Coffman v. Hutchinson Community College, No. 5:2017cv04070 - Document 108 (D. Kan. 2018)

Court Description: MEMORANDUM AND ORDER granting 70 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 106 , 107 Motions for Ruling. Signed by U.S. District Senior Judge Sam A. Crow on 6/22/18. Mailed to pro se party Dustin Coffman by regular mail. (msb)

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Coffman v. Hutchinson Community College Doc. 108 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS DUSTI N D. COFFMAN, Plaint iff vs. Case No. 17- 4070- SAC HUTCHI NSON COMMUNI TY COLLEGE, et al., Defendant s. MEMORANDUM AND ORDER The plaint iff, Dust in D. Coffm an, appears pro se bringing t his act ion alleging he was dism issed from t he nursing program at Hut chinson Com m unit y College ( “ HCC” ) in a m anner t hat violat ed his federal and st at e const it ut ional right s and t hat creat ed act ionable st at e com m on- law claim s. The case com es before t he court on t he defendant s’ second m ot ion t o dism iss ( ECF# 70) and on t he plaint iff’s m ot ions for ruling ( ECF# 106 and 107) . Last year when it was t he only defendant t o have been properly served, HCC filed a m ot ion t o dism iss. ( ECF# 21) . The court grant ed t he m ot ion in part finding it was wit hout j urisdict ion t o address t he plaint iff’s st at e law t ort claim s. ECF# 28. The court , however, denied t he balance of HCC’s m ot ion, because it failed t o address t he allegat ions in t he plaint iff’s supplem ent ( ECF# 7) t o his form com plaint ( ECF# 1) . ECF# 28. All defendant s now m ove t o dism iss for failure t o st at e a claim for relief, and Dockets.Justia.com t he individual defendant s also seek dism issal on qualified im m unit y grounds. ECF# 70. The defendant s filed a not ice on January 10, 2018, cert ifying t hat t hey had served t his m ot ion, am ong ot her pleadings, by m ail. ECF# 79. The pro se plaint iff, Dust in Coffm an, t hereaft er subm it t ed m ult iple filings, som e or all of which are int ended t o be his response t o t he defendant s’ m ot ion. ECF# 85, 91, 92, and 93. None of t hese subm issions were filed wit hin t he 21- day deadline im posed by D. Kan. Rule 6.1( d) ( 2) . Wit hout obj ect ing t o t he plaint iff’s unt im ely responses, t he defendant s t hen t im ely filed t heir reply. ECF# 97. Thereaft er, Mr. Coffm an filed yet anot her docum ent t hat also appears t o address t he m erit s of defendant s’ m ot ion t o dism iss. ECF# 100. The defendant s obj ect t o t his lat e filing and ask t he court t o st rike it as eit her an unt im ely response or a sur- reply filed wit hout leave of t he court . ECF# 102. Mr. Coffm an has been warned repeat edly on t he im port ance of following t he court ’s local rules and part icularly “ Rule 7.1 t hat governs t he filing of m ot ions and responses and replies t heret o and Rule 7.6 t hat governs briefs and m em oranda.” ECF# # 19 and 28, p. 4. The court sust ains t he defendant s’ obj ect ion and shall disregard t he plaint iff’s filing at ECF# 100. 2 Ru le 1 2 ( b) ( 6 ) St a n da r ds a nd Qu a lifie d I m m u n it y The Tent h Circuit recent ly sum m arized t he relevant st andards governing a court ’s analysis of a Rule 12( b) ( 6) m ot ion for failure t o st at e a claim for relief: “ A pleading is required t o cont ain ‘a short and plain st at em ent of t he claim showing t hat t he pleader is ent it led t o relief.’” SEC v. Shields, 744 F.3d 633, 640 ( 10t h Cir. 2014) ( quot ing Fed. R. Civ. P. 8( a) ( 2) ) . “ We accept as t rue all well- pleaded fact ual allegat ions in t he com plaint and view t hem in t he light m ost favorable t o t he” plaint iff. I d. ( quot ing Burnet t v. Mort g. Elec. Regist rat ion Sys., I nc., 706 F.3d 1231, 1235 ( 10t h Cir. 2013) ) . We t hen “ det erm ine whet her t he plaint iff has provided ‘enough fact s t o st at e a claim t o relief t hat is plausible on it s face.’” George [ v. Urban Set t lem ent Servs.] , 833 F.3d [ 1242] at 1247 [ ( 10t h Cir. 2016) ] ( quot ing Hogan v. Winder, 762 F.3d 1096, 1104 ( 10t h Cir. 2014) ) . “ I n det erm ining t he plausibilit y of a claim , we look t o t he elem ent s of t he part icular cause of act ion, keeping in m ind t hat t he Rule 12( b) ( 6) st andard [ does not ] require a plaint iff t o ‘set fort h a prim a facie case for each elem ent .’” I d. ( quot ing Khalik v. Unit ed Air Lines, 671 F.3d 1188, 1192–93 ( 10t h Cir. 2012) ) . “ The nat ure and specificit y of t he allegat ions required t o st at e a plausible claim will vary based on cont ext .” Kan. Penn Gam ing, LLC v. Collins, 656 F.3d 1210, 1215 ( 10t h Cir. 2011) . But “ m ere ‘labels and conclusions' and ‘a form ulaic recit at ion of t he elem ent s of a cause of act ion’ will not suffice; a plaint iff m ust offer specific fact ual allegat ions t o support each claim .” I d. at 1214 ( quot ing Bell At l. Corp. v. Twom bly, 550 U.S. 544, 555, 127 S.Ct . 1955, 167 L.Ed.2d 929 ( 2007) ) . Thus, a “ claim is facially plausible if t he plaint iff has pled ‘fact ual cont ent t hat allows t he court t o draw t he reasonable inference t hat t he defendant is liable for t he m isconduct alleged.’” George, 833 F.3d at 1247 ( quot ing Hogan, 762 F.3d at 1104, which in t urn quot es Ashcroft v. I qbal, 556 U.S. 662, 678, 129 S.Ct . 1937, 173 L.Ed.2d 868 ( 2009) ) . However, “ when legal conclusions are involved in t he com plaint [ ,] ‘t he t enet t hat ’” we accept t he allegat ions as t rue “ is inapplicable t o [ t hose] conclusions.” Shields, 744 F.3d at 640 ( second alt erat ion in original) ( cit at ion om it t ed) . Safe St reet s Alliance v. Hickenlooper, 859 F.3d 865, 878 ( 10t h Cir. 2017) . 3 The Tent h Circuit recent ly observed t hat Twom bly requires sufficient fact ual allegat ions t o show a violat ion of t he plaint iff’s const it ut ional right s and “ requires enough specificit y t o give t he defendant not ice of t he claim assert ed.” Mat t hews v. Bergdorf, 889 F.3d 1136, 1144 n. 2 ( 10t h Cir. 2018) . This bit e t aken by t he Twom bly st andard m ay be “ great er” when t he affirm at ive defense of qualified im m unit y is being analyzed: Qualified im m unit y exist s “ t o prot ect public officials from t he ‘broadranging discovery’ t hat can be ‘peculiarly disrupt ive of effect ive governm ent .’” Anderson v. Creight on, 483 U.S. 635, 646 n. 6, 107 S.Ct . 3034, 97 L.Ed.2d 523 ( 1987) ( quot ing Harlow v. Fit zgerald, 457 U.S. 800, 817, 102 S.Ct . 2727, 73 L.Ed.2d 396 ( 1982) ) . Defendant s are perm it t ed t o appeal from t he denial of a m ot ion t o dism iss on qualified im m unit y grounds precisely t o spare t hem t he ordeal of discovery if t he com plaint fails t o allege a const it ut ional violat ion or if t he alleged violat ion was not clearly est ablished. Behrens v. Pellet ier, 516 U.S. 299, 306, 116 S.Ct . 834, 133 L.Ed.2d 773 ( 1996) . To “ nudge t heir claim s across t he line from conceivable t o plausible,” Twom bly, 127 S.Ct . at 1974, in t his cont ext , plaint iffs m ust allege fact s sufficient t o show ( assum ing t hey are t rue) t hat t he defendant s plausibly violat ed t heir const it ut ional right s, and t hat t hose right s were clearly est ablished at t he t im e. This requires enough allegat ions t o give t he defendant s not ice of t he t heory under which t heir claim is m ade. This does not m ean t hat com plaint s in cases subj ect t o qualified im m unit y defenses m ust include “ all t he fact ual allegat ions necessary t o sust ain a conclusion t hat defendant violat ed clearly est ablished law.” Breidenbach v. Bolish, 126 F.3d 1288, 1293 ( 10t h Cir. 1997) . I n Currier we found t his height ened pleading st andard superceded by t he Court 's decision in Crawford–El v. Brit t on, 523 U.S. 574, 118 S.Ct . 1584, 140 L.Ed.2d 759 ( 1998) . Currier v. Doran, 242 F.3d 905, 916 ( 10t h Cir.2001) . Twom bly, t oo, rej ect s a height ened pleading st andard. 127 S.Ct . at 1973–74. However, t he com plaint m ust m eet t he m inim al st andard of not ice pleading as art iculat ed by t he Court in Twom bly. Alt hough we apply “ t he sam e st andard in evaluat ing dism issals in qualified im m unit y cases as t o dism issals generally,” Shero v. Cit y of Grove, Okl., 510 F.3d 1196, 1200 ( 10t h Cir.2007) , com plaint s in § 1983 cases against individual governm ent act ors pose 4 a great er likelihood of failures in not ice and plausibilit y because t hey t ypically include com plex claim s against m ult iple defendant s. The Twom bly st andard m ay have great er bit e in such cont ext s, appropriat ely reflect ing t he special int erest in resolving t he affirm at ive defense of qualified im m unit y “ at t he earliest possible st age of a lit igat ion.” Anderson, 483 U.S. at 646 n. 6, 107 S.Ct . 3034; Harlow , 457 U.S. at 818, 102 S.Ct . 2727. Wit hout allegat ions sufficient t o m ake clear t he “ grounds” on which t he plaint iff is ent it led t o relief, Twom bly, 127 S.Ct . at 1965 n. 3, it would be im possible for t he court t o perform it s funct ion of det erm ining, at an early st age in t he lit igat ion, whet her t he assert ed claim is clearly est ablished. Robbins v. Oklahom a, 519 F.3d 1242, 1248–49 ( 10t h Cir. 2008) ( foot not e om it t ed) . Pla in t iff’s Com pla in t ECF# 1 a n d 7 . The court underst ands t he defendant s’ st ruggle t o underst and what t he plaint iff is assert ing as his claim s for relief. The plaint iff’s filings are not “ a short and plain st at em ent ” as cont em plat ed by Rule 8( a) . The plaint iff’s allegat ions int erm ingle conclusory fact ual allegat ions of his own circum st ances wit h excerpt s of fact ual findings and legal conclusions t aken from an order apparent ly issued by a federal dist rict court from Michigan. This ot her court order involves a case t hat has no apparent legal or fact ual relat ionship t o t hese Kansas proceedings. The plaint iff’s filings confusingly blend his own fact ual allegat ions wit h excerpt s from t hat court order. The pot ent ial for confusion is aggravat ed by t he plaint iff’s failure t o use quot at ion m arks or cit at ions. I n addit ion, t he plaint iff’s filings m ake it difficult t o parse which fact ual allegat ions are deem ed relevant for considerat ion under each of t he respect ive claim s for relief. 