Waller v. Bd. of Regents of the Univ. Sys. of Ga.

1

SHANNON WALLER, JR., Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, et al., Defendants.

Civil Action No. 5:23-cv-232 (MTT)

United States District Court, M.D. Georgia, Macon Division

March 26, 2024

ORDER

MARC T. TREADWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT

Plaintiff Shannon Waller, Jr. claims he was improperly “removed” from the respiratory therapy program at Middle Georgia State University (“MGSU”), a unit of the University System of Georgia (“USG”). Doc 37 ¶¶ 1, 54. Relevant here, Waller's second amended complaint asserts a breach of contract claim against the Board of Regents of the University System of Georgia (the “Board”), 42 U.S.C. § 1983 procedural due process claims against various Board employees and a MGSU student in their individual capacities, and Rehabilitation Act (“RA”) and Americans with Disabilities Act (“ADA”) claims against those individuals in their official capacities and the Board.^[1]Id. ¶¶ 117-181. The Board defendants now move to dismiss Waller's claims against them. Doc. 40. For the reasons below, that motion (Doc. 40) is GRANTED.

I. BACKGROUND

A. Factual Background

Waller's factual allegations are hard to follow. The Court organizes those allegations by the claims, as best the Court can tell they are intended to support.

1. Allegations relevant to Waller's breach of contract claim

On June 8, 2020, Waller received, signed, and returned his letter of acceptance to MGSU. Docs. 37 ¶¶ 24-25; 37-2. Waller began MGSU's respiratory therapy program on August 12, 2020. Doc. 37 ¶ 26. On August 16, Waller signed the MGSU program handbook certifying that he received a copy, that he read and understood it, and that he agreed to adhere to its policies. Docs. 37 ¶ 27; 37-3. The program handbook requires students to abide by MGSU's policies, including the “Student Code of Conduct,” the University “Student Handbook,” and other MGSU “policies and procedures.”^[2]Docs. 37 ¶ 28; 37-4 at 6, 8. On November 1, 2021, Defendant Christopher Blake, as President of MGSU, signed the Student Government Association (“SGA”) Constitution; SGA involvement “requires signatories to ‘uphold the [MGSU] Student Handbook and Code of Conduct.'” Docs. 37 ¶¶ 29-30; 37-5 at 2. Waller contends these documents formed a contract with the Board “to abide by the policies and procedures of” MGSU. Doc. 37 ¶¶ 119, 126-128.

Waller alleges the Board “breached its contract with [him] by failing to follow the requirements of the Student Code of Conduct, the Academic Conduct Procedures, MG[SU]'s Syllabus for RESP 4125 for Spring 2022, and other written policies of MG[SU] and USG.” Id. ¶ 131. Waller does not expressly say in count one what procedures the Board failed to follow, nor does he say in count one when the breach occurred. It is evident, however, that the “breach” allegedly arose from a disciplinary proceeding, which is discussed below.

2. Allegations relevant to Waller's procedural due process claim

Here, Waller's allegations are particularly confusing. In part, this is because the allegations specifically pled are incomplete and often conflict with facts he incorporated into his second amended complaint.^[3]The Court recites first the facts Waller pleads and then the relevant facts he incorporates.

i. Facts pled

To graduate Waller apparently had to complete “RESP 4125,” a course that involved a clinical externship. Doc. 37 ¶¶ 42-43, 57-58, 81-82. Waller began his clinical externship at facilities owned and operated by Houston Healthcare System, Inc. and Houston Hospitals, Inc. (except when necessary to distinguish between the two, both are hereafter referred to as “Houston Healthcare”). Id. ¶¶ 6, 55, 57. On April 21, 2022, Waller says he “blew the whistle regarding [Houston Healthcare's] failure to use the appropriately sized cannula on a patient” who went into cardiac arrest, “caused, in part, by the inappropriately sized cannula.” Id. ¶¶ 44-46. On April 29, Defendant Teri Miller, MGSU's respiratory therapy program chair, emailed Waller and “suspended him indefinitely from his clinical rotation.” Id. ¶¶ 7, 55. Then, on May 4, 2022, Houston Healthcare “officially barred” Waller from its hospital(s). Id. ¶ 56.

On May 9 and May 10, 2022, Defendant Shanoya Cordew, the MGSU Student Conduct Coordinator, sent Waller letters “regarding alleged violations of the [MGSU] Student Code of Conduct” that allegedly occurred on April 22, 2022. Id. ¶¶ 9, 59-62. Only the May 10 letter is attached to Waller's second amended complaint. Doc. 37-6. The alleged violations were:

° Other forms of academic dishonesty - Failure to follow class or test taking policy as instructed by the faculty member and/or in the course syllabus

° Disappearing from your clinical site and not responding to attempts from staff to earn your whereabouts

° Actions and/or behaviors that endanger health/safety

° Making changes to ventilators without notifying a therapist

° Placing a patient on “BiPAP” not under supervision

° Performing an ABG backwards, despite being give previous guidance/feedback on the correct manner in which to perform this test

° Disruptive Behavior

° Making an inappropriate comment to a resident during a code

° Dismissal horn clinical unit due to arguing with a doctor in front of a patient's family

Docs. 37 ¶¶ 59-62; 37-6 at 1.

