Opinion
Civil Action No.: 00-264-CB-C
January 30, 2001
FINAL JUDGMENT
Pursuant to separate order entered this date granting the Defendants' motion for summary judgment, it is hereby ORDERED, ADJUDGED, and DECREED that the claims of the Plaintiff, VIRGINIA FRANCES HAMMOCK, against the Defendants, LARRY KEYS, et al., be and hereby are DISMISSED with prejudice.
ORDER
This matter comes before this Court on "Defendant's Motion For Summary Judgment" (Docs. 20, 21 and 22).
I. Background A. Procedural
On December 6, 2000, this Court notified the above-styled parties that "[a]ny party opposing the motion must respond in the manner set out in Rule 56 of the Federal Rules of Civil Procedure and Local Rule 7.2 within twenty (20) days from the date the motion is filed." (Doc. 23). This Court informed the parties that the motion for summary judgment would be taken under submission on January 8, 2001, and that failure to respond "may result in final judgment being rendered in favor of the party who filed the motion, without a full trial." Id. Thus, based on the briefs and supplementary evidentiary materials submitted by the parties, the Court makes the following findings of fact and conclusions of law.
B. Findings of Fact
On February 11, 2000, Anthony Grisby, an Orange Beach police and D.A.R.E. officer, and John Hamrick, a Gulf Shores police officer, along with Ernie Rosado, an Assistant Principal, conducted a search with canines in the Gulf Shores High School parking lot. The search was conducted after school officials received numerous reports there was a "drug problem" in the parking lot. After two different dogs alerted on Hammock's vehicle, Rosado notified Assistant Principal Toni Stanton, who then got the Plaintiff from her classroom. While in the hallway, Rosado explained to the Plaintiff what had occurred in the parking lot. Rosado testified that the Plaintiff was "stunned," and that she reentered the classroom to get her keys to the vehicle. Rosado also testified that while retrieving her keys Plaintiff told another student "Oh, I am going to be expelled." Plaintiff requested that she be permitted to call her parents. She was not permitted to call her parents until after the vehicle was opened and searched.
It is undisputed that marijuana was found in the vehicle. A certain quantity of the fragments were field tested on site, the results of which indicated that the material was marijuana. Another quantity was later confirmed to be marijuana by a lab test. The exact amount of marijuana is unknown. Officer Grisby testified that a "small amount" of the substance was found and that it consisted of a "leafy residue." He would not rule out that it could have come from someone's clothing or shoes, but he also indicated that the amount and type found was consistent with a scenario in which one dropped marijuana when rolling a "joint" or filling a pipe. Officer Hamrick testified that the material was found on both the passenger and driver sides of the floorboard and described the fragments as "seeds, stems, and leaves." Hamrick also testified that the amount of residue led him to believe that marijuana was used in the vehicle more than once.
After the search, Plaintiff was sent to the school office. Rosado indicates that she was given an opportunity to discuss the incident and her parents were notified. Once Plaintiffs parents arrived, Rosado explained to them what had occurred. The Disciplinary Referral form completed on February 11, 2000, indicates that Plaintiff was suspended for ten days denoting the dates of suspension as February 11 14-24. Upon suggestion of her parents, Plaintiff refused to sign the Disciplinary Referral form and she left school. There is some dispute as to whether she left on her own or at her parent's discretion, or if she was directed to leave by school officials. However, it is clear that she left at 1:45 p.m. and received credit for the day with the exception of the last period.
On February 14, 2000, Principal Larry Keys sent a letter to Plaintiff's father which confirmed the suspension for "possession of inappropriate material." The letter references the Baldwin County Public School Board Policies on drug possession and indicates that expulsion would be pursued. An "Expulsion Notice" and a police report prepared by Officer Hamrick were also presented to the Hammocks on this date. The police report states that "marijuana residue [found in the Plaintiffs vehicle] was field tested and showed positive for THC." The expulsion notice states: "If you desire to discuss the reasons for this action or to request an administrative hearing, you are required to contact Mr. Rosado . . . within five (5) days of the date on this notice. Although not required, you and your students have the right to be represented by legal counsel and present witnesses." A hearing was requested as indicated by a February 22 letter by Keys which notifies the Hammocks of the time and place of the hearing and again advises that the Plaintiff could "bring any witness(es) that [she chose]." The letter also instructs the Hammocks to notify the school if they would be represented by counsel.