5 The plaint iff’s com plaint ent it les one sect ion, “ I nt roduct ion,” and set s out t here a sum m ary list ing of his alleged claim s against t he defendant s: 1) Violat ion of t he plaint iff’s First am endm ent ( ret aliat ion) ; 2) violat ion of t he Fourt eent h Am endm ent ’s due process clause; 3) Violat ion of t he Fourt eent h Am endm ent ’s equal prot ect ion clause; 4) Violat ion of t he Kansas const it ut ional right t o free speech; 5) Violat ion of Kansas’ const it ut ional right t o due process; 6) Violat ion of Kansas’ const it ut ional right of equal prot ect ion under t he law; 7) Breach of cont ract ; 8) Defam at ion ( as t o defendant s Jay Ballard and Kat hy Sanchez) ; 9) Libel and slander as t o defendant s Jay Ballard and Kat hy Sanchez; 10) Tort ious int erference wit h a cont ract as t o defendant s Debra Heckler, Cindy Hoss, Janet Ham ilt on, Kat hy Sanchez and Jay Ballard; 11) I nt ent ional inflict ion of em ot ional dist ress; 12) Violat ion of t he Kansas Civil Right s Act ; and 13) Violat ion of t he Kansas vict im prot ect ion act . ECF# 7, p. 1. And, as t aken from t hat sect ion of t he plaint iff’s com plaint ent it led, “ St at em ent of Fact s,” t he court gleans t he following as relevant allegat ions of fact . I n t he fall of 2014, Dust in Coffm an enrolled in HCC and was lat er accept ed in t he R.N. online bridge program in t he Spring of 2015. The bridge program required Coffm an t o part icipat e in a clinical rot at ion, and his part icipat ion was supervised in part by HCC’s inst ruct ors, Jay Ballard and Kat hy Sanchez, who are individually nam ed as defendant s. Coffm an alleges t hat during t he Sum m er 2015 sem est er, his supervisors Ballard and Sanchez displayed a negat ive change of at t it ude t oward him . Ballard crit icized Coffm an before ot her st udent s and charge nurses for speaking Spanish t o a pat ient and for eat ing chocolat e given t o 6 him by a charge nurse. Ballard also t old Coffm an t hat he could not go int o t he hospit al chapel and pray during his break and t hat he could “ not at t em pt t o out source a pat ient t o a rehab facilit y of t he Christ ian fait h.” ECF# 7, p. 2. At t he end of t he plaint iff’s clinical rot at ion on July 24, 2015, Ballard and Sanchez m et wit h Coffm an. They t old him t hat , “ he m ight have t o sign a correct ive act ion cont ract wit h t he school for issues, t hat were discussed, by t he Defendant Jay Ballard and for being sick and would be asked t o do a virt ual m akeup of t he rot at ion.” I d. at pp. 2- 3. “ Not hing was m ent ioned about Unprofessional conduct by t he Defendant in t hat m eet ing.” I d. at p. 3. The plaint iff alleges he had no problem wit h m aking up t he clinical rot at ion day he m issed because he had a cont agious skin issue. When he got hom e wit h t he m at erial for t he m akeup assignm ent , Coffm an realized t he t ext book and t he work book were different edit ions, and he could not com plet e t he t im ed t est ing applicat ions because t he page references did not correspond. Because of t his problem , Coffm an alleges he “ im m ediat ely” init iat ed a t elephone conference wit h t he defendant Sanchez. He asked t wo ot her persons t o list en in as his wit nesses. During t he conference call, Sanchez said t hey “ could j ust work som et hing else out next sem est er” and also said, “ do not worry about t he correct ive act ion cont ract as well.” I d. at p. 3. 7 Two weeks before t he st art of t he next school sem est er, which was Coffm an’s final sem est er of t he regist ered nurse program , he learned t hat t he correct ive act ion cont ract was st ill an “ issue.” I d. As an exhibit t o his m em orandum opposing dism issal, t he plaint iff at t aches a copy of an em ail from Sanchez addressed t o him and dat ed July 30, 2015, at 5: 47 pm : Per our conversat ion on July 24, 2015, I am sending you t he Correct ive Act ion Cont ract for NR 216. Please read, review, download, add your st udent percept ion, sign and ret urn by Aug 15, 2015. You m ay send your signed copy by m ail or you m ay scan t he signed copy and send by your Hut chinson Com m unit y College em ail or you m ay elect ronic sign and ret urn t hrough your Hut chinson Com m unit y College em ail. Kat hryn Sanchez ECF# 93, p. 51. The plaint iff also subm it s a copy of t hree em ails which he sent t o Sanchez in reply lat er t hat evening. The first of which reads, “ Per our t ext s conversat ional said t hat I did not have t oo.” I d. The plaint iff also at t aches t o his m em orandum copies of em ails he sent on August 3, 2015, t o Ms. Sanchez. They st at e: This cont ract has several issues 1. This is m y first correct ive act ion and t he wording says final correct ive act ion. 2. The soft ware should not allow scheduling of an OB day if it is not available. 3. We had visit ed in t he break room post conference aft er m y second day was at I V infusion about m e going t o t he ER on m y t hird clinical day. 4. The assignm ent s are not correct via t ext m essages about not doing unit six. Unit six is already filled in and t he dat a disk inform at ion will not change so t hat could be considered cheat ing. 5. Tim e fram e for com plet ion of ext ra assignm ent is not clear. 6. I t t ook unt il alm ost 1100 am t o receive any t ext s on t he issue of t he wrong day due t o t ech issues. 7. I not ified every I nst ruct or about t he issue. 8 8. I was also t old by t he direct or t hat t here would be no problem s on a scheduling issues. 9. The assignm ent s has t he wrong edit ions of t ext book and work book. 10. 1st correct ive cont ract not final wording needs changed. 11. Text correspondence and verbal com m unicat ion bet ween you and I st at ed no need for t his cont ract . 12. Ext ension was grant ed via com m unicat ion bet ween us due t o t he t ext book work book not being t he sam e is not in t he cont ract . 13. Why do you need a cont ract ? Unless it s for som e ot her m ot ives? 14. Did t he ot her st udent who had t o do m ake up work over break have a cont ract ? Please show evidence of for review. Second em ail: I also have all t he t ext dat a from all inst ruct ors plus I record m y clinical day on m y dict at ion recorder. This is t o ensure t he fact s are not a m at t er of hearsay for any possible st at e board adm inist rat ion need. Been down t hat road and not get t ing involved wit h a hearsay case again. ECF# 93, p. 50. I n his com plaint , t he plaint iff alleges t hat upon receiving t he correct ive act ion cont ract and not icing it s use of “ unprofessional conduct ” he “ felt harassed and at t acked by t he allegat ions m ade by defendant s, Jay Ballard and Kat hy Sanchez.” I d. at p. 4. He alleges t he correct ive act ion cont ract quot es t ext m essages t aken out - of- cont ext t o accuse him of unprofessional conduct . He alleges t hat on July 18, 2015, t here was a com m unicat ion error in clinical scheduling, and t hat upon learning of t his error he left t he hospit al where t his clinical t raining was t o occur. He also alleges t he quot ed t ext m essages from June 16, 2015, erroneously m ake it appear as if he had been lat e for class when, in fact , he was in class and seat ed before t he inst ruct or began class. The plaint iff denies t he allegat ion in t he cont ract t hat he applied for a 9 j ob wit h t he Hut chinson Regional Medical Cent er while on clinical t im e. The plaint iff alleges t hat t his j ob applicat ion process occurred over his lunch break aft er he was recruit ed by Cent er st aff. He also alleges t hat ot her nursing st udent s in t he program are recruit ed by t he Hospit al and are not singled out for engaging in unprofessional conduct . Finally, t he plaint iff also subm it s as an exhibit t o his m em orandum a copy of Ms. Sanchez’s em ail t o him dat ed August 21, 2015, at 3: 27 pm : On July 30, 2015, you received t he following em ail. Per our conversat ion on July 24, 2015, I am sending you t he Correct ive Act ion Cont ract for NR 216. Please read, review, download, add your st udent percept ion, sign and ret urn by Aug 15, 2015. You m ay send your signed copy by m ail or you m ay scan t he signed copy and send by your Hut chinson Com m unit y College em ail or you m ay elect ronic sign and ret urn t hrough your Hut chinson Com m unit y College em ail. Kat hryn Sanchez . . . . As of Friday August 21, 2015 at 1200 I have not received t he assignm ent or signed cont ract . I t is t he decision of t he Online Bridge Program t eam t o have you rem oved from your fall courses unt il issue can be resolved. Please schedule a m eet ing t hrough Nit a Gradest aff t o m eet wit h Online Bridge Program t eam , t o discuss any issues or concern you m ay have. Kat hryn Sanchez ECF# 93, p. 32. To his ot her legal m em orandum , t he plaint iff at t aches his m ult iple em ail replies sent t o Ms. Sanchez on August 21st . ECF# 92, pp. 2024. Correct ive Act ion Cont ract Because t he plaint iff m akes t his cont ract and it s cont ent s a cent ral part of his com plaint , t he defendant s have subm it t ed a copy of t he 10 cont ract as an exhibit t o t heir m ot ion t o dism iss. The court does not underst and t he plaint iff t o m ake any subst ant ive challenge t o t he accuracy of t hat copy and it s cont ent s sum m arized below. The correct ive act ion cont ract is a four- page docum ent ent it led, “ Learning Cont ract for Correct ive Act ion in Theory/ Clinical.” ECF# 71- 1, p. 2. I t opens wit h a “ Descript ion of Concern,” t hat being Dust in Coffm an’s “ Non- Professional Behavior.” I d. I t fram es t he issues as t hose having been discussed by Kat hryn Sanchez and Jay Ballard wit h Coffm an on July 24, 2015. I d. The first issue is ent it led, “ Com plet ion of clinical for NR 216,” and describes Coffm an as having self- scheduled for clinical day at Hut chinson Regional Medical Cent er on July 18, 2015, when no clinical was available and t hen as having “ proceeded t o com plet e clinical experience in t he ER wit hout an inst ruct or present .” I d. The cont ract set s out cert ain t ext m essages exchanged bet ween Coffm an and Sanchez on t he m orning of July 18, 2015, and concludes t hat Coffm an “ did not com plet e t he required clinical experience for OB rot at ion.” I d. The cont ract set s out as t he correct ive act ion t hat Dust in receive addit ional inst ruct ion on t he scheduling program , t hat he be allowed t o com plet e his m issed clinical requirem ent for NR 216, t hat his cont act wit h clinical inst ruct ors would be t hrough defined m et hods, and t hat his clinical opport unit ies for t he next sem est er were discussed. The second issue is ent it led, “ Appropriat e Com m unicat ion for clinical set t ing,” and st at es t he expect at ion t hat st udent s will “ use 11 appropriat e professional com m unicat ion in t he st udent clinical role.” ECF# 71- 1, p. 3. The cont ract st at es, “ On July 16 and 17, 2015, Dust in discussed personal illness ( Norwegian scabies) , polit ical and religious inform at ion t hat is not