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holding that the plaintiff's due process claim was without merit, since he was "not . . . entitled under state or other law to participate as a matter of right in college athletics"
Summary of this case from Equity in Athletics, Inc. v. Department of EducationOpinion
05 Civ. 3351 (SHS).
September 25, 2006
OPINION ORDER
Plaintiff Alishame E. Gardner brings this action pro se against, inter alia, Hunter College of the City University of New York ("Hunter"), contending that the school removed him from its wrestling team and denied him student housing due to his disability in violation of Titles II and III of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq. and 12181et. seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq. Gardner also sues pursuant to both 42 U.S.C. § 1983 — contending that the wrestling and housing decisions were made in violation of his procedural due process rights — and 42 U.S.C. §§ 1981 — contending that he was discriminated against on the basis of his race in the making and enforcement of a contract. Defendants Hunter and Terry Wansart, Hunter's Athletic Director, have moved to dismiss the complaint.
As set forth below, all of Gardner's substantive claims arose more than three years before the filing of his initial complaint in this action and are all therefore barred by the applicable statutes of limitations. In addition, his constitutional claim pursuant to 42 U.S.C. § 1983 is dismissed because even if his allegations are accurate, Gardner has failed to demonstrate that defendants have deprived him of a life, liberty or property interest in violation of his constitutional due process rights.
I. BACKGROUND
Although the complaint is difficult to discern, reading it in the light most favorable to plaintiff, Gardner alleges the following:
In 1999, Gardner, who asserts that he is mentally ill with schizophrenia, was a student at Hunter and a member of the college's wrestling team. That position was jeopardized when in November of that year Gardner sent an e-mail to Hunter's president concerning what he characterizes as "personal information security." (Compl. ¶ 11.) Although Gardner does not specifically assert that his e-mail referenced wrestling, he contends that shortly after it was sent, Robert Gaudenzi, his wrestling coach at Hunter, confronted him about the e-mail. (Compl. ¶ 12.) Gaudenzi allegedly told Gardner that "I heard you complained to the President about me and Terry [Wansart], I'm not going to complain this time." (Id.) The following day, according to Gardner, he was removed from the wrestling team's roster. (Id. ¶ 30.)
On December 1, 1999, Gardner confronted Gaudenzi and Wansart, Hunter's athletic director, to tell them that he "felt [he] was being threatened." (Id. ¶ 14.) What exactly transpired thereafter is unclear from the complaint, but in the ensuing weeks Wansart lodged a complaint with college officials, contending that Gardner physically threatened her both at that December 1 meeting and at a subsequent meeting on December 8. (Id. ¶ 16.) Gaudenzi also claimed to have been physically threatened by Gardner. (Id. ¶ 24.). Gardner asserts that these charges were fabricated. Specifically, he alleges that Wansart and another college official asked him to sign a contract containing conditions he would have to follow in order to maintain "the privilege" of being on the wrestling team (Id. ¶ 22); his refusal to do so precipitated Wansart's allegedly fabricated charge of physical intimidation. (Id. ¶¶ 22-23.) Gardner asserts that Wansart attempted to "blackmail" him by saying, "I could say you are threatening me." (Id. ¶ 22.)
Fabricated or not, Hunter's Faculty-Student Disciplinary Committee ("FSDC") on March 23, 2000 held a hearing to consider Wansart's and Gaudenzi's charges that Gardner had threatened them. (Id. ¶ 24.) At the hearing, according to Gardner, both Wansart and Gaudenzi gave false testimony regarding his alleged threats. (Id. ¶¶ 8, 24.) After the hearing, Gardner was formally removed from the wrestling team. (Id. ¶ 25.) He was informed of this decision via a letter dated the same day as the hearing, March 23, 2000. (Ex. C to Decl. of Steven L. Banks dated Oct. 25, 2005.)
Although Gardner does not specify in his complaint that he was made aware of the FSDC determination on this date, he has attached a copy of the letter to his opposition papers. (Ex. 10 to Pl.' Opposition to Def.'s Motion to Dismiss dated Dec. 2, 2005 ("Pl.'s Op.".)