A hearing was held on February 24, 2000, before Principal Keys and Assistant Principal Rosado. The Plaintiff and her parents were in attendance and were represented by counsel. No evidence was presented to support the expulsion. However, Keys told Plaintiffs attorney that he would hear and consider any facts, evidence or material that he wished to present. It is unclear whether any evidence was presented by Plaintiff, but it is clear that Plaintiff had the opportunity to present such evidence.
On February 28, 2000, Keys wrote a letter to Plaintiff's parents regarding the February 24th hearing. The letter states that "[i]t is my determination that Miss Hammock be expelled from Gulf Shores High School . . . and that she be permitted to attend the Alternative School in Bay Minette." The letter also states that Gulf Shores High School would provide the textbooks and materials necessary to complete Plaintiff's work at the Alternative School and advises Plaintiff of her right to appeal this determination to Dr. Albert D. Thomas, the Superintendent of the Baldwin County Board of Education.
On March 3, 2000, a hearing was held before Superintendent Thomas. Both Plaintiff and the School Board were represented by counsel. The charges were again presented to Plaintiff. According to Thomas, no witnesses were called by the Plaintiff; and Plaintiffs counsel made arguments to suggest that the fragments found in the vehicle were alfalfa fragments. Plaintiff's counsel also presented the package from which the "blue pill" allegedly came. According to testimony elicited at the preliminary injunction hearing, Thomas did not look at the package. Plaintiff also presented a report to Thomas indicating that she had no illegal drugs in her system on February 18, 2000, seven days after the incident. Thomas questioned the Plaintiff, and she stated that she did not know about the fragments nor had she smoked marijuana in the vehicle. On March 8, 2000, Dr. Thomas wrote a letter to the Hammocks informing them that the expulsion of Plaintiff would be upheld and suggesting that they consider the option of the Alternative School, which the Plaintiff; for reasons not presented in the record, has elected not to attend.
II. Discussion A. Summary Judgment Standard of Review
Pursuant to RULE 56(c) of the FEDERAL RULES OF CIVIL PROCEDURE, summary judgment should be granted only if "there is no issue as to any material fact and the moving party is entitled to judgment as a matter of law." The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file that there are no genuine issues of material fact that should be decided at trial." See Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party has satisfied its burden, then the burden shifts to the nonmoving party to show the existence of a genuine issue of material fact. Id. If the nonmoving party fails to make "a sufficient showing on an essential element of its case with respect to which she has the burden of proof;" the moving party is entitled to summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Otherwise stated, the non-movant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark, 929 F.2d at 608. In so doing, the nonmoving party may not rest on the pleadings alone. See Celotex at 324. Rather, the nonmoving party must designate "specific facts" and employ affidavits, or by the "depositions, answers to interrogatories, and admissions on file," show that there is a genuine issue for trial. See id.; Weiss v. School Board of Hillsborough County, 141 F.3d 990, 994 (11th Cir. 1998); and, Hoffman v. Allied Corp., 912 F.2d 1379, 1382 (11th Cir. 1990).