needed in t he professional role as a st udent in t he clinical set t ing.” I d. The st at ed correct ive act ion included discussing appropriat e com m unicat ion for st udent clinic set t ing, t aking direct ion wit hout unnecessary reply, being “ court eous and respect ful wit h pat ient s, resource persons and clinical inst ruct ors and facult y.” I d. The t hird issue is ent it led, “ Appropriat e Com m unicat ion for clinical concerns,” and st at es t he expect at ion t hat st udent s are “ t o be prepared and on t im e for every clinical experience and use appropriat e com m unicat ion wit h facult y and clinical inst ruct ors.” I d. at p. 4. The cont ract recount s t ext m essages exchanged on four different days in June and July of 2015. The correct ive act ion repeat s addit ional inst ruct ion on scheduling program , prom pt com m unicat ion of at t endance issues, and only em ergency com m unicat ions t o inst ruct or’s personal cell phone. The fourt h issue is ent it led, “ Appropriat e use of clinical experience,” and st at es t hat , “ Dust in self- report ed seeking em ploym ent and references for em ploym ent at Hut chinson Regional Medical Cent er during clinical t im e. Seeking em ploym ent and get t ing references does not m eet t he obj ect ives of t he clinical experience and is not professional conduct of a 12 st udent .” I d. at p. 4. The correct ive act ion bars Dust in from “ seeking em ploym ent and references for em ploym ent during clinical t im e.” I d. I m m ediat ely above t he inst ruct or Sanchez’s signat ure, t he cont ract st at es t hat , “ I n order for Dust in Coffm an t o cont inue t he program , he m ust com plet e t he correct ive act ions list ed above and follow t hroughout t he rem ainder of t he NR 220 and NR221 courses.” The cont ract is dat ed July 30, 2015. The cont ract provides a sect ion for t he st udent t o record his “ percept ion.” I d. at p. 5. Above t he st udent ’s signat ure line, t he following affirm at ion appears, “ I desire t o cont inue t he program . I underst and t hat in order t o cont inue I m ust com plet e t he correct ive act ions list ed above.” I d. Aft er t he st udent ’s signat ure, t here is t his warning sent ence, “ Failure t o sign will result in dism issal from t he program .” I d. The plaint iff alleges he believed t hat signing t he cont ract would have const it ut ed adm it t ing t o unprofessional conduct t hat would j eopardize his L.P.N. license. So, he refused t o sign t he cont ract and had his at t orney com m unicat e his concerns wit h t he cont ract . These concerns included using t he descript ion of “ unprofessional conduct ,” t aking his t ext m essages out of cont ext , and m isst at ing t he fact s. The plaint iff also filed a grievance wit h t he Vet erans Affairs represent at ive at HCC t hat alleged abusive conduct by t he inst ruct ors Sanchez and Ballard. 13 Adm inist rat ive Proceedings The plaint iff alleges t hat t he defendant Debra Hackler, chairm an of t he Nursing Depart m ent , cont act ed him in lat e July t o schedule a facult y m eet ing over his concerns wit h t he cont ract . When Mr. Coffm an request ed t hat his at t orney be conferenced int o t he m eet ing and t hat his fat her be allowed t o at t end, Ms. Hackler indicat ed t hese addit ional part ies would not be allowed in t he m eet ing. The plaint iff alleges t he defendant Hackler becam e “ agit at ed and t old t he Plaint iff t hat he was officially kicked out of t he R.N. program for academ ic reasons and was no longer allowed t o at t end” HCC. ECF# 7, p. 8. The plaint iff assert s based on t he st udent handbook t hat he should not have been t erm inat ed from t he course unt il t he invest igat ion of his grievance had been com plet ed. The plaint iff next pursued an academ ic appeal before t he defendant Cindy Hoss, Vice President of Academ ic Affairs at HCC. ECF# 7, p. 10. This hearing was recorded, and t he plaint iff’s fat her w as present , as was “ Safet y Depart m ent Chair Bobby Whit e.” I d. The audio recording of t his hearing is referenced in t he com plaint and has been subm it t ed as an exhibit t o t hese m ot ion proceedings. The court has list ened t o t his recording. The plaint iff alleges t hat t he hearing should have considered only his academ ic st at us, but t hat inst ead it was focused on t he correct ive act ion cont ract which he assert s w as “ proven t o be false in it s allegat ions, on every point , ot her t han get t ing a j ob offer and t old t o get an applicat ion by t he 14 Hut chinson Regional, Hospit al Hospit alist .” I d. The plaint iff alleges Ms. Hoss com m ent ed t hat t he plaint iff cannot go t o school at HCC because t wo inst ruct ors did not like him . The plaint iff subm it s as an exhibit t o his response a let t er from Ms. Hoss dat ed Sept em ber 18, 2015, which st at es, “ Upon review of your docum ent at ion and com m ent s you shared during t he Academ ic Appeal hearing m eet ing on Monday, Sept em ber 14, 2015, and upon review of t he Hut chinson Com m unit y College Nursing Depart m ent docum ent at ion and Academ ic Appeal hearing m eet ing, I am upholding your dism issal from t he HCC Nursing Program .” ECF# 92, p. 7. The plaint iff t hen appealed t o t he Academ ic Appeal Com m it t ee which heard his appeal on Sept em ber 29, 2015, and upheld his academ ic dism issal. He t hen request ed HCC’s President Cart er File t o review t he findings. The plaint iff alleges he was inform ed by t he appeals com m it t ee t hat t he recordings from t he prior hearings were lost and t hat t he sam e would not be available t o Dr. File for his review. The plaint iff assert s t he defendant s em ployed t he wrong procedures and rules in dism issing him for academ ic grounds and in affirm ing his dism issal. The plaint iff alleges he is a vet eran and is being t reat ed for A.D.H.D. diagnosis following his deploym ent . The plaint iff, however, not es he did not request accom m odat ion and did not seek different t reat m ent from HCC for his condit ion. The plaint iff inst ead not es his academ ic perform ance was equal t o or bet t er t han ot her st udent s in t he nursing program . He 15 assert s discrim inat ion because he was subj ect ed t o different prot ocols for his dism issal. He does not allege his different t reat m ent was because of his assert ed disabilit y. The plaint iff’s com plaint bears all t he m arkings of a Rule 56 pleading t oo. Presum ably, t his is because he borrows liberally from t he Michigan federal dist rict court ’s sum m ary j udgm ent opinion. The com plaint , t herefore, includes under t he general t it le of “ Analysis” specific allegat ions and argum ent s wit h respect t o t he following claim headings. Due Process The plaint iff here generally claim s bot h a propert y int erest in cont inued enrollm ent at HCC and a cont ract ual int erest from t he st udent handbook. He m aint ains t hat bot h ent it le him t o procedural due process prot ect ion from arbit rary dism issal. While he adm it s t hat t he correct ive act ion cont ract inform ed him of t he inst ruct ors’ dissat isfact ion wit h him , he denies t he t rut hfulness of t hese st at ed reasons as well as t heir j ust ificat ion for his dism issal. He t akes t he posit ion t hat his academ ic grades were sufficient , his coursework was passing, and he was receiving j ob offers. He assert s his dism issal could not have been for academ ic reasons and t hat his clinical inst ruct ors’ dislike of him is insufficient grounds for dism issal. He furt her alleges t hat t he correct ive act ion cont ract wrongly accuses him of unprofessional conduct as a st udent and t hat he could not sign it as t his would const it ut e giving false inform at ion t o t he st at e board of nursing should 16 t here have been an inquiry. The defendant s refused t o change t he cont ract when he disput ed t hese m at t ers. The plaint iff concedes he was warned of t he consequences for not signing t he cont ract . ECF# 7, p. 25. First Am endm ent —Ret aliat ion Under t he heading of “ prot ect ed speech,” t he plaint iff assert s he has alleged fact s showing bias by t he defendant s Sanchez, Ballard, and Hoss, in proposing t he correct ive act ion cont ract replet e wit h false and m isleading inform at ion. ECF# 7, p. 26. Lat er in t he com plaint , t he plaint iff alleges his prot ect ed speech was his grievance sent t o t he Vet eran Affairs office and m ade against his inst ruct or who had reprim anded him for eat ing a chocolat e, had not allowed him t o pray in t he hospit al chapel, and had not allowed him t o recom m end a “ Christ ian rehab facilit y.” ECF# 7, p. 34. The plaint iff assert s his grievance was prot ect ed speech as a st udent and his dism issal from school cert ainly had a chilling effect upon speech. The plaint iff’s allegat ions of a causal connect ion bet ween t he grievance and his dism issal are confusing. He point s t o t he t im ing bet ween his grievance and his dism issal by Ms. Hacklar but adm it s it is “ difficult t o t ie t he dism issal direct ly prot ect ed t o t he speech based on . . . circum st ant ial evidence.” I d. at p. 37. He furt her adm it s “ t here is no evidence t hat . . . [ his] prot ect ed speech . . . served as a m ot ivat ion in anyone’s decision t o dism iss.” I d. at pp. 37- 38. Nonet heless, he alleges it ’s enough t hat his prot ect ed speech caused t he correct ive act ion cont ract and t he erroneous allegat ions in it . The 17 court does not underst and t his argum ent , because Coffm an subm it t ed his grievance in response t o t he correct ive act ion cont ract . Breach of Cont ract The plaint iff assert s his st udent relat ionship t o HCC “ is explicit ly cont ract ual in nat ure” wit h “ t he St udent Handbook being t he cont ract for t he college and st udent .” ECF# 7, p. 29. He alleges HCC breached t his cont ract in not following t he disciplinary policies and procedures. Equal Prot ect ion He claim s he “ was int ent ionally t reat ed different ly, from ot her sim ilarly sit uat ion wit hout a rat ional basis—a ‘class of one’ equal prot ect ion violat ion.” ECF# 7, p. 31. The plaint iff alleges st udent s wit h sim ilar academ ic records were not subj ect ed t o “ t he sam e concerns from facult y m em bers” or did not have t heir clinical work j udged deficient in t he sam e way. He claim s his t reat m ent lacked a rat ional basis based on t he dem onst rat ed anim us of Sanchez, Ballard and Heckler. He assert s t he anim us is dem onst rat ed from Ballard’s t reat m ent of him in clinic, t he false and m isleading inform at ion in t he correct ive act ion cont ract , and t he recorded