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Flunder v. Arizona Board of Regents

United States District Court, D. Arizona

April 7, 2014

Gerald L. Flunder, Plaintiff,
Arizona Board of Regents, et al., Defendants.


DAVID G. CAMPBELL, District Judge.

Defendants Dr. Cummings and Dr. Chhabra ("Doctor Defendants") have filed a motion to dismiss the claims against them. Doc. 9. The Arizona Board of Regents and other Defendants affiliated with Arizona State University ("ASU") (collectively, the "University Defendants") have also filed a motion to dismiss that the Doctor Defendants have joined. Docs. 11, 14. The motions have been fully briefed. Docs. 24, 25. For the reasons stated below, the Court will grant the motions.

I. Background.

Plaintiff Gerald Flunder was a walk-on member of the ASU's football team in 2007. Doc. 1, ¶ 16. He was cut after failing to meet the team's academic standards, but rejoined the team in 2008. Id. Unfortunately, during practice on November 19, 2008, Plaintiff suffered a serious left-knee injury that included torn ligaments and damage to the peroneal nerve. Id., ¶ 19. Dr. Cummings, a sports medicine consultant to ASU's athletics teams, examined Plaintiff's knee and immediately expressed concern about damage to the peroneal nerve, noting that if the nerve failed to regenerate after surgery, Plaintiff's football career would be over. Id. Dr. Cummings examined Plaintiff again on November 20 and 24, 2008. Id., ¶¶ 30, 33. Plaintiff was also seen by Dr. Steven Erickson, ASU's Head Team Physician, on November 21, 2008, id., ¶ 31, and by Dr. Chhabra on December 4, 2008, id., ¶ 34. Although Plaintiff alleges that notes from the three doctors were inconsistent in some ways, all three found peroneal nerve damage.

On December 12, 2008, Dr. Cummings performed surgery on Plaintiff's knee. Id., ¶ 49. The same day, Dr. Cummings informed Plaintiff's parents that if the peroneal nerve was damaged and could not regenerate, Plaintiff's football career would be over. Id., ¶ 75. The surgery successfully repaired all of the torn ligaments in the knee, and it appeared that the peroneal nerve was not damaged. Id., ¶ 77. However, three days later on December 18, Dr. Cummings noted "patchy sensation" related to the peroneal nerve, id., ¶ 80, and on December 22, again noted sensation loss, id., ¶ 82. Although Plaintiff's knee continued to improve, symptoms of nerve damage persisted. Id., ¶¶ 84, 86-98. By October 2009, Plaintiff's assessment plans characterized his peroneal nerve damage as "chronic." Id., ¶ 99. An additional surgery was performed on Plaintiff's knee on October 8, 2009 to remove scar tissue that had formed around the nerve and had prevented it from regenerating. Id., ¶ 101.

Plaintiff noted improvement during physical therapy after the second surgery. Id., ¶¶ 102-108. Nevertheless, during a visit to Dr. Chhabra on January 25, 2010, Dr. Chhabra noted that Plaintiff would "not be playing football." Id., ¶ 109. By March 2010, doctors noted that Plaintiff "has not changed in progress regarding his peroneal nerve injury but his knee is doing well, " and discussed life after football with Plaintiff. Id., ¶113. Plaintiff alleges that he was cleared to start jogging in June 2010, but that this clearance was not retained in his medical records, and Defendant Erickson, as head team physician, refused to let Plaintiff run with the team, noting that the clearance was only for self-paced jogging and not participation in team workouts. Id., ¶¶ 117-25.

On March 21, 2011, Plaintiff and his mother met with Defendants Erickson, Chhabra, and Martin. The doctors informed Plaintiff that his recovery was "substantial but incomplete, " that he presented a high risk for further injury if he engaged in high-level athletic activities, and that he would not ever be cleared to return to football at ASU. Id., ¶ 129. At that meeting, Plaintiff's mother asked to speak to someone in ASU's legal department, but this request was denied. Id., ¶¶ 130-31.

Despite this news from ASU doctors and administrators, Plaintiff continued to work to rehabilitate his knee and, in August 2011, demonstrated to Defendant Chhabra that he could do squats and walk on his heels and toes without pain. Id., ¶ 143. Nevertheless, Dr. Chhabra did not clear him to play football, stating he had not made a 100% recovery. Dr. Chhabra told Plaintiff that he would never clear him to play. Id. At this point, Plaintiff alleges, he and his mother and trainer "realized this was a racial and retaliation issue." Id.

Plaintiff met with Dr. Cummings on September 7, 2011 to request a clearance to play football again, but did not receive one. Similarly, on September 12, 2011, Dr. Chhabra noted that Plaintiff would not be cleared to return to football due to risk of injury. Id., ¶¶ 151-52.

Plaintiff persisted. In January 2012, Plaintiff called Dr. Cummings' office and spoke to a medical assistant about getting a medical clearance to play football. Id., ¶ 157. The assistant asked Plaintiff what he wanted Dr. Cummings to say on the clearance, Plaintiff replied that he wanted it to say "OK to return to play football, " and on January 20, 2012, Plaintiff received a release from Dr. Cummings' office that stated he was "OK to play All Sports OK to play Football." Id., ¶ 157. On February 1, 2012, however, Cummings notified ASU that there was "an inappropriate note sent... I did not clear him to play." Id., ¶ 161. Dr. Cummings did not, in fact, have any authority to clear Plaintiff to play football. Id., ¶ 173. The medical assistant that Plaintiff had spoken to was later fired by Dr. Cummings. Id., ¶ 189.

Following this clarification by Dr. Cummings, Plaintiff tried numerous times to meet with and convince administrators in ASU's athletic department to clear him to play football, all to no avail. Id., ¶¶ 153, 157, 175-187. Plaintiff also received phone calls and letters from Dr. Cummings clarifying the mistake in sending the Sports Release. Id., ¶¶ 189-93. In March, April, and May of 2012, Plaintiff received a series of letters from ASU administrators and officials reiterating that he was not eligible to play football at ASU due to his injury. Id., ¶¶ 199, 203, 206-07.

Plaintiff filed this suit on September 12, 2013, seeking one hundred million dollars and declaratory relief allowing him to play football at ASU. In a 137-page complaint, he alleges claims for (1) race discrimination under 42 U.S.C. § 1981 for not being cleared to play football, (2) retaliation under 42 U.S.C. § 1981, (3) equal protection violation under 42 U.S.C. § 1983 for not being cleared to play football, and (4) retaliation under 42 U.S.C. § 1985 for refusing to let Plaintiff and his mother speak to ASU's legal department.

Defendants move to dismiss Plaintiff's claims under Rules 8(a) and 12(b)(6), arguing that the claims are barred by the statute of limitations, barred by the Eleventh Amendment and sovereign immunity, barred by qualified immunity as to individual defendants, and fail to state claims under §§ ...

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