Here, the Plaintiff has failed to file a Response to the Defendants' motion for summary judgment. Because, however, there is no such thing as a default summary judgment under FED. R. Civ. P. RULE 56(e), the Plaintiffs failure to timely respond to the motion does not automatically entitle the Defendants to summary judgment in their favor. Indeed, even though failure to respond to a motion for summary judgment results in waiver of the right to present evidence in opposition to the motion, the moving party must still show from the pleadings and the evidence that summary judgment is appropriate. Additionally, as stated in Bivins v. Jeffers Vet Supply, 873 F. Supp. 1504 (M.D. Ala. 1994):
[i]n federal court, a plaintiff may not merely `rest on its pleadings' and survive summary judgment. Fed. Rule Civ. Proc. Rule 56(e) states in part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
Further, a trial court should grant a motion for summary judgment only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See FED. R. Civ. P. RULE 56. Because the Plaintiff did not file any response or present any evidence to rebut the Defendants' motion, summary judgment shall be entered against that party if appropriate — upon this Court's determination as to whether the Defendants demonstrated that there is no genuine issue of material fact. See e.g, The Bradley Factor Inc. v. United States, 86 F. Supp.2d 1140 (M.D. Fla. 2000); and, Pulte Home Corp., Inc. v. Ply Gem Industries, Inc., 804 F. Supp. 1471, 1483 (M.D. Fla. 1992). Accordingly, this Court considers whether the record supports a grant of summary judgment in favor of the Defendants.
B. Application 1. Unopposed Motion For Summary Judgment
At the outset, this Court notes that the Plaintiff fails to make a sufficient showing on the essential elements of her case despite notice by this Court, on December 6, 2000, that: 1) "[a]ny party opposing the motion must respond in the manner set out in Rule 56 of the Federal Rules of Civil Procedure and Local Rule 7.2 within twenty (20) days from the date the motion is filed[;]" 2) that "[t]he evidence submitted by the party who filed the motion may be accepted as the truth if not so contradicted;" and 3) failure to respond "may result in final judgment being rendered in favor of the party who filed the motion, without a full trial." (Doc. 23). See e.g., Lamey v. Krecker, 2000 WL 1005822, 1 (S.D. Ala. 2000). Moreover, this Court's LOCAL RULE 7.2 provides that failure to respond to a motion for summary judgment "will be considered an admission that no material factual dispute exists." See e.g., Charley v. United States Postal Service, 2000 WL 549985, 1 (S.D. Ala. 2000); and,Tedder v. National Con-Serv Inc., 2000 WL 1135117, 2 (S.D. Ala. 2000).
2. Conclusions of Law
Plaintiff asserts federal claims against the Defendant under 42 U.S.C. § 1983, claiming her procedural and substantive due process rights as well as her equal protection rights, were violated, and that the regulations of the Baldwin County Board of Education were unconstitutionally vague and ambiguous. Moreover, the Plaintiff alleges these claims against Defendants Keys, Rosado, Stanton, and Thomas, in their individual capacities and these Defendants assert the defense of qualified immunity. Further, the Plaintiff asserts a state-law claim for the tort of outrage against Defendants Keys, Rosado, Stanton, and Thomas. These matters are thus addressed separately below.
a. Procedural and Substantive Due Process
The Plaintiff asserts a procedural due process violation concerning her suspension and expulsion. Concerning the Plaintiffs suspension, this issue is controlled by the United States Supreme Court decision in Goss v. Lopez, 419 U.S. 565 (1975). The Court in Goss described the requisite hearing as "an informal give and take between the student and disciplinarian, preferably prior to suspension." In this case, the actions of Assistant Principal Rosado gave the Plaintiff an opportunity to discuss the incident in the school office and Goss and due process required no more than what the Plaintiff was provided on February 11, 2000, prior to her suspension.
Concerning the Plaintiffs expulsion, this Court applies the authority in Dixon v. Alabama State Board of Education, 294 F.2d 150 (5th Cir. 1961) and determines that the two hearings afforded to the Plaintiff satisfied procedural due process. The first hearing was held on February 24, 2000 by Principal Keys and Assistant Principal Rosado where the Plaintiff was represented by counsel and was allowed to present evidence to negate the charges at that hearing. The second hearing was held before Superintendent Thomas on March 3, 2000. At that hearing, she was again represented by her attorney and was afforded the opportunity to call any witness that saw fit. Under these circumstances, this Court determines that she was afforded due process concerning her expulsion.