com m ent of Ms. Hoss at t he recorded academ ic appeal hearing t hat his clinical inst ruct ors did not like him . Discrim inat ion Throughout t he com plaint , t he plaint iff m akes references t o “ discrim inat ion.” But at page 38, he includes t he following as reasons for 18 discrim inat ion, “ m ent al healt h diagnosis of A.d.h.d., racial bias as m y m ot her is 1/ 4 cherrokee indian.” ECF# 7, p. 38. He alleges bot h were disclosed on his “ enrollm ent paper work.” I d. at 40. He also m ent ions t hat “ a con art ist ’s phot o on t he world wide web t hat m akes m e out t o be a child st ealing pedophile.” I d. at 38. He alleges discrim inat ion in t hat he was dism issed for academ ic reasons even t hough he was passing all sect ions and t hat ot her st udent s wit h lower grades did enroll and com plet e t he program . I d. at 39. The plaint iff’s com plaint does not delineat e a separat e claim for discrim inat ion under any st at e or federal st at ut ory schem e. More im port ant ly, t he plaint iff’s cursory, vague and repeat ed references t o discrim inat ion are no m ore t han labels and conclusions devoid of any specific fact ual allegat ions. The court does not underst and t he plaint iff as int ending t o bring an act ionable claim of st at ut ory discrim inat ion. I f he purport ing t o do so on t he fact s as alleged in his com plaint , t he court w ould have t o conclude t hat t hey are ut t erly lacking in facial plausibilit y. St at e Law Claim s—Tort ious I nt erference wit h Cont ract , Defam at ion, and I nt ent ional I nflict ion of Em ot ional Dist ress For t ort ious int erference wit h cont ract , t he plaint iff alleges Ballard and Sanchez act ed as agent s who individually benefit t ed from his dism issal because t hat is what t hey want ed. I d. at 41. For defam at ion, t he plaint iff alleges he was “ not guilt y of unprofessional conduct ” out lined in t he correct ive act ion cont ract , and t he defendant s refused t o m ake t he correct ions suggest ed by his counsel. I d. at 42- 44. For int ent ional inflict ion 19 of em ot ional dist ress, t he plaint iff sim ply alleges he has t reat m ent not es t o confirm t his inj ury. AN ALYSI S AN D RULI N G The defendant s first challenge t hat t he plaint iff’s com plaint fails t o allege sufficient fact s t o st at e a claim for relief. As t he above sum m ary of allegat ions shows, t he court is part icularly m indful of t he following Rule 12( b) ( 6) t enet s. “ Thus, in ruling on a m ot ion t o dism iss, a court should disregard all conclusory st at em ent s of law and consider whet her t he rem aining specific fact ual allegat ions, if assum ed t o be t rue, plausibly suggest t he defendant is liable.” Kansas Penn Gam ing, LLC v. Collins, 656 F.3d 1210, 1214 ( 10t h Cir. 2011) . The Tent h Circuit regards t he Twom bly– I qbal decisions as craft ing a new “ refined st andard” where “ plausibilit y refers t o t he scope of t he allegat ions in a com plaint : if t hey are so general t hat t hey encom pass a wide swat h of conduct , m uch of it innocent , t hen t he plaint iffs “ have not nudged t heir claim s across t he line from conceivable t o plausible.” Khalik v. Unit ed Air Lines, 671 F.3d 1188, 1191 ( 10t h Cir. 2012) ( int ernal quot at ion m arks and cit at ions om it t ed) . “ [ T] he degree of specificit y necessary t o est ablish plausibilit y and fair not ice, and t herefore t he need t o include sufficient fact ual allegat ions, depends on cont ext . . . .” Robbins v. Oklahom a, 519 F.3d 1242, 1248 ( 10t h Cir. 2008) ( cit at ion om it t ed) . A com plaint t hat is filed pro se m ust be liberally const rued and t he court m ust apply “ less st ringent st andards t han form al pleadings draft ed 20 by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct . 2197, 167 L.Ed.2d 1081 ( 2007) ; Trackwell v. Unit ed St at es, 472 F.3d 1242, 1243 ( 10t h Cir.2007) ( cit at ions om it t ed) . I n ot her words, “ if t he court can reasonably read t he pleadings t o st at e a valid claim on which t he plaint iff could prevail, it should do so despit e t he plaint iff’s failure t o cit e proper legal aut horit y, his confusion of various legal t heories, his poor synt ax and sent ence const ruct ion or his unfam iliarit y wit h pleading requirem ent s.” Hall v. Bellm on, 935 F.2d 1106, 1110 ( 10t h Cir. 1991) . Nevert heless, “ when t he allegat ions in a com plaint , however t rue, could not raise a claim of ent it lem ent t o relief,” dism issal is appropriat e. Twom bly, 550 U.S. at 558. A pro se lit igant 's “ conclusory allegat ions wit hout support ing fact ual averm ent s are insufficient t o st at e a claim upon which relief can be based.” Hall v. Bellm on, 935 F.2d at 1110. The court “ will not supply addit ional fact ual allegat ions t o round out a plaint iff's com plaint or const ruct a legal t heory on plaint iff's behalf.” Whit ney v. New Mexico, 113 F.3d 1170, 1173–74 ( 10t h Cir.1997) ; Drake v. Cit y of Fort Collins, 927 F.2d 1156, 1159 ( 10t h Cir.1991) . A court m ay not assum e t hat a plaint iff can prove fact s t hat have not been alleged, or t hat a defendant has violat ed laws in ways t hat a plaint iff has not alleged. Assoc. Gen. Cont ract ors of Cal., I nc. v. Cal. St at e Council of Carpent ers, 459 U.S. 519, 526, 103 S.Ct . 897, 74 L.Ed.2d 723 ( 1983) ; see also Whit ney, 113 F.3d at 1173–74. For t hat m at t er, “ t he court 21 need accept as t rue only t he plaint iff’s well- pleaded fact ual cont ent ions, not his conclusory allegat ions.” Hall, 935 F.2d at 1110. I n t he sam e vein, t he Tent h Circuit 's rule is t hat “ dism issal of a pro se com plaint for failure t o st at e a claim is proper only where it is obvious t hat t he plaint iff cannot prevail on t he fact s he has alleged and it would be fut ile t o give him an opport unit y t o am end.” Gee v. Pacheco, 627 F.3d 1178, 1188 ( 10t h Cir.2010) ( int ernal quot at ion m arks and cit at ion om it t ed) . “ [ T] he dist rict court should allow a plaint iff an opport unit y t o cure t echnical errors or ot herw ise am end t he com plaint when doing so would yield a m erit orious claim .” Curley v. Perry, 246 F.3d 1278, 1284 ( 10t h Cir.) , cert . denied, 534 U.S. 922 ( 2001) ; Hall, 935 F.2d at 1110 ( “ [ T] he plaint iff whose fact ual allegat ions are close t o st at ing a claim but are m issing som e im port ant elem ent t hat m ay not have occurred t o him , should be allowed t o am end his com plaint .” ( cit at ion om it t ed) ) . While Fed.R.Civ.P. 15( a) ( 2) inst ruct s t hat leave should be given “ freely ... when j ust ice so requires,” a court m ay refuse leave “ if t he am endm ent would be fut ile.” U.S. ex. rel. Rit chie v. Lockheed Mart in Corp., 558 F.3d 1161, 166 ( 10t h Cir.2009) ( cit ing Fom an v. Davis, 371 U.S. 178, 182 ( 1962) ) . “ A proposed am endm ent is fut ile if t he com plaint , as am ended, would be subj ect t o dism issal.” Breret on v. Bount iful Cit y Corp., 434 F.3d 1213, 1219 ( 10t h Cir.2006) . First Am endm ent —Ret aliat ion 22 As set out above, t he plaint iff here claim s he engaged in prot ect ed speech t o t he Vet eran Affairs office in t he form of a grievance against his clinical inst ruct ors for reprim anding him for eat ing a chocolat e, for not allowing him t o pray in t he hospit al chapel, and for not allowing him t o recom m end a “ Christ ian rehab facilit y.” ECF# 7, p. 34. The plaint iff assert s t hat his grievance is prot ect ed speech as a st udent and t hat his dism issal from school had a chilling effect upon his speech. To st at e a first am endm ent ret aliat ion claim out side of an em ploym ent cont ext or cont ract ual relat ionship, a plaint iff m ust allege as provable: ( 1) t hat t he plaint iff was engaged in const it ut ionally prot ect ed act ivit y; ( 2) t hat t he defendant 's act ions caused t he plaint iff t o suffer an inj ury t hat would chill a person of ordinary firm ness from cont inuing in t hat act ivit y; and ( 3) t hat t he defendant 's adverse act ion was subst ant ially m ot ivat ed as a response t o t he plaint iff's exercise of const it ut ionally prot ect ed act ivit y.” Leveringt on v. Cit y of Colorado Springs, 643 F.3d 719, 729 ( 10t h Cir. 2011) ( int ernal quot at ion m arks and cit at ion om it t ed) . The defendant s correct ly argue t hat t he plaint iff’s com plaint concedes he is unable t o allege any link or connect ion bet ween t hose deciding t o dism iss him and his grievance. He openly adm it s “ t here is no evidence t hat . . . [ his] prot ect ed speech . . . served as a m ot ivat ion in anyone’s decision t o dism iss.” ECF# 7 at pp. 37- 38. For t hat m at t er, t he com plaint fails t o allege any causal connect ion bet ween his grievance and t he prior correct ive act ion cont ract . For t hat m at t er, t he plaint iff’s com plaint fails t o allege how t he proposed correct ive act ion cont ract even caused him 23 an inj ury t hat would chill his prot ect ed speech. The proposed cont ract does not require t he plaint iff t o adm it any alleged conduct and, inst ead, provides him space for set t ing out his own “ percept ion.” ECF# 71- 1, p. 5. The em ail of Ms. Sanchez expressly referred t o his opport unit y t o fill out his percept ion and sign t he correct ive act ion cont ract . There are no allegat ions t hat t he plaint iff t ried and was denied any opport unit y t o set out his percept ions in t he correct ive act ion cont ract . While t he cont ract was prim arily direct ed at im proving his perform ance and conduct in fut ure clinical courses, t he plaint iff does not allege t hat any harm or inj ury would have result ed from t hose correct ive act ions. I nst ead, it is difficult t o see how t hese proposed correct ive act ions required anyt hing m ore t han what was already expect ed of Mr. Coffm an as a nursing st udent in t he clinical program . I n sum , t he plaint iff has not alleged a First Am endm ent ret aliat ion claim , and t he fact s as alleged do not indicat e t hat he would be able t o allege a claim if given an opport unit y t o am end his com plaint . Denial of Due Process ( Federal and St at e) “ Sect ions 1 and 2 of t he Kansas Const it ut ion Bill of Right s ‘are given m uch t he sam e effect as t he clauses of t he Fourt eent h Am endm ent relat ing t o due process and equal prot ect ion of t he law.” St at e v. Lim on, 280 Kan. 275, 283, 122 P.3d 22 ( 2005) ( quot ing Farley v. Engelken, 241 Kan. 663, 667, 740 P.2d 1058 ( 1987) ) ; see Coburn By and Through Coburn v. Agust in, 627 F.Supp. 983, 986 ( D. Kan. 1985) ( “ Kansas cases appear t o 24 const rue Kansas const it ut ional provisions as being subst ant ially t he equivalent of t he parallel provision in t he Unit ed St at es Const it ut ion.” ) . The t wo elem ent s t o a claim alleging denial of procedural due process are, “ ( 1) a const it ut ionally prot ect ed libert y or propert y int erest , and ( 2) a governm ent al failure t o provide an appropriat e level of process.” Cit izen Cent er v. Gessler, 770 F.3d 900, 916 ( 10t h Cir. 2014) ( cit at ions om it t ed) , cert . denied, 135 S.Ct . 