moot. The Court concludes that Felkner has not satisfied his burden of providing genuine issues of material fact to demonstrate that his constitutional right to free speech was violated with respect to his field placement assignment.
Regarding Felkner's choice of topic for the integrative project, whereas Ryczek and Mueller rejected his request to focus of welfare reform, he later met with Dean Bennett-Speight and Vice President of Academic Affairs Dan King in September 2006 and received permission to do so. (Pl.'s Ex. 46.) Dean Bennett-Speight also gave Felkner permission to take an extended period during which he could complete his integrative project and asked him to provide, in writing, his projected date of completion. Id.
Over one year later, on January 4, 2008, Dean Bennett-Speight acknowledged Felkner's request to extend the school's four-year time limit for completion of his MSW degree. (Pl.'s Ex. 47) She also acknowledged that his proffered reasons for the request were professional and personal interferences, as well as the lack of supports that normally would come from still being in the internship program. Id. Dean Bennett-Speight noted that SSW policy permits extensions in extraordinary circumstances, and that she was willing to grant his extension request, provided that (1) he submitted his problem statement and methodology to his advisor before April 15, 2008, and that they be completed and accepted by May 12, 2008; and (2) he submitted "a detailed plan, no later than, May 2008, outlining how [he] will finish the research project by May 11, 2009, notwithstanding [his] work and family obligations." Id. Dean Bennett-Speight required Felkner to acknowledge his understanding and acceptance of these conditions in writing by January 31, 2008. Id.
On March 25, 2008, Dean Bennett-Speight responded to Felkner's additional request for an extension until June 30, 2009, by refusing the request. (Pl.'s Ex. 48.) In her letter, she observed that Felkner had yet to respond to her earlier request to acknowledge and accept the conditions of his previous extension. Id. She again directed Felkner to provide said acknowledgement, this time by April 4, 2008, and that failure to do so would be considered a rejection of the previous extension offer. Id. Dean Bennett-Speight also told him that even if he accepted the extension by April 4, 2008, the April 15, 2008 deadline for submitting his problem statement and methodology to his advisor was mandatory and that failure to meet that deadline would result in termination of the extension. Id. Felkner failed to meet either deadline, April 4 or 15, 2008; therefore, on April 25, 2008, Professor Pearlmutter informed Felkner that, as a result, he no longer was considered to be enrolled as a student in SSW. (Pl.'s Ex. 49).
From the foregoing, it is clear to the Court that Felkner has not demonstrated that his free speech rights were violated with respect to the integrative project. While Felkner has provided the Court with evidence of disputes that he had with various Defendants, he has not submitted any genuine issues of material fact to demonstrate that Defendants placed unconstitutional conditions on his graduating from the program. Rather, Defendants gave Felkner permission to work on the subject of his choice for the integrative project and allowed him to extend the time for graduation provided that he submit his problem statement and methodology by a certain date. Felkner failed to meet that deadline, and Defendants reasonably considered his behavior to have constituted a rejection of the extension offer resulting in his termination from the program. See John Hancock Mut. Life Ins. Co. v. Dietlin, 97 R.I. 515, 518, 199 A.2d 311, 313 (1964) (stating "before a contractual relationship can come into being the offer must be unconditionally accepted") (citing Thurber v. Smith, 25 R.I. 60, 54 A. 790 (1903)).
Felkner also asserts that Defendants retaliated against him in various ways for exercising his free speech rights. Despite such assertions, Felkner has not met his burden of proving such retaliation.
To establish a First Amendment retaliation claim, "a plaintiff must prove '(1) that the activity in question is protected by the First Amendment, and (2) that the protected activity was a substantial factor in the alleged retaliatory action.'" Serodio v. Rutgers, 27 F.Supp.3d 546, 551 (D.N.J. 2014) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)). To demonstrate the second prong of the retaliation claim, "a plaintiff may rely on 'a range of circumstantial evidence' including temporal proximity between the speech and adverse action, evidence of retaliatory animus in the intervening period, proof of ongoing antagonism and inconsistent explanations for the alleged retaliation." Serodio, 27 F.Supp.3d at 551 (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280–81 (3d Cir. 2000); Ivan v. Cnty. of Middlesex, 595 F.Supp.2d 425, 472 (D.N.J. 2009)).
Felkner asserts that Defendants retaliated against him by transferring him into Professor Pearlmutter's class for part two of the Policy and Organizing class because he had attempted to exercise his free speech rights in part one of the class taught by Ryczek. However, as this Court has rejected Felkner's claim that he was engaged in protected speech during part one of the Policy and Organizing class, he cannot satisfy the first prong of a retaliation analysis. See Serodio, 27 F.Supp.3d at 551 (requiring a plaintiff to first prove "that the activity in question is protected by the First Amendment"). Consequently, this specific claim must fail.
Felkner further alleges that Professor Pearlmutter retaliated against him during his group presentation to the class when she allowed his classmates "to ridicule [his] associates and attack the group's position on SB 525[, ]" and when she "prevented [him] from answering questions or defending his associates." (Verified Compl. at ¶ 83.) Felkner also claims that Professor Pearlmutter lowered his grade because he did not work with other students from RIC-all of whom had chosen progressive social change projects with which he disagreed. Id. at ¶ 84. According to Professor Pearlmutter, however, the questions in class "were directed to other members of the group[, ]" and not to Felkner. (Pl.'s Ex. 52, Dep. of Professor Pearlmutter, Vol. II, 86.)
Even assuming that Felkner's classmates, in fact, did ridicule Felkner and his associates during his group presentation, and that Professor Pearlmutter did penalize him with a reduced grade for working with other students, Felkner has failed to establish that such action amounted to retaliation for engaging in protected behavior. As stated previously, Felkner has failed to establish the existence of genuine issues of material fact to show that his First Amendment rights were violated in either part one or part two of the Policy and Organizing class. Consequently, he has failed to establish the first prong of his retaliation claim with respect to these allegations. See Serodio, 27 F.Supp.3d at 551 (requiring a plaintiff to first prove "that the activity in question is protected by the First Amendment"). Furthermore, with respect to his allegation that Professor Pearlmutter penalized his grades for working with outside students, the Court will not second guess her decisions regarding her grading of Felkner's work. See Horowitz, 435 U.S. at 90 (stating "the decision of an individual professor as to the proper grade for a student in his [or her] course" is a judgment that "requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial . . . decisionmaking").
Felkner next asserts that Professor Pearlmutter retaliated against him by organizing and/or facilitating an in-class attack against him because he had exercised his constitutional right to free speech when he tape recorded his classes and disseminated them on his website. It is well settled that "[t]he act of making an audio or audiovisual recording is necessarily included within the First Amendment's guarantee of speech and press rights as a corollary of the right to disseminate the resulting recording." Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 595 (7th Cir. 2012) (emphasis in original). Furthermore "[t]he right to publish or broadcast an audio or audiovisual recording would be insecure, or largely ineffective, if the antecedent act of making the recording is wholly unprotected . . . ." Id. (emphasis in original). Thus, "banning photography or note-taking at a public event would raise serious First Amendment concerns; a law of that sort would obviously affect the right to publish the resulting photograph or disseminate a report derived from the notes. The same is true of a ban on audio and audiovisual recording." Id. at 595-96.
It appears that Felkner has satisfied the first prong of his retaliation claim-engaging in a protected activity-when he tape recorded his classes and posted the recordings to his website. However, the next inquiry in a First Amendment retaliation claim is whether "the protected activity was a substantial factor in the alleged retaliatory action." Serodio, 27 F.Supp.3d at 551.