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Krist v. State

United States District Court, D. Arizona

March 30, 2018

Leopold Krist, also known as Lee Krist, Plaintiff,
v.
State of Arizona, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Defendants 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 amend.[1]

         I. Background.

         For 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.

         In 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.

         On 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.

         On June 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. ¶ 55.[2]

         On 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.

         Plaintiff 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.

         II. Analysis.

         A. Non-Jural Entities.

         In 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 § 15-1625.”).

         Plaintiff 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.

         The 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 ...


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