1896 ( 2015) . The defendant s concede t he plaint iff has alleged his cont inued enrollm ent in t he HCC’s nursing school is a prot ect ed propert y int erest . Because discovery would be needed on t he fact ors relevant t o t his det erm inat ion, t he defendant s will assum e a propert y int erest for purposes of t his m ot ion. The defendant s, however, cont end t he plaint iff has failed t o allege how HCC has provided insufficient process t o prot ect any claim ed propert y int erest in cont inued enrollm ent . The defendant s cont end t he correct ive act ion cont ract addressed deficiencies in Coffm an’s academ ic perform ance which m eans t hat his dism issal for not signing t he correct ive act ion cont ract also involves a j udgm ent academ ic in nat ure. Thus, t he defendant s argue for applying t he less rigorous due process requirem ent s used when academ ic j udgm ent is involved: Wit h regard t o school decisions, different st andards are used depending on whet her t he school m akes an academ ic j udgm ent or a disciplinary det erm inat ion. There are less st ringent procedural requirem ent s in t he case of academ ic dism issals. To sat isfy Due Process prior t o t erm inat ion or suspension of a st udent for deficiencies in m eet ing m inim um academ ic perform ance, [ school aut horit ies] need 25 only advise t hat st udent wit h respect t o such deficiencies in any form . Disciplinary act ions require t hat t he st udent be given oral or writ t en not ice of t he charges against him , and if he denies t hem , an explanat ion of t he evidence t he aut horit ies have and an opport unit y t o present his side of t he st ory. The hearing before t he school need not be form al, but m ay be an inform al give- and- t ake and t here need be no delay bet ween t he t im e not ice is given and t he t im e of t he hearing. Brown v. Universit y of Kansas, 16 F. Supp. 3d 1275, 1289 ( D. Kan. 2014) ( int ernal quot at ion m arks and cit at ions om it t ed) , aff’d, 599 Fed. Appx. 833 ( 10t h Cir. Jan. 13, 2015) . I n alleging t his claim , t he plaint iff adm it s his dism issal was an academ ic j udgm ent based on his refusal t o sign t he proposed correct ive cont ract which addressed his academ ic perform ance deficiencies in t he clinic program . As set out above, t he cont ract discussed Coffm an’s deficiencies in com plet ing t he requirem ent s of a clinic class, in using appropriat e com m unicat ions in a clinical set t ing, in scheduling and at t ending clinic sessions, in engaging in appropriat e use of clinical t im e, and in com m unicat ing wit h t he inst ruct ors. The nat ure of t hese deficiencies is principally academ ic in charact er as all relat e t o Coffm an’s perform ance in t he clinical program . See Roach v. Universit y of Ut ah, 968 F.Supp. 1446, 1453 ( D. Ut ah 1997) . Academ ic dism issal m ay include grounds such as appearance, m at urit y of behavior, and t im eliness, because t hese can be significant fact ors in det erm ining whet her a st udent will be a good nurse or doct or. See, e.g., Board of Curat ors of Universit y of Missouri v. Horowit z, 26 435 U.S. 78, 91 n.6 ( 1978) ; Hennessy v. Cit y of Melrose, 194 F.3d 237, 242- 43, 251 ( 1st Cir. 1999) . I n j ust ifying t he less rigorous due process prot ect ion for academ ic dism issal, t he Suprem e Court dist inguished disciplinary dism issal from academ ic dism issal not ing t hat t he form er carried t he possibilit y of error and j ust ified a st udent ’s need t o present his side while t he form er involved, “ t he det erm inat ion whet her t o dism iss a st udent for academ ic reasons requires an expert evaluat ion of cum ulat ive inform at ion and is not readily adapt ed t o t he procedural t ools of j udicial or adm inist rat ive decisionm aking.” Horowit z, 435 U.S. at 90. For an academ ically dism issed st udent , due process is sufficient if t here is prior not ice of facult y dissat isfact ion wit h perform ance and of t he possibilit y of dism issal, and t he decision t o dism iss m ust be careful and deliberat e. Trot t er v. Regent s of Universit y of New Mexico, 219 F.3d 1179, 1185 ( 10t h Cir. 2000) ( cit ing Schuler v. Universit y of Minn., 788 F.2d 510, 514 ( 8t h Cir. 1986) , cert . denied, 479 U.S. 1056 ( 1987) ) . “ [ T] he Suprem e Court [ has] held t hat t he due process clause does not require t hat a st udent dism issed from a st at e m edical school for academ ic reasons be given a hearing.” Trot t er, 219 F.3d at 1185 ( cit ing Horowit z, 435 U.S. at 86- 90) . A school’s failure “ t o follow it s own regulat ions,” “ it s own academ ic rules,” or “ it s own grievance appeal procedures” does not give rise t o a procedural due process claim . Trot t er, 27 219 F.3d at 1185 ( cit ing Horowit z, 435 U.S. at 92; Schuler, 788 F.2d at 515) . For a subst ant ive due process claim against an academ ic decision, t he plaint iff m ust assert “ t he decision was t he product of arbit rary st at e act ion rat her t han a conscient ious, careful and deliberat e exercise of professional j udgm ent .” Gosset t v. Oklahom a ex rel. Bd. of Regent s for Langst on Universit y, 245 F.3d 1172, 1182 ( 10t h Cir. 2001) ( cit ing Regent s of t he Univ. of Mich. v. Ewing, 474 U.S. 214, 224- 25 ( 1985) ) . “ A plaint iff m ay m ake such a showing by evidence t hat t he challenged decision was based on ‘nonacadem ic or const it ut ionally im perm issible reasons,’ rat her t han t he product of conscient ious and careful deliberat ion.” I d. The plaint iff openly alleges t hat in his earlier m eet ing wit h Ballard and Sanchez and in t he lat er correct ive act ion cont ract sent t o him he received prior not ice of facult y’s dissat isfact ion wit h his perform ance. There is no disput e t hat t he cont ract cont ained t he following warning j ust below his signat ure line, “ Failure t o sign will result in dism issal from t he program .” On t he face of his allegat ions, t he plaint iff cannot bring a claim for having been denied const it ut ionally sufficient not ice. The plaint iff goes on t o allege t hat when he t ook issue wit h t he cont ract , t he nursing depart m ent chairperson, Ms. Hackler, asked him t o at t end a facult y fact s and findings m eet ing. Coffm an said he would at t end but t hat he would have his legal counsel appearing also by conference call 28 and t hat his fat her would also be present . Ms. Hackler t old t he plaint iff t hat he could not have t hese persons present at t his m eet ing. When t he plaint iff insist ed ot herwise, Ms. Hackler inform ed t he plaint iff t hat his sum m er sem est er grades would not be changed. And when t he plaint iff cont inued t o argue wit h Ms. Hackler, “ she becam e even m ore agit at ed and t old t he Plaint iff t hat he was officially kicked out of t he R.N. program for academ ic reasons and was no longer allowed t o at t end” HCC. ECF# 7, p. 8. The plaint iff alleges a denial of due process from being denied legal represent at ion at a hearing before dism issal and from t hen being academ ically dism issed when he had passing grades. Neit her circum st ance const it ut es a valid due process claim . Due process does not require a prior hearing before an academ ic dism issal which doom s any claim based on legal represent at ion at one. The plaint iff’s circum st ances here would not m ake out a const it ut ional claim t o be represent ed by ret ained counsel. See Rust ad v. U.S. Air Force, 718 F.2d 348, 350 ( 10t h Cir. 1983) ( no const it ut ional right t o counsel before disenrollm ent from academ y for disciplinary infract ions) . His passing grades do not ot herwise prevent an academ ic dism issal on ot her grounds such as t hose out lined in t he correct ive act ion cont ract which he refused t o sign and t o com plet e wit h his own percept ion of t he event s. See Yaldo v. Wayne St at e Universit y, 266 F.Supp.3d 988, 1005 ( E.D. Mich. 2017) ( “ [ D] ism issing a m edical st udent for lack of professionalism is academ ic evaluat ion. Al- Dabagh v. Case W. Reserve Univ., 777 F.3d 355, 29 360 ( 6t h Cir.) , cert . denied, - - - U.S.- - - , 135 S.Ct . 2817 ( 2015) ( em phasizing t hat ‘academ ic evaluat ions’ m ay perm issibly ext end beyond raw grades and ot her obj ect ive crit eria) .” Nor does Coffm an’s filing of a st udent grievance and t he t riggering of st udent handbook procedures t ie t he hands of school st aff in det erm ining an academ ic dism issal. Sim ply put , a due process claim is not st at ed m erely from st aff’s failure t o follow t he school’s own grievance rules and procedures. The plaint iff has not alleged fact s showing t hat his academ ic dism issal was not a conscient ious, careful and deliberat e exercise of professional j udgm ent . The learning cont ract for correct ive act ion ident ified t he st udent academ ic behavior in quest ion and discussed t he fair expect at ions im posed on st udent behavior. The plaint iff does not allege how any of t he im posed correct ive act ions would be unreasonable, unfair, or discrim inat ory. The plaint iff’s disput e principally lies wit h whet her his academ ic behavior should have ever been quest ioned and m ade t he subj ect of a correct ive act ion cont ract . Such m at t ers clearly fall wit hin t he realm of academ ic discret ion concerning appropriat e clinic st udent behavior in t he nursing program t hat is ent it led t o deference. See Al- Dabagh, 777 F.3d at 359 ( Overt urning t he decision t o dism iss a st udent based on m ult iple allegat ions of unprofessional conduct would put t he court in t he posit ion of “ decid[ ing] for ourselves whet her he behaved in a sufficient ly professional way t o m erit a degree,” which “ goes beyond our j ob descript ion.” ) . The 30 plaint iff’s conclusory allegat ions of ill will by his inst ruct ors fail t o st at e a due process claim , procedural or subst ant ive. They rest on no m ore t han his disagreem ent wit h t he inst ruct ors’ exercise of t heir academ ic discret ion and j udgm ent upon his perform ance as a clinical nursing st udent . His allegat ions do not evidence how t his discret ion and j udgm ent by it s nat ure or by t he m anner it was used would sust ain a reasonable inference of arbit rariness, ill will, or discrim inat ion. The plaint