Moreover, this Court finds that the Plaintiff has not presented a situation which affords substantive due process protection. See C. B. v. Driscoll, 82 F.3d 383 (11th Cir. 1996). This Court notes that the decision to suspend and subsequently expel the Plaintiff was an executive one and that, therefore, her substantive due process claims are without merit.
b. Equal Protection
The Plaintiff asserts an equal protection claim. Smith v. Severn, 129 F.3d 419 (7th Cir. 1997) stands for the proposition that an equal protection violation occurs only when different legal standards are arbitrarily applied to similarly situated individuals. Plaintiff's only evidence in this regard was that a principal of an elementary school testified that she suspended five elementary students for three days after a parent found marijuana seeds at her home and it was later discovered that two weeks prior, the seeds were at school. This Court concludes that the Plaintiffs equal protection rights were not violated because the Rosington Elementary School students were not similarly situated to the Plaintiff; a high school senior.
c. Vagueness
The Plaintiff asserts a vagueness claim. Under Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) school disciplinary rules need not be as detailed as a criminal code which imposes criminal sanctions. Also in Woodis v. Westark Community College, 160 F.3d 435 (8th Cir. 1998) the Court held that under an "as applied" analysis, the question is whether under the circumstances the regulations were sufficiently precise to notify the student that her conduct could lead to expulsion. This Court finds that under this "as applied" analysis, the Plaintiff has not shown that the regulations were so imprecise that she was not on notice that her conduct could lead to expulsion.
d. Qualified Immunity
Individual Defendants Keys, Rosado, Stanton, and Thomas have asserted qualified immunity. In this case, Defendants Keys, Rosado, Stanton, and Thomas did not violate the Plaintiffs constitutional rights and their conduct occurred while they were acting within their discretionary authority. This exercise of discretion did not rise to the level of violation of specific constitutional guarantees. Under the undisputed facts of this case, therefore, Defendants Keys, Rosado, Stanton, and Thomas are entitled to qualified immunity as to the Plaintiffs civil rights claims.
e. Outrage
The Plaintiffs have also asserted a state-law "tort of outrage" claim against the individual Defendants Keys, Rosado, Stanton, and Thomas. The Alabama Supreme Court in Gray v. Liberty National Life Insurance Company, 623 So.2d 1156 (Ala. 1993) summarized the extremely high burden of proof required to support a claim of outrage in Alabama. As the Court stated:
Gray next argues that the trial court erred in entering the summary judgment for Liberty National on his claim alleging the tort of outrage. In order to sustain this claim, Gray must establish by substantial evidence that Liberty National, by extreme and outrageous conduct, intentionally or recklessly caused him sever emotion distress. American Road Service Co. v. Inmon, 394 So.2d 361 (Ala. 1980). "Extreme conduct" is defined as "conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society." Inmon, 394 So.2d at 365. The extreme conduct must result in emotional distress "so severe that no reasonable person could be expected to endure it." Id. Mere annoyances or indignities are not enough to make a defendant liable for extreme and outrageous conduct. Barrett v. Farmers Merchants Bank, 451 So.2d 257 (Ala. 1984). Id at p. 1160.
Moreover, two federal decisions have held that, under Alabama law, the tort of outrage is reserved for action such as wrongful conduct in the context of family burials, cases where insurance agents have employed barbaric means to coerce settlements and cases of egregious sexual harassment. See Pescia v. Auburn Ford-Lincoln Mercury, Inc., 68 F. Supp.2d 1269 (M.D. Ala. 1999); and, Carter v. Harris, 64 F. Supp.2d 1182 (M.D. Ala. 1999).
Applying the above stringent legal standards and, in considering that the Defendants Keys, Rosado, Stanton, and Thomas exercised their discretion, and in doing so, did not violate any constitutional rights of the Plaintiff; the tort of outrage claims asserted against these four Defendants are due to be dismissed and summary judgment is proper concerning this claim.
III. Conclusion
For the foregoing reasons, this Court finds and hereby ORDERS that there being no genuine issue of material fact, the evidence is insufficient to support the Plaintiffs claims, and as a matter of law the Defendants' motion for summary judgment as to all claims alleged in Plaintiffs complaint is due to be GRANTED so that Plaintiffs claims are thus dismissed with prejudice.