The letter was sent to Gardner via certified and first class mail and informed him that based on the evidence presented at the disciplinary committee hearing, the charges by Wansart and Gaudenzi had been supported and the committee was imposing a censure. (Id.) That censure was Gardner's exclusion from participation in the Hunter wrestling program until he provided evidence that he was enrolled in a program "to control [his] outbursts." (Id.) Gardner contends that the decision was wrong and the hearing unfair, and that both were "part of a process of discrimination, harassment, and intimidation, based on the plaintiff's race and disability, to prevent and punish plaintiff for complaining about subordinates of [Vice President] Sylvia Fishman." (Id. ¶ 10.)
After his removal from the wrestling team, Gardner undertook multiple efforts to have Hunter administrators review what he characterized as an unfair hearing. He alleges that he appealed the FSDC decision; that he filed a complaint with "affirmative action officer William Mendez, Esq." asserting that he was the victim of racial harassment; and that he filed a complaint with Professor Tamara Green, Hunter's officer for dealing with charges of disability discrimination. (Id. ¶¶ 4, 5.) According to Gardner, Hunter College officials combined his appeal of the hearing with his various complaints and determined that his charges were meritless. (Id. ¶ 6.) He charges that Hunter failed to properly investigate and handle his claims. (Id.)
Finally, Gardner also contends that Pam Burthwright, a Hunter official with student housing responsibilities, deprived him of student housing because of his disability. (Id. ¶ 10.)
Gardner initially commenced this action in the Eastern District of New York on March 25, 2004. It was subsequently transferred to the Southern District of New York due to improper venue. See Gardner v. Gaudenzi, 04 Civ. 1355, Transfer Order (E.D.N.Y. Apr. 14, 2004). On March 30, 2005, then-Chief Judge Michael Mukasey partially dismissed Gardner's complaint. Gardner v. Gaudenzi, 05 Civ. 3351, Order of Partial Dismissal (S.D.N.Y. Mar. 30, 2005). Specifically, Gardner's claims pursuant to 42 U.S.C. §§ 1985 and 1986 were dismissed with prejudice for failure to state a claim upon which relief can be granted. (Id. at 2-3.) Gardner was directed to file an amended complaint containing information that would indicate why his remaining claims were not time-barred. (Id. at 6.) In May 2005 he filed the amended complaint, which added further factual details to the original complaint.
Defendants have now moved to dismiss the amended complaint on the grounds that it fails to state a claim for relief and is barred by the applicable statutes of limitations. II. DISCUSSION A. Legal Standard
Defendants Robert Gaudenzi and the estate of Sylvia Fishman had not been served at the time defendants' motion was filed, but have now been served. Though they are not parties to the present motion, for the same reasons as those set forth below, the complaint is dismissed as to them.
The Court can grant a Rule 12(b)(6) motion only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Drake v. Delta Air Lines, Inc., 147 F.3d 169, 171 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)) (quotation marks omitted). In reviewing a motion to dismiss, the court must treat all of the factual allegations in the complaint as true and must draw all reasonable inferences in favor of the non-moving party. Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir. 2000); Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir. 1999). A motion to dismiss on statute of limitations grounds is properly considered pursuant to Rule 12(b)(6). Marbi Corp. of New York v. Puhekker, 9 F. Supp. 2d 425, 426 (S.D.N.Y 1998) (citing Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989)).
B. Gardner's Claims Pursuant to the ADA, the Rehabilitation Act, and Section 1981 Are Time-Barred
Because the Americans with Disabilities Act does not contain a statute of limitations, courts look to analogous state law to determine the appropriate limitations period. Cf. Wilson v. Garcia, 471 U.S. 261, 266, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). Accordingly, courts in this district apply New York's three-year statute of limitations for personal injury claims in determining the appropriate time constraints for claims brought pursuant to Title II and Title III of the ADA. See Hunt v. Meharry Med. College, 98 Civ. 7193, 2000 U.S. Dist. LEXIS 7804, at *15 (S.D.N.Y. June 6, 2000) (Title III); Shomo v. City of New York, No. 03 Civ. 10213, 2005 U.S. Dist. LEXIS 5488, at *18-19 (S.D.N.Y. Apr. 1, 2005) (ADA in general). Similarly, that three-year statute of limitations adheres to claims brought pursuant to section 504 of the Rehabilitation Act, which also lacks a specific statute of limitations. See Morse v. University of Vermont, 973 F.2d 122, 127 (2d Cir. 1992) ("We now hold that actions under § 504 of the Rehabilitation Act are governed by the state statute of limitations applicable to personal injury actions."); Fleming v. New York University, 865 F.2d 478, 481-82 n. 1 (2d Cir. 1989). The personal injury time period is employed because both the ADA and Rehabilitation Acts are part of the "general corpus of discrimination law" and "`like § 1983 . . . may be described as `conferring a general remedy for injuries to personal rights.'" Morse, 973 F.2d at 127 (quoting Wilson v. Garcia, 471 U.S. 261, 278, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985) (§ 504)); see also Hunt, 2000 U.S. Dist. LEXIS 7804, at *15-16 (applying Morse to ADA claim). Additionally, section 1981 claims in New York are subject to a three-year statute of limitations. See Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).