iff m akes som e random and conclusory allegat ions of possible discrim inat ory m ot ives wit hout any support ing subst ant ive allegat ions t ending t o show knowledge or ot her circum st ances indicat ive of a discrim inat ory m ot ive. Finally, t he plaint iff exhaust ed t he st udent grievance appeal process at t hree different levels, all of which affirm ed his academ ic dism issal aft er receiving and reviewing his present at ion. See Trot t er, 219 F.3d at 1185 ( “ The num ber of appeals and review hearings afforded Trot t er convince us t hat t he Medical School’s decision was careful and deliberat e.” ) The plaint iff has not alleged any const it ut ional deficiencies wit h t his appeal process. The court agrees wit h t he defendant s t hat t he plaint iff has failed t o plead a due process claim and t hat t he fact s as known and alleged would not support a claim for relief. Equal Prot ect ion As out lined above, t he plaint iff here claim s he is a class of one who was int ent ionally t reat ed different ly from ot hers sim ilarly sit uat ed 31 wit hout a rat ional basis for doing so. The Suprem e Court in Village of Willowbrook v. Olech, 528 U.S. 562, 564 ( 2000) , recognized t he exist ence of an equal prot ect ion claim in a zoning disput e, “ where t he [ single] plaint iff alleges t hat she has been int ent ionally t reat ed different ly from ot hers sim ilarly sit uat ed and t hat t here is no rat ional basis for t he difference in t reat m ent .” I d. “ ’The paradigm at ic “ class of one” case, sensibly conceived, is one in which a public official, wit h no conceivable basis for his act ion ot her t han spit e or som e ot her im proper m ot ive ( im proper because unrelat ed t o his public dut ies) , com es down hard on a hapless privat e cit izen.’” Kansas Penn Gam ing, LLC v. Collins, 656 F.3d 1210, 1216 ( 10t h Cir. 2011) ( quot ing Laut h v. McCollum , 424 F.3d 631, 633 ( 7t h Cir. 2005) ) . The plaint iff’s burden in bringing such a claim and t he j udicial concerns raised by such a claim have been discussed by t he Tent h Circuit : To prevail on t his t heory, a plaint iff m ust first est ablish t hat ot hers, “ sim ilarly sit uat ed in every m at erial respect ” were t reat ed different ly. Jicarilla Apache Nat ion v. Rio Arriba Count y, 440 F.3d 1202, 1210 ( 10t h Cir.2006) . A plaint iff m ust t hen show t his difference in t reat m ent was wit hout rat ional basis, t hat is, t he governm ent act ion was “ irrat ional and abusive,” id. at 1211, and “ wholly unrelat ed t o any legit im at e st at e act ivit y,” Mim ics, I nc. [ v. Vill. of Angel Fire] , 394 F.3d [ 836] at 849 [ ( 10t h Cir. 2005) ] ( quot at ion om it t ed) . This st andard is obj ect ive—if t here is a reasonable j ust ificat ion for t he challenged act ion, we do not inquire int o t he governm ent act or's act ual m ot ivat ions. Jicarilla Apache Nat ion, 440 F.3d at 1211. We have approached class- of- one claim s wit h caut ion, wary of “ t urning even quot idian exercises of governm ent discret ion int o const it ut ional causes.” I d. at 1209. I n Jennings v. Cit y of St illwat er, 383 F.3d 1199, 1210–11 ( 10t h Cir. 2004) , for exam ple, we discussed t he risks such a claim could pose t o ordinary governm ent decisionm aking: 32 [ T] he concept of a class- of- one equal prot ect ion claim could effect ively provide a federal cause of act ion for review of alm ost every execut ive and adm inist rat ive decision m ade by st at e act ors. I t is always possible for persons aggrieved by governm ent act ion t o allege, and alm ost always possible t o produce evidence, t hat t hey were t reat ed different ly from ot hers, wit h regard t o everyt hing from zoning t o licensing t o speeding t o t ax evaluat ion. I t would becom e t he t ask of federal court s and j uries, t hen, t o inquire int o t he grounds for different ial t reat m ent and t o decide whet her t hose grounds were sufficient ly reasonable t o sat isfy equal prot ect ion review. This would const it ut e t he federal court s as general- purpose secondguessers of t he reasonableness of broad areas of st at e and local decisionm aking: a role t hat is bot h ill- suit ed t o t he federal court s and offensive t o st at e and local aut onom y in our federal syst em . These concerns are m agnified wit h challenges t o low- level governm ent decision- m aking, which oft en involves a great deal of discret ion. The lat it ude afforded police officers, I RS agent s, universit y adm inist rat ors, zoning officials, and ot her, sim ilar governm ent act ors necessarily result s in a sizeable am ount of random variat ion in out com e. I f even innocuous inconsist encies gave rise t o equal prot ect ion lit igat ion, governm ent act ion would be paralyzed. Kansas Penn Gam ing, LLC v. Collins, 656 F.3d at 1216–17. I n furt herance of t hese concerns, t he Tent h Circuit has “ recognized a ‘subst ant ial burden’ t hat plaint iffs dem onst rat e ot hers ‘sim ilarly sit uat ed in all m at erial respect s’ were t reat ed different ly and t hat t here is no obj ect ively reasonable basis for t he defendant ’s act ion.” I d. at 1217 ( quot ing Jicarilla Apache Nat ion, 440 F.3d at 1212. Applying t his “ refined fram ework” wit hin t he plausibilit y st andard governing a m ot ion t o dism iss, t he Tent h Circuit has concluded t hat a plaint iff “ m ust offer enough specific fact ual allegat ions t o ‘nudge[ ] t heir claim s across t he line from conceivable t o plausible.’” I d. ( quot ing Twom bly, 550 U.S. at 570) . 33 I n recognizing t his “ class- of- one t heory of equal prot ect ion,” t he Suprem e Court has used it in sit uat ions of arbit rary governm ent classificat ions t hat involved t he applicat ion of clear st andards and result ed in depart ures readily assessed. Engquist v. Oregon Dep't of Agricult ure, 553 U.S. 591, 602 ( 2008) ; see Planned Parent hood Associat ion of Ut ah v. Herbert , 828 F.3d 1245, 1254 ( 10t h Cir. 2016) . The Court in Engquist dist inguished t hose sit uat ions where t he governm ent body or officials are exercising discret ionary aut horit y t o m ake subj ect ive and individualized det erm inat ions. I d. The Tent h Circuit in Herbert quot ed from Engquist : The Court t hen concluded t hat “ [ t ] here are som e form s of st at e act ion ... which by t heir nat ure involve discret ionary decisionm aking based on a vast array of subj ect ive, individualized assessm ent s.” I d. at 603, 128 S.Ct . 2146. “ I n such cases,” t he Court held, “ t he rule t hat people should be ‘t reat ed alike, under like circum st ances and condit ions' is not violat ed when one person is t reat ed different ly from ot hers, because t reat ing like individuals different ly is an accept ed consequence of t he discret ion grant ed.” I d. “ I n such sit uat ions,” t he Court explained, “ allowing a challenge based on t he arbit rary singling out of a part icular person would underm ine t he very discret ion t hat such st at e officials are ent rust ed t o exercise.” I d. Ult im at ely, t he Court concluded t hat “ [ t ] his principle applies m ost clearly in t he em ploym ent cont ext , for em ploym ent decisions are quit e oft en subj ect ive and individualized, rest ing on a wide array of fact ors t hat are difficult t o art iculat e and quant ify.” I d. at 604, 128 S.Ct . 2146. The Court st at ed t hat , “ [ u] nlike t he cont ext of arm 'slengt h regulat ion, such as in Olech, t reat ing sim ilarly sit uat ed individuals different ly in t he em ploym ent cont ext is par for t he course.” I d. “ Thus,” t he Court held, “ t he class- of- one t heory of equal prot ect ion—which presupposes t hat like individuals should be t reat ed alike, and t hat t o t reat t hem different ly is t o classify t hem in a way t hat m ust survive at least rat ionalit y review—is sim ply a poor fit in t he public em ploym ent cont ext .” I d. at 605, 128 S.Ct . 2146. “ To t reat em ployees different ly,” t he Court st at ed, “ is not t o classify t hem in a way t hat raises equal prot ect ion concerns.” I d. “ Rat her,” t he Court st at ed, “ it is sim ply t o exercise t he broad discret ion t hat t ypically 34 charact erizes t he em ployer- em ployee relat ionship.” I d. And, t he Court st at ed, “ [ a] challenge t hat one has been t reat ed individually in t his cont ext , inst ead of like everyone else, is a challenge t o t he underlying nat ure of t he governm ent act ion.” I d. Herbert , 828 F.3d at 1254- 55. Ot her court s have ext ended t he analyt ical st ruct ure offered in Engquist for t he public em ploym ent set t ing t o t he cont ext of a st udent bringing a class- of- one equal prot ect ion claim against an inst ruct or or educat ional inst it ut ion: These court s have “ found t he public educat ion cont ext an equally poor fit for class- of- one equal prot ect ion claim s due t o t he inherent ly discret ionary decisionm aking t hat occurs t here.” Nofsinger v. Virginia Com m onwealt h Univ., 12–236, 2012 WL 2878608, at * 11 ( E.D.Va. July 13, 2012) ( and also not ing t he “ delet erious effect s t hat would befall our public inst it ut ions of higher educat ion if const it ut ional quest ions const ant ly arose out of grades and evaluat ions.” ) . See also Yan v. Penn St at e Univ., 10–00212, 2010 WL 3221828, at * 5–6 ( M.D.Pa. Aug.13, 2010) ( holding t hat Engquist precluded t he plaint iff from bringing a class of one t heory of Equal Prot ect ion against t he universit y for her expulsion from a Ph.D. program .) . The Court agrees w it h t he cit ed cases and finds t hat t he class of one Equal Prot ect ion claim is a poor fit for t he fact s. Here, t here is no clear st andard by which Dr. Bauer evaluat ed st udent s ret aking part s of her class, for she t est ified t hat she had t he discret ion t o allow cert ain st udent s who failed port ions of her class t o redo t hose specific port ions. Given no clear st andard and Dr. Bauer's discret ion t o fashion how she conduct s her class and allows st udent s t o ret ake port ions of her class, t he case falls out side of Olech, and wit hin Engquist 's class of one t heory of Equal Prot ect ion bar. Reyes v. Bauer, 2013 WL 3778938, at * 9- * 10 ( E.D. Mich. Jul. 18, 2013) ; see also, Salau v. Dent on, 139 F.Supp.3d 989, 1007 ( W.D. Mo. 2015) ( “ Because of t he discret ionary nat ure of t he st udent disciplinary proceedings, t his act ion is not suit ed for a ‘class of one’ t heory.” ) ; Zim m eck v. Marshall Universit y Bd. of Governors, 2014 WL 108668, at * 5 ( S.D.W.Va. 35 2014) ( class- of- one t heory does not apply in public educat ion set t ings) . The general inapplicabilit y of Engquist ’s analysis t o t he public educat ion set t ing is