United States District Court, D. Arizona
G. Campbell United States District Judge
the State of Arizona, Arizona State University
(“ASU”), ASU Board of Regents
(“ABOR”), ASU School of Art, ASU Professors
Adriene Jenik, Betsy Schneider, Julie Anand, and Mark Klett,
and a representative of ASU's Office of Student Rights
and Responsibilities (Dawn Russo), have moved to dismiss
under Rule 12(b)(1), (5), and (6). Doc. 24. The motion is
fully briefed and no party requests oral argument. Docs. 27,
31. For the reasons stated below, the Court will grant the
motion and grant Plaintiff's request for leave to
purposes of this motion, Plaintiff's factual allegations
are accepted as true. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Plaintiff Lee Krist enrolled in a graduate
photography program at the ASU School of Art in July 2015.
Doc. 19 ¶ 13. He received a teaching assistantship
(“TA”) position, which covered 80% of his tuition
and provided a stipend of $3, 000 per semester. Id.
Plaintiff is “a transgender man who experienced many
medical issues” while enrolled at ASU, including
post-traumatic stress disorder, depression, anxiety, suicidal
ideation, and multiple surgeries. Id. ¶¶
15, 18, 19, 35, 38. In September 2015, he registered with
ASU's Disability Resource Center (“DRC”) and
requested accommodations. Id. ¶ 22. ASU granted
an accommodation allowing him to arrange flexible assignment
deadlines with his professors. Id. ¶ 23. In
November 2018, Plaintiff left Professor Anand's class
early after “several fellow graduate students bullied
and demeaned” him and Professor Anand did not
intervene. Id. ¶ 24. He notified Professor
Anand and Professor Jenik, then head of the School of Art and
Plaintiff's mentor, about the incident, but his concerns
went unaddressed. Id. ¶¶ 24-26.
December 2015, Plaintiff was again demeaned in class.
Id. ¶ 28. He then decided “to let his
peers and professors know that he was having medical issues
that affected his work output.” Id. ¶ 29.
In January 2016, Plaintiff decided to reduce his course load
and delay graduation. Id. ¶ 31. Professor
Schneider agreed that Plaintiff could participate in her
class without enrolling in it. Id. Plaintiff
requested that this information be kept confidential.
Id. The next month, on a day when Plaintiff was
absent, Professor Schneider informed the class that Plaintiff
was auditing her course and that he was only enrolled in one
course that semester. Id. ¶ 33.
February 23, 2016, Plaintiff was hospitalized after having
surgery. Id. ¶¶ 35-36. Professor Jenik
visited Plaintiff in the hospital to discuss Plaintiff's
concerns about Professor Schneider. Id. ¶ 36.
Shortly thereafter, Plaintiff received an e-mail from
Professor Schneider inviting him to return to class and
asking to discuss “the tone of his last email.”
Id. ¶ 37. During the next few months,
Plaintiff's health problems worsened, and his concerns
regarding bullying and discrimination went unresolved.
Id. ¶¶ 38-47. On April 28, 2016, a fellow
graduate student sent an e-mail to Plaintiff, Professor
Schneider, and Plaintiff's colleagues “questioning
[Plaintiff's] inclusion and participation in the”
program. Id. ¶ 42. Plaintiff reported the
e-mail to Professor Klett, but received no response.
Id. ¶ 43. On May 19, 2016, the ASU Office of
Equity and Inclusion opened an investigation of
Plaintiff's complaints. Id. ¶ 48.
2 and 3, 2016, Plaintiff called the ASU mental health crisis
line multiple times, and the police were sent to his
residence for a welfare check. Id. ¶ 49. The
following week, the ASU administration held meetings with the
DRC, ASU's counseling center, and Professor Jenik, to
discuss Plaintiff's situation. Id. Plaintiff
left Phoenix on June 21 to present at a conference in New
York, but continued to communicate with Professor Jenik
regarding accommodations. Id. ¶¶ 49-50.
Professor Jenik informed Plaintiff that he would need a
“seriously mentally ill” (“SMI”)
diagnosis to receive the accommodations he was requesting.
Id. ¶ 49. On July 25, Professor Jenik informed
Plaintiff that his request to spend the fall semester in New
York was denied. Id. ¶ 52. On July 29,
Plaintiff e-mailed Professor Jenik photographs that he had
taken at a photo shoot in New Jersey. Id. ¶ 54.
The School of Art characterized one of the photographs as
threatening, and reported it to police. Id. ¶
August 1, 2016, Ms. Russo informed Plaintiff of his interim
suspension and prohibition from entering the ASU campus
because of a pattern of threatening and problematic behavior,
including sending an e-mail to a faculty member with a
picture of a “puppet holding a gun and a note.”
Id. ¶ 56. On the same day, Professor Jenik
rescinded Plaintiff's TA position because he was not in
good academic standing. Id. Plaintiff alleges that
Professor Jenik had decided to ban Plaintiff from campus and
notified Plaintiff's peers of this decision two days
before Plaintiff sent the allegedly threatening email.
Id. ¶ 64. Plaintiff has not returned to Arizona
since he left in June 2016. Id. ¶ 50.
filed this suit on July 28, 2017. Doc. 1. Plaintiff's
amended complaint asserts claims for deprivation of civil
rights under 42 U.S.C. § 1983, and state-law wrongful
termination, intentional infliction of emotional distress,
and false light invasion of privacy/defamation. Id.
¶¶ 66-105. Plaintiff seeks injunctive relief and
compensatory and punitive damages. Id. ¶ 105.
Arizona, governmental entities “possess only those
powers and duties delegated to them by their enabling
statutes, ” and therefore “may be sued only if
the legislature has so provided.” Braillard v.
Maricopa Cty., 232 P.3d 1263, 1269 (Ariz.Ct.App. 2010).
Defendants concede that ABOR can be sued pursuant to A.R.S.
§ 15-1625(B)(3), but they argue that no statute
authorizes suits against ASU or the School of Art. Doc. 24 at
7. A.R.S. § 15-1601 enables ABOR to create and maintain
ASU, but contains no indication that ASU or its schools and
departments may be sued. See Lazarescu v. Ariz. State
Univ., 230 F.R.D. 596, 601 (D. Ariz. 2005) (“The
effect of Arizona Revised Statutes §§ 15-1601 and
15-1625 is clear. Arizona State University cannot be subject
to suit because the Arizona Legislature has not so provided.
However, [ABOR] is an entity subject to suit pursuant to
argues that “over the recent years, [ASU] has acted as
its own entity aside from [ABOR] and these actions should
warrant a new look at the interpretation of the
statutes.” Doc. 27 at 7. Plaintiff asserts that ASU has
“acted as an entity with its own inherent power through
contracts, grants, and other activities, ” but does not
otherwise elaborate on this argument or provide legal
authority to support it. Id. at 8. Plaintiff also
argues that ASU and the School of Art have taken actions
“arguably akin to a county or city in that they are in
essence acting on their own as governmental entities, ”
and therefore can be held liable under Monell v.
Department of Social Services of City of New York, 436
U.S. 658 (1978). Doc. 27 at 7-8. But Monell did not
extend § 1983 liability to non-jural state entities.
Court will dismiss the claims against ASU and the School of
Art because Plaintiff has not shown that they are jural
entities separate from ABOR. See Kimball v.
Shofstall, 494 P.2d 1357, 1359 (Ariz. 1972) (A
governmental entity is non-jural when “[n]either the
constitution nor the statutes ...