While state law determines the statutes of limitations for each of these claims, federal law determines when the claims accrue.Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001). Under federal law, Gardner's claims accrued "when [he knew] or ha[d] reason to know of the injury that is the basis of [his] action."M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003) (quoting Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993)). Gardner's Title II claim therefore accrued when he knew he had been "denied the benefits of the services, programs, or activities" at Hunter or otherwise discriminated against because of his disability, see 42 U.S.C. § 12132; his Title III claim accrued when he knew he had been discriminated against on the basis of his disability in the enjoyment of the "goods, services, facilities, privileges, advantages, or accommodations" at Hunter, to the extent that Hunter is a "place of public accommodation," see 42 U.S.C. § 12132; and his Rehabilitation Act claim accrued when he knew he had been "excluded from the participation in, denied the benefits of, or subjected to discrimination" under any program or activity receiving federal financial assistance, see 29 U.S.C. § 794.
Gardner claims that two specific acts satisfy each of these standards: (i) Hunter's decision — via the FSDC — to remove him from the wrestling team because of his disability; and (ii) Hunter's decision to deny him housing on the basis of his disability. Accordingly, the statute of limitations for his disability discrimination claims began to run when he was first made aware of these decisions.
Gardner was informed that he was no longer a member of the wrestling team in March 23, 2000 letter following the hearing before the Faculty-Student Disciplinary Committee at which he participated. Similarly, and although Gardner does not allege the date of any allegedly discriminatory housing decisions, it appears that those decisions occurred on or before the March 23, 2000 hearing date. His injuries pursuant to the ADA and the Rehabilitation Act therefore all occurred on or before March 23, 2000, which is more than four years before his complaint was filed in the Eastern District on March 25, 2004. Because, as discussed above, each of these claims is subject to a three-year statute of limitations, each is time-barred.
Gardner refers to his housing denial in the context of events leading up to his removal from the wrestling team. (Compl. ¶¶ 10, 25). See also Gardner v. Gaudenzi, 05 Civ. 3351, Order of Partial Dismissal at 4 (S.D.N.Y. Mar. 30, 2005).
In response to defendants' motion, Gardner now appears to argue that his discrimination challenge is not brought against Hunter's decision to censure him, but rather is brought against Hunter's subsequent review of that decision. However, the ADA and Rehabilitation Act provisions under which he sues prohibit only the substantive discriminatory denial of access to certain accommodations and programs. See 42 U.S.C. §§ 12132, 12182; 29 U.S.C. § 794. The process by which such denials were reviewed are not properly part of his ADA and Rehabilitation claims. Nor can Gardner maintain that any internal appeal by him tolled the statute of limitations for his substantive discriminations claims, because such internal appellate review is insufficient as a matter of law to trigger equitable tolling. See Morse v. University of Vermont, 973 F.2d 122 (2d Cir. 1992) (where disabled student was terminated from masters program, internal administrative review of University's allegedly discriminatory decision had no effect on when the statute of limitations for Rehabilitation Act claim period began to run); cf. Babiker v. Ross Univ. Sch. of Med., No. 98 Civ. 1429, 2000 U.S. Dist. LEXIS 6921, at *32 n. 15 (S.D.N.Y. May 19, 2000) (section 1981 claim against medical school dismissed where student was dismissed from school beyond the statutory time period, even though plaintiff's internal appeal of his discharge occurred within the statutory time period).
