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Schwake v. Arizona Board of Regents

United States District Court, D. Arizona

March 29, 2018

David Otto Schwake, Plaintiff,
Arizona Board of Regents, et al., Defendants.


          Honorable Steven P. Logan United States District Judge

         Before the Court is Defendants' Motion to Dismiss. (Doc. 49.) For the reasons set forth below, the motion is granted.

         I. Background

         Plaintiff David Otto Schwake was a graduate student at Arizona State University (“ASU”) pursuing a Ph.D. in microbiology. (Doc. 47 at 2.) “Plaintiff has become well known in his field as a promising up and coming young researcher whose work has been featured in hundreds of local, national and international news outlets.” (Id. at 3.) Plaintiff worked in the laboratory of Dr. Morteza Abbaszadegan as a graduate student researcher from March 2011 until December 2014. (Id. at 2-3.) Plaintiff worked regularly in Dr. Abbaszadegan's laboratory with other Ph.D. students, including Lauren McBurnett. (Id. at 3.) According to Plaintiff, he and McBurnett had “a relationship that oscillated between being professional coworkers and dozens of romantic encounters.” (Id.)

         On August 14, 2014, Plaintiff received a first notice letter from Defendant Norean Sablan stating that ASU's Office of Students Rights and Responsibilities had received a complaint from McBurnett and that the following disciplinary charges were pending against Plaintiff, including (1) “failure to comply with directions of university officials or agents”; (2) “engaging in unwanted repeated or significant behavior toward another individual”; and (3) “sexual misconduct.” (Id. at 4.) The letter also included a “no-contact directive” with McBurnett that Plaintiff was to abide by. (Id.) Plaintiff met with Defendant Sablean the following day, at which time she “merely summarized the complaint verbally.” (Id. at 5.) Plaintiff was told that the no-contact directive included attendance at seminars or conferences which McBurnett would be attending. (Id.) Dr. Abbaszadegan created a lab-sharing schedule for Plaintiff and McBurnett that would allow Plaintiff to continue his research while abiding by the no-contact directive. (Id.) A second meeting with Defendant Sablan on August 22, 2014 focused on the sexual misconduct allegations against Plaintiff. (Id.) At Defendant Sablan's request, Plaintiff provided her “with a four page document entitled ‘The Event' which presented his side of the most serious allegations from that [sic] that he touched her breasts without her consent while she was asleep sometime between March 26 and 27, 2014.” (Id. at 6.) Plaintiff maintains that his “intimate contacts” with McBurnett were consensual. (Id.)

         On September 5, 2014, Defendant Sablan informed Plaintiff “that he had been found responsible for violating all three Student Code of Conduct sections and that he was suspended until Fall 2017 effective immediately.” (Id.) In the wake of Plaintiff's suspension, Plaintiff alleges that Defendant Thomas Seager, a professor at ASU, repeatedly discussed Plaintiff's disciplinary case with other students. (Id. at 7.) Plaintiff's counsel informed ASU's Dean of Students, Defendant Kevin Cook, on October 2, 2014 that Plaintiff sought “a hearing to review the finding of responsibility and the sanction of suspension.” (Id. at 8.) Defendant Castle, a professor at ASU, emailed Plaintiff questions regarding his upcoming hearing on October 12, but acknowledged in his subsequent response that he knew Plaintiff was represented by counsel on the matter. (Id. at 8.) On October 14, 2014, McBurnett obtained an injunction against harassment against Plaintiff in the San Marcos Justice Court. (Id. at 9.) Plaintiff was served with the injunction a few days later while at a tailgate party at which both Plaintiff and McBurnett were present. (Id.) On October 16, Plaintiff “was removed from the lab without warning or explanation.” (Id.) Two days later, Plaintiff e-mailed Dr. Abbaszadegan and requested that he relay a message to administration requesting that Plaintiff be given access to the lab. (Id. at 10.) Plaintiff was placed on interim suspension on November 3 by Defendant Hicks-Associate Dean of Students at ASU-after it had been reported that he had been at the lab on October 20, which “if found to be true, violated two [additional] provisions of the ABOR Student Code of Conduct.” (Id.)

         Plaintiff's hearing on the matter was scheduled for December 12, 2014. (Id. at 11.) On December 3, Defendant Hicks informed Plaintiff that a “mutually beneficial compromise” had been reached to allow Plaintiff to finish his degree and graduate. (Id. at 12.) Rather than suspension until fall 2017, Plaintiff would be allowed to graduate but a three-year campus access restriction to the lab would be in effect and Plaintiff would not be allowed to hold any post-doctoral, paid, or volunteer positions until spring 2018. (Id. at 12-13.) Plaintiff was told the decision was final and that there would be no hearing or appeals process because it did “not involve a suspension, expulsion, or degree revocation.” (Id. at 13.) Plaintiff did, in fact, graduate from ASU. (Id. at 14.)

         Plaintiff alleges that Defendants' actions “halted Plaintiff's career at a critical time for a young scientist establishing himself in his field of research” and have left him severely disadvantaged in terms of securing future grant funding, future employment prospects, and hampered his ability to publish academic scholarship. (Id.) Specifically, Plaintiff alleges that Defendants' actions have compromised his reputation as a reliable scholar because he was forced to cancel collaborations with other researchers as a result of his campus access restrictions and inability to complete his post-doctoral position in Dr. Abbaszadegan's lab at ASU. (Id. at 15.)

         In connection with the events described, Plaintiff has filed suit against the following entities and individuals: Arizona Board of Regents (“ABOR”), in its official capacity; Michael M. Crow in his official capacity as the President of ASU; Kevin Cook in his official capacity as the Dean of Students at ASU; Norean Sablan in her official capacity as a Coordinator for the Office of Student Rights and Responsibilities at ASU and in her personal capacity; Ron Hicks in his official capacity as Associate Dean of Students at ASU and in his personal capacity; Gregory Castle in his official capacity as a professor at ASU and in his personal capacity; and Thomas Seager in his official capacity as a professor at ASU and in his personal capacity (collectively, “Defendants”). (Doc. 47 at 2.) Plaintiff seeks $20 million in compensatory damages and punitive damages. (Id. at 20.)

         II. Standard of Review

         To survive a motion to dismiss, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” such that the defendant is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Court may dismiss a complaint for failure to state a claim under Federal Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, and (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacificia Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

         A complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). Facial plausibility requires the plaintiff to plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557). Although a complaint “does not need detailed factual allegations, ” a plaintiff must “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. This requires “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Id.

         In deciding a motion to dismiss the Court must “accept as true all well-pleaded allegations of material fact, and construe them in the light most favorable to the non-moving party.” Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). In comparison, “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences” are not entitled to the assumption of truth, id., and “are insufficient to defeat a motion to dismiss for failure to state a claim.” In re Cutera Sec. Litig., 610 F.3d 1103, 1108 (9th Cir. 2010) (internal citation omitted). A plaintiff need not prove the case on the pleadings to survive a motion to dismiss. OSU Student All. v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012).

         III. ...

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