The letter advised Waller of the possible sanctions-an “F” in RESP 4125 and dismissal from the respiratory therapy program. Doc. 37-6 at 1. Cordew also emailed Waller documents he requested constituting some of the evidence against him. Docs. 37 ¶ 60; 37-6 at 2. Waller requested a hearing which Cordew convened on June 1, 2022. Docs. 37 ¶ 64; 37-6 at 2; 37-8. Miller and Defendant Jasmine Brown, Waller's clinical externship professor, “served as the complainants.” Doc. 37 ¶¶ 8, 65. Defendants Marina Spears, Victor Hall, and Morgan Middlebrooks served as members of the hearing panel. Id. ¶ 10. Waller alleges the complainants presented evidence of events occurring before and after April 22, 2022, which was the only date listed in the “charging documents.” Docs. 37 ¶¶ 69, 76-77; 37-6. Waller alleges that Charge 2 involved an incident that occurred on April 29, not April 22. Doc. 37 ¶ 76.

The panel found Waller responsible only for Charge 2: “actions and/or behaviors that endanger health/safety.” Docs. 37 ¶ 72; 37-7 at 1. As punishment, the panel determined Waller should ‘receive a grade of ‘F' in RESP 4125.” Doc. 37 ¶ 81. Waller alleges this “was tantamount to his complete removal from, and ineligibility to re-enter, the respiratory therapy program.” Id. ¶ 82. Waller appealed the panel decision to Cordew, who affirmed. Id. ¶¶ 83-84. Waller next appealed to MGSU President Blake, who also affirmed. Id. ¶¶ 85-86. Waller then filed a discretionary appeal to Defendant Christopher McGraw, the Board's Vice Chancellor of Legal Affairs, and he too affirmed. Id. ¶¶ 12, 87-88.

ii. Facts incorporated

The audio recording of the disciplinary hearing makes clear that the charges against Waller were based on two incidents that occurred not on April 22 but on April 21, 2022 and April 29, 2022. Doc. 26, Ex. 6 at 23:50-24:15, 25:45-26:15, 37:58- 38:39. Charges 1 and 3 related to an incident that occurred on April 21; Charge 2 related to an April 29 incident. Id. at 35:49-36:58, 39:55-41:05, 47:32-48:19. The audio recording explains the confusion over dates. Doc. 26, Ex. 6 at 47:32-48:19. The Supervisor of Respiratory Care at Houston Healthcare, Tony Wann, apparently did not learn of the April 21 incident until the next day, and he incorrectly reported to Miller that the incident occurred on April 22. Docs. 26, Ex. 6 at 35:49-36:58, 36:20-36:58; 37 ¶ 14. Because of the April 21 incident, Wann decided to remove Waller from the hospital when Waller returned for his next shift. Doc. 26, Ex. 6 at 27:44-30:20. Wann communicated this to Miller before learning that Waller had already been told not to return to the hospital by a different supervisor because of the April 29 incident. Id. at 27:40-28:30, 29;01-30:21, 38:00-39:08, 39:55-40:30. As Waller noted, he did not work on April 22. Id. at 22:13-23:25, 36:20-36:58. Houston Healthcare investigated the incidents and, on May 4, 2022, officially barred Waller from its facilities because of both the April 21 and April 29 incidents. Docs. 26, Ex. 6 at 22:09-11, 22:22-22:38, 27:00-34:00, 31:46-32:42, 33:20; 44 at 9-10.

Miller then initiated misconduct proceedings against Waller at MGSU citing the same charges that the “hospital themselves listed as their primary concerns,” i.e., the April 21 and 29 incidents. Doc. 26, Ex. 6 at 32:23-33:32. Prior to sending the May 10 letter, Cordew met with Waller to review the charges. Docs. 26, Ex. 6 at 13:39-14:35, 22:58-22:38; 37-6 at 1. Waller received copies of emails between Miller and Houston Healthcare employees relating to both incidents and was informed that these documents would be entered into evidence against him at the hearing. Doc. 26, Ex. 6 at 14:21-17:07. As noted, the hearing panel found Waller responsible for Charge 2, which arose from the April 29 incident. Docs. 37 ¶ 72; 37-7 at 1; 37-8. According to the attachments to Waller's second amended complaint:

The hearing panel believed they had preponderance to find [Waller] responsible for actions: that endanger health & safety as [Waller] signed the MG[SU] respiratory handbook, acknowledging that [he] was to perform procedures at his clinical site under the supervision of a practicing Respiratory Therapist. [Waller] admitted that he did perform these procedures at least one time on the dates in question and further explained this during this testimony.

Doc. 37-8 at 1; see also Doc. 37-7. Again, the panel determined Waller “should receive a grade of ‘F' in RESP...