Finally, Gardner's claim pursuant to 42 U.S.C. § 1981 is also time-barred. Gardner appears to claim that he was discriminated against on the basis of his race in the making and enforcement of a contract — the alleged contract by which he would agree to abide by certain conditions in order to continue on the wrestling team. However, that contract was offered to him in December 1999 and did not continue past that time. That claim, subject as it is to a three-year statute of limitations, see Patterson, 375 F.3d at 225, expired in December 2002 and is therefore time-barred. C. Gardner Has Not Stated A Section 1983 Claim
Gardner appears to advance as an additional argument that the statute of limitations should be tolled because he is mentally ill. See Pl.'s Opp. at ¶ 29 ("I request this court to deny defense's motion to dismiss amended complaint . . . [b]ased on the fact I am poor and mentally ill."). Although mental illness is on its own insufficient for equitable tolling purposes, tolling is appropriate if a plaintiff is insane at the time the cause of action accrues and is "unable to protect [his] legal rights because of an overall inability to function in society." McCarthy v. Volkswagen of Am., 55 N.Y.2d 543, 548 (1982); N.Y.C.P.L.R. § 208. Here, however, Gardner does not allege that his mental illness rose to the level of insanity nor that any such illness impeded his ability to function in society. The complaint is insufficient on its face to merit equitable tolling.
Gardner has failed to state a procedural due process claim pursuant to 42 U.S.C. § 1983. The Fourteenth Amendment to the U.S. Constitution prevents states from depriving individuals of life, liberty, or property without due process of law. Accordingly, to state a section 1983 claim for a procedural due process violation, a plaintiff must establish that he has been deprived of one of those protected interests. Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 643, 119 S. Ct. 2199, 144 L. Ed. 2d 575 (1999). Gardner's alleged injuries do not involve the deprivation of life or liberty, and he therefore must establish that he has been deprived of a property interest. Property interests are "created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 84 L.Ed. 2d 494, 105 S. Ct. 1487 (1985) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 33 L.Ed. 2d 548, 92 S. Ct. 2701 (1972)) (internal quotation marks omitted). In order to have "a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it."Roth, 408 U.S. at 577.
Applying these precepts, the United States Supreme Court has held that where a state affords to its citizens the right to a public education, education in that state is a property interest that cannot be withheld from a citizen without due process of law. See Goss v. Lopez, 419 U.S. 565, 572-73, 95 S. Ct. 729, 42 L. Ed. 2d 775 (1975). Here, however, Gardner has not been deprived of his state-bestowed right to a public education but rather solely of the ability to wrestle for or live in student housing at Hunter. Participation in such particular components of academic or extracurricular life, unlike participation in public education more generally, is not protected by federal or New York law; nor does the Court know of nor does Gardner reference any other "independent source" from which his entitlement to participate in college wrestling or to student housing derives.Loudermill, 470 U.S. at 538; Roth, 408 U.S. at 577.
To the contrary, courts in this circuit and elsewhere have held that due process need not accompany a public school's decision to remove a student from involvement in extracurricular activities.See, e.g., Seamons v. Snow, 84 F.3d 1226, 1234-35 (10th Cir. 1996) (no property interest in membership on football team);Walsh v. Louisiana High School Athletic Ass', 616 F.2d 152, 156 (5th Cir. 1980) (due process clause does not protect participation in interscholastic sports); Mazevski v. Horseheads Cent. Sch. Dist., 950 F. Supp. 69, 72-73 (W.D.N.Y. 1997) ("[I]t is only when a student is excluded from the entire educational process that due process must be afforded. His exclusion from a particular course, event or activity is of no constitutional import."). Not being entitled under state or other law to participate as a matter of right in college athletics or to live in student housing, Gardner has not been deprived of property without due process of law. Accordingly, he has failed to state a claim pursuant to 42 U.S.C. § 1983 for a violation of his constitutional right to due process.
D. Gardner's Claims Pursuant to 42 U.S.C. §§ 1985 and 1986 Have Previously Been Decided
Chief Judge Mukasey previously dismissed, with prejudice, Gardner's claims pursuant to 42 U.S.C. §§ 1985 and 1986, see Gardner v. Gaudenzi, 05 Civ. 3351, Order of Partial Dismissal at 2-3 (S.D.N.Y. Mar. 30, 2005) and plaintiff has not in his amended complaint pled any further facts in support of those claims. Accordingly, pursuant to the law of the case doctrine,see Arizona v. California, 460 U.S. 605, 618 (1983), those claims are dismissed.
II. CONCLUSION
As set forth above, Gardner's claims pursuant to Titles II and III of the Americans With Disabilities Act, Section 504 of the Rehabilitation Act, and 42 U.S.C. § 1981 are all barred by the relevant statutes of limitations. Additionally, Gardner has not stated a claim pursuant to 42 U.S.C. §§ 1983, 1985 and 1986. Therefore, defendants' motion to dismiss the amended complaint is hereby granted.