plain and persuasive. The court finds t hat t he plaint iff’s class- of- one equal prot ect ion claim is unavailable here. Even presum ing t he plaint iff could bring equal prot ect ion claim s on a class- of- one t heory in t his academ ic set t ing, he is unable t o allege t he fact s needed t o sat isfy t he exact ing st andards required for such a claim . Not hing he has subm it t ed shows he can adequat ely allege t hat he was sim ilarly- sit uat ed t o anot her st udent in all m at erial respect s based on behavior, at t it ude, experience, and perform ance in t he clinical set t ing. As t he learning cont ract dem onst rat es, t here are m ult iple and subj ect ive variables m at erial t o t he academ ic decision concerning t he need and t erm s of a correct ive act ion learning cont ract . I t is insufficient t o allege only generally t hat ot hers are com parable and sim ilar because t hey are clinical st udent s who m ay have m issed a class and did not receive a correct ive act ion cont ract . This does not am ount t o specific fact ual allegat ions plausibly showing how anot her st udent is sim ilarly sit uat ed in every m at erial respect . For t hat m at t er, t he plaint iff’s com plaint is insufficient in alleging how t he learning correct ive act ion cont ract is wholly arbit rary and com plet ely lacking in any legit im at e j ust ificat ion. That t he decision t o issue t his cont ract was subj ect ive and m ay have been influenced by subj ect ive personal feelings does not aut om at ically equat e wit h an act ion t hat is wholly arbit rary and 36 wit hout j ust ificat ion. This is all t he plaint iff can allege, which is not enough t o st at e a claim under t his t heory. The court dism isses t he plaint iff’s equal prot ect ion claim s and is not persuaded t hat an opport unit y t o am end would yield a plausible equal prot ect ion claim on t he known fact s. Breach of Cont ract The plaint iff list s “ 7.) Breach of cont ract ” as one of his claim s. ECF# 7, p. 1. At page 20, t here appears t he subheading, “ 3. Breach of Cont ract ,” wit h t he allegat ion t hat during his grievance appeal process, “ Regent s of t he appeals com m it t ee on t he record refer t o t he signed st udent handbook as a cont ract .” This subheading appears under t he general heading of “ Due Process,” and t he surrounding allegat ions point only t o a due process claim . Read liberally, t he plaint iff’s cont ract claim could be const rued as based on t hese lat er allegat ions: The Hut chinson Com m unit y College Handbook is t he cont ract bet ween St udent and Universit y. The rules for disciplinary dism issal are clear and defined t hen handbook. First t here m ust be an invest igat ion int o t he allegat ions, by t he President Dr. Cart er Files office and t he st udent m ust be allowed t o st ay in classes unt il t he invest igat ion has concluded. Then only if t he evidence clear cut breach of St udent conduct rules, can eit her Tier 1 or Tier 2, punishm ent s can be applied. ECF# 7, p. 25. Also regarding t he handbook, t he plaint iff alleges earlier: Hut chinson Com m unit y College handbook is clear as well as t he R.N. program guidelines t hat a st udent m ust pass all course w ork wit h a C average t o st ay in t he program . Hut chinson Com m unit y College rules and regulat ions for academ ic dism issal are clearly defined in { exhibit 1 academ ic rules for dism issal} t hat a st udent m ust m aint ain a passing G.P.A. of great er t han a 1.7 cum ulat ive or be placed on academ ic probat ion for a sem est er. Only if t he cum ulat ive G.P.A. st ays lower t han a 2.0 over all during t he probat ionary period m ay a st udent be 37 dism issed from t he inst it ut ion. Subsequent ly, in t he grievance sect ion of t he St udent handbook if any st udent has m ade a grievance or disciplinary issue t he st udent will be able t o st ay in t he course sect ion unt il t he invest igat ion by t he Vice President s and President s office have been concluded. { see exhibit 2 st udent handbook exhibit and proves ret aliat ion point of law as he st udent t hat m akes a grievance against an inst ruct or m ust be allowed t o rem ain in classes unt il t he inst ruct or has been invest igat ed first , before any grounds or act ion can be t aken against t he st udent } . ECF# 7, pp. 8- 9. The defendant s sum m arize t hese allegat ions and seek dism issal, because t he plaint iff’s allegat ions fail t o show t hat t he handbook const it ut es a cont ract and, alt ernat ively, t hat it s t erm s were breached. While t he plaint iff refers t o t he st udent handbook, he does not at t ach t he full handbook or all relevant port ions t o his com plaint . Nor does he refer t o or cit e any specific provisions wit hin it as evidencing or j ust ifying a cont ract ual int ent or expect at ion. I n response t o t he defendant s’ m ot ion, t he plaint iff does at t ach copies of HCC’s policies on academ ic st anding, probat ion, dism issal and reinst at em ent , as well as disciplinary proceedings. The plaint iff does not argue how t hese policies evidence a cont ract ual int ent or expect at ion. The defendant HCC point s out t hat what t he plaint iff alleges t o be provisions from a handbook are not from any handbook, but inst ead are no m ore t han t he general school policies found in HCC’s 2014- 15 Cat alog provided t o t he st udent s. To t heir m ot ion, t he defendant s at t ach t his cat alog which t he plaint iff quot ed from in his com plaint . ECF# 71- 4. As not ed by t he defendant s, t he following disclaim er appears at page seven of t he cat alog: This cat alog is for inform at ional purposes only and does not const it ut e a cont ract . Every reasonable effort was m ade t o ensure t hat all 38 inform at ion cont ained herein is accurat e. Hut chinson Com m unit y College reserves t he right , at any t im e, t o change graduat ion requirem ent s, cost s, curricula and cont ent , wit hout not ice. The college furt her reserves t he right t o add or delet e course offerings and ot her inform at ion wit hout not ice. I nform at ion about changes is available from college counselors and advisors or on t he college websit e. ECF# 71- 4, p. 7. The court agrees w it h t he defendant t hat plaint iff’s allegat ions of an act ual, enforceable cont ract exist ing are conclusory and unsupport ed by well- pleaded fact ual allegat ions. There is not hing specifically alleged or cit ed of record t o m ake t he likelihood of any such cont ract a plausible proposit ion. See Borwick v. Universit y of Denver, 569 Fed. Appx. 602, 606 ( 10t h Cir. Jun. 24, 2014) . The quot ed disclaim er plainly st at es t hat t he cat alog does not const it ut e a cont ract and t hat all inform at ion found in it was subj ect t o t he college’s unilat eral change. See Doe v. Oklahom a Cit y Universit y, 406 Fed. Appx. 248, 252 ( 10t h Cir. Nov. 2, 2010) ( affirm ed dism issal based in part on dist rict court ’s conclusion, “ t hat her breach cont ract claim m ust also fail because OCU Law School’s st udent handbook, upon which t he claim was based, plainly st at ed t hat it did not form a cont ract bet ween t he st udent s and t he universit y.” ) . The plaint iff’s reliance on HCC’s general policies found in various publicat ions does not est ablish a cont ract . See Gokool v. Oklahom a Cit y Universit y, 716 Fed. Appx. 815, 818 ( 10t h Cir. Dec. 8, 2017) ( relying on Oklahom a law) . “ A cont ract im plied in fact arises from fact s and circum st ances showing m ut ual int ent t o cont ract .” Mai v. Yout sey, 231 39 Kan. 419, 422, 646 P.2d 475 ( 1982) . The plaint iff has not alleged fact s and circum st ances showing any m ut ual int ent t o cont ract . Even assum ing t here had been sufficient allegat ions of an im plied cont ract based on t he st udent handbook, t he plaint iff’s com plaint fails t o specify t he fact s showing a breach of t he sam e. The plaint iff st rains t o read HCC’s general policy st at em ent s as being t he exact and exclusive cont ract ual t erm s t hat fix HCC’s discret ionary aut horit y over academ ics t o t he specific m at t ers discussed. What t he plaint iff alleges and cit es as t he t erm s of t he handbook, cat alog, or policies are not reasonably suscept ible t o such a st rict reading, part icularly one t hat would narrowly circum scribe HCC’s aut horit y t o regulat e academ ic m at t ers. There are no alleged t erm s of any handbook, cat alog, or policy t o support t he plaint iff’s claim t hat HCC could not dism iss a st udent for academ ic reasons, unless t he st udent ’s GPA falls below a cert ain level or unt il t he grievance invest igat ion and appeal process is com plet ed. I nst ead, t he st udent handbook provides, as t he defendant s quot e, t hat “ St udent s who believe t hey have been t reat ed unfairly wit h regard t o academ ic regulat ions such as academ ic dishonest y, academ ic probat ion and dism issal and reinst at em ent m ay request in writ ing a hearing before t he Vice President of Academ ic Affairs.” ECF# 71- 3, p. 2. The plaint iff has not alleged any violat ion of t his t erm . The plaint iff’s academ ic dism issal was due t o his clinical perform ance and his failure t o sign t he correct ive act ion cont ract . The court finds not hing in t he allegat ions or 40 exhibit s t hat kept HCC from using learning correct ive act ion cont ract s and from dism issing a st udent for not signing t he cont ract as expressly w arned t herein. The court finds t hat t he plaint iff has not alleged a breach of cont ract claim and gives t he court no reason t o believe t hat an am endm ent would cure t hese pleading deficiencies. Kansas Civil Right s Act Because t here is no Kansas st at ut ory act wit h t his t it le, t he defendant s presum e t he pro se plaint iff liberally borrowed allegat ions from t he Michigan federal dist rict court opinion t hat discussed t he Michigan Civil Right s Act , and t he plaint iff m erely subst it ut ed “ Kansas” for “ Michigan.” The com plaint does not cit e any Kansas st at ut es as const it ut ing t he Kansas Civil Right s Act . I f t he plaint iff was int ending t o bring a discrim inat ion claim under t he Kansas Act Against Discrim inat ion ( “ KAAD” ) , K.S.A. 44- 1001 et seq., he has not alleged fact s t hat support a claim of discrim inat ion under anyt hing t hat resem bles a claim of KAAD discrim inat ion. He refers t o him self as possibly com ing wit hin cert ain prot ect ed groups, but he does not allege any fact s t ending t o show discrim inat ory t reat m ent because of his m em bership in a prot ect ed group. Throughout his allegat ions, t he plaint iff assert s conclusory and blanket st at em ent s of “ discrim inat ion” wit hout specifying t hat any such discrim inat ion was because of or by reason of his prot ect ed st at us. The court dism isses t his claim . Kansas Vict im Prot ect ion Act 41 The plaint iff again refers t o som e st at e st at ut ory act by an unknown nam e wit hout a legal cit at ion. He m ent ions “ Kansas Vict im s’ right s law” in connect ion wit h his allegat ion t hat Hackler denied t he plaint iff’s right t o bring fam ily m em bers or counsel t o a “ facult y fact s and findings m eet ing.” ECF# 7, pp. 7- 8. The plaint iff’s allegat ions ut t erly fail t o st at e any claim under t his t it le. Defendant HCC—Municipal Liabilit y under § 1983 Not only has t he plaint iff failed t o st at e a § 1983 const it ut ional violat ion, but he has not alleged t he exist ence of an HCC m unicipal policy or cust om giving rise t o liabilit y under 42 U.S.C. § 1983 pursuant t o Monell v. Depart m ent of Social Services, 436 U.S. 658, 690- 91 ( 1978) . “ [ A] plaint iff m ust show 1) t he exist ence of m unicipal policy or cust om , and 2) t hat t here is a direct causal link bet ween t he policy or cust om and t he inj ury alleged.” Bryson v. Cit y of Oklahom a Cit y, 627 F.3d 784, 788 ( 10t h Cir. 2010) ( cit at ion om it t ed) , cert . denied, 564 U.S. 1019 ( 2011) ; see Hershey v. Kansas Cit y Kansas Com m unit y College, 2017 WL 661581 ( D. Kan. Feb. 17, 2017) ; Chonich v. Wayne Count y Com m unit y College, 973 F.2d 1271, 127880 ( 6t h Cir. 1992) , cert . denied, 512 U.S. 1236 ( 1994) . As t he defendant HCC argues, t he plaint iff, inst ead of alleging t hat HCC violat ed his const it ut ional right s by following a college policy or cust om , seeks relief against HCC for not following it s college policies. The plaint iff has failed t o 42 allege a fact ual basis for m unicipal liabilit y under Monell against HCC and against t he individual defendant s in t heir official capacit y. I ndividual Defendant s—I ndividual Capacit y “ The doct rine of qualified im m unit y shields governm ent officials perform ing discret ionary funct ions from liabilit y for dam ages insofar as t heir conduct does not violat e clearly est ablished st at ut ory or const it ut ional right s of which a reasonable person would have know n.” Toevs v. Reid, 685 F.3d 903, 909 ( 10t h Cir. 2012) ( int ernal quot at ion m arks and cit at ions om it t ed) . A defendant ’s ent it lem ent t o qualified im m unit y is a legal quest ion. Wilder v. Turner, 490 F.3d 810, 813 ( 10t h Cir. 2007) , cert . denied, 552 U.S. 1181 ( 2008) . “ Under t he doct rine of qualified im m unit y, governm ent officials perform ing discret ionary funct ions generally are shielded from liabilit y for civil dam ages insofar as t heir conduct does not violat e clearly est ablished st at ut ory or const it ut ional right s of which a reasonable person would have known.” Tonkovich v. Kansas Bd. of Regent s, 159 F.3d 504, 516 ( 10t h Cir. 1998) ( int ernal quot at ion m arks and cit at ion om it t ed) . This includes adm inist rat ors and inst ruct ors at a com m unit y college. See, e.g., Crawford v. Colum bus St at e Com m unit y College, 196 F. Supp. 3d 766, 776 ( S.D. Ohio 2016) ; Deegan v. Moore, 2017 WL 1194718, at * 8- * 9 ( W.D. Va. Mar. 30, 2017) ; Chandler v. Forsyt h Technical Com m unit y College, 2016 WL 4435227, at * 6- * 7 ( M.D. N.C. Aug. 19, 2016) . 43 As already quot ed from Robbins, “ To ‘nudge t heir claim s across t he line from conceivable t o plausible,’ Twom bly, 127 S.Ct . at 1974, in t his cont ext , plaint iffs m ust allege fact s sufficient t o show ( assum ing t hey are t rue) t hat t he defendant s plausibly violat ed t heir const it ut ional right s, and t hat t hose right s were clearly est ablished at t he t im e.” 519 F.3d at 1249. Tit le 42 of t he Unit ed St at es Code allows an inj ured person t o seek dam ages for t he violat ion of his or her federal right s against a person act ing under color of st at e law. See 42 U.S.C. § 1983. To assert a claim under § 1983, t he plaint iff m ust show ( 1) t hat he had a right secured by t he Const it ut ion and laws of t he Unit ed St at es t hat was violat ed ( 2) by a person who act ed under color of st at e law. Hall v. Wit t em an, 584 F.3d 859, 864 ( 10t h Cir. 2009) . From what t he court has already concluded above, t he plaint iff has failed t he first prong of alleging fact s sufficient t o show a plausible violat ion of const it ut ional right s. “ I f no const it ut ional right would have been violat ed were t he allegat ions est ablished, t here is no necessit y for furt her inquiries concerning qualified im m unit y.” Saucier v. Kat z, 533 U.S. 194, 201 ( 2001) . I f t he plaint iff had alleged fact s giving rise t o a const it ut ional right violat ion against an individual defendant , t hen t he plaint iff has t he burden of also alleging fact s sufficient t o show t hat t he const it ut ional right “ was clearly est ablished at t he t im e of t he conduct in quest ion.” Dahn v. Am edei, 867 F.3d 1178, 1185 ( 10t h Cir. 2017) . A right is clearly est ablished when it is “ sufficient ly clear t hat every reasonable official would have 44 underst ood t hat what he is doing violat es t hat right .” Reichle v. Howards, 566 U.S. 658, 664 ( 2012) ( int ernal quot at ion m arks and alt erat ion om it t ed) . I n short , “ exist ing precedent m ust have placed t he st at ut ory or const it ut ional quest ion beyond debat e.” I d. The Tent h Circuit has st at ed t hat , “ a plaint iff m ay sat isfy t his st andard by ident ifying an on- point Suprem e Court or published Tent h Circuit decision; alt ernat ively, t he clearly est ablished weight of aut horit y from ot her court s m ust have found t he law t o be as plaint iff m aint ains.” Cox v. Glanz, 800 F.3d 1231, 1247 ( 10t h Cir. 2015) ( int ernal quot at ion m arks and cit at ions om it t ed) . The court agrees wit h t he defendant s t hat t he plaint iff has not alleged sufficient fact s t o show t he violat ion of a clearly est ablished const it ut ional right . The court has already discussed t he plaint iff’s deficiencies in alleging any const it ut ional violat ion. Moreover, t he plaint iff has not carried his burden of showing legal aut horit y clearly est ablishing t hat a reasonable official would know his or her conduct was unlawful in issuing and enforcing a correct ive act ion cont ract under t he circum st ances here, in dism issing t he plaint iff from t he nursing program for failure t o sign t he cont ract , and in addressing and reviewing t he plaint iff’s grievance and appeal as was done here. The individual defendant s are ent it led t o dism issal on qualified im m unit y grounds. Tort Claim s Against I ndividual Defendant s 45 The court ’s prior order addressed t he plaint iff’s failure t o com ply wit h K.S.A. § 12- 105b( d) : This provision requires a person assert ing a claim “ against a m unicipalit y or against an em ployee of a m unicipalit y which could give rise t o an act ion brought under t he Kansas t ort claim s act ” t o file a writ t en not ice “ wit h t he clerk or governing body of t he m unicipalit y” t hat cont ains all t he required inform at ion. K.S.A. § 12- 105b( d) . A “ m unicipalit y” includes t he definit ion found at K.S.A. § 12- 105a. Rockers v. Kansas Turnpike Aut horit y, 268 Kan. 110, 115, 991 P.2d 889 ( 1999) . This definit ion expressly includes a “ com m unit y j unior college.” K.S.A. § 12- 105a. Thus, K.S.A. § 12- 105b( d) requires t he plaint iff t o give writ t en not ice t o HCC, as a m unicipalit y, before bringing t ort claim s against it . This requirem ent is “ j urisdict ional like” such t hat , “ [ i] f t he st at ut ory requirem ent s are not m et , t he court cannot obt ain j urisdict ion over t he m unicipalit y.” Myers v. Bd. of Ct y. Com m 'rs of Jackson Ct y., 280 Kan. 869, 877, 127 P.3d 319 ( 2006) . The writ t en not ice requirem ent of K.S.A. § 12- 105b( d) “ is a condit ion precedent t o suit ” and “ under Fed. R. Civ. P. 9( c) , a plaint iff m ust include a st at em ent in his Com plaint alleging t hat he has perform ed t he required not ice.” Wanj iku v. Johnson Count y, 173 F. Supp. 3d 1217, 1236 ( D. Kan. 2016) ( not ing t hat Fed. R. Civ. P. 9( c) provides t hat “ it suffices t o allege generally t hat all condit ions precedent have occurred or been perform ed.” ) The court does not find in t he plaint iff’s form com plaint or in his supplem ent an allegat ion t hat he provided HCC wit h st at ut orily required not ice. The court also finds no m ent ion of t his writ t en not ice in t he plaint iff’s response t o t his m ot ion t o dism iss. I t is cert ainly t he plaint iff’s burden t o est ablish j urisdict ion, and t he plaint iff has not done so in his com plaint or response. Pro se plaint iffs m ust st ill “ allege t he necessary underlying fact s t o support a claim under a part icular legal t heory.” Ham m ons v. Saffle, 348 F.3d 1250, 1258 ( 10t h Cir. 2003) . Under t hese circum st ances, t he court m ay right ly infer t hat t he plaint iff is conceding t hat he did not subst ant ially com ply wit h § 12- 105b( d) and file t he required not ice. Wanj iku, 173 F. Supp. 3d at 1236. “ Because t he Court finds t hat plaint iff concedes he did not file t he required not ice here, allowing plaint iff t o am end his Com plaint ‘would be fut ile as defendant would st ill be ent it led t o j udgm ent on t he pleadings for failure t o com ply wit h K.S.A. § 12–105b( d) .’” Wanj iku, 173 F. Supp. 3d at 1237 ( quot ing Debbrecht v. Cit y of Haysville, Kan., 2012 WL 1080527, at * 6 ( D. Kan. Feb. 7, 2012) ) . Finding it lacks j urisdict ion over any st at e law t ort claim s against HCC or any of it s em ployees, t he court dism isses t he sam e wit hout prej udice and does 46 so wit hout m aking any j udgm ent as t o t he st at e law t ort claim s’ m erit s or as t o t he plaint iff’s abilit y t o sat isfy t his not ice requirem ent in a fut ure suit . I d. ECF# 28, pp. 8- 10. The defendant s do not address any of t he plaint iff’s st at e law t ort claim s in reliance on t his court ’s prior ruling. ECF# 71, p. 1. The plaint iff does not t ake issue wit h t he defendant s’ applicat ion of t hat ruling t o all t he individual defendant s. I T I S THEREFORE ORDERED t hat t he defendant s’ second m ot ion t o dism iss ( ECF# 70) is grant ed; I T I S FURTHER ORDERED t hat t he plaint iff’s m ot ions for ruling ( ECF# 106 and 107) are grant ed insofar as t his order is filed and are denied in all ot her respect s. Dat ed t his 22 nd day of June, 2018, Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 47

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