United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge.
November 3, 2016, Defendants filed their Motion for Summary
Judgment . Ms. Sherman failed to respond. For the reasons
stated below, I GRANT Defendants' Motion.
Sherman was enrolled in classes at Portland Community College
(“PCC”) during the winter, spring, and a portion
of the summer terms of the 2013-2014 academic year. During
the winter term, which began on January 6, 2014 and ended on
March 23, 2014, Ms. Sherman took a class from Defendant
Abbot-Smith, for which she received a “C” grade.
Shortly after receiving the grade, Ms. Sherman contacted
Defendant Wenger, the Division Dean for Arts and Professions
at PCC's Cascade Campus, and expressed concerns regarding
Defendant Abbot-Smith. Defendant Wenger provided Ms. Sherman
with information regarding PCC's formal student complaint
and grade appeal forms. Ms. Sherman filed her formal grade
appeal on May 7, 2014, with the Cascade Campus Dean of
Student Development's office. At the time, Defendant
Reisser was the head of that office. Five days later, the
office informed Ms. Sherman that it could not process her
appeal because she had failed to reach out to Defendant
Abbot-Smith within 14 days of the grade being posted.
her time as a student at PCC, Ms. Sherman was deemed eligible
for disability accommodations. As such, she had several
interactions with PCC's Disability Services office and
Defendant McKenna, a disability services counselor. To
receive accommodations, Ms. Sherman was required to make
specific requests to Disability Services.
response to her treatment by school officials regarding the
grade and her disability, Ms. Sherman filed suit on May 18,
2016. Although it is somewhat hard to tell, Ms. Sherman
appears to allege violations to Title II of the Americans
with Disabilities Act (“ADA”), Section 504 of the
Rehabilitation Act (“RA”), Title VI of the Civil
Rights Act (“CRA”), and substantive due process.
Defendants moved for summary judgment on these claims, and
Ms. Sherman failed to respond.
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). If a party “fails to make a showing sufficient
to establish the existence of an element essential to that
party's case, ” for example, the court should enter
summary judgment in favor of the opposing party. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The initial
burden for a motion for summary judgment is on the moving
party to identify the absence of a genuine issue of material
fact. Id. at 323. Once that burden is satisfied, the
burden shifts to the non-moving party to demonstrate, through
the production of evidence listed in Rule 56(c)(1), that
there remains a “genuine issue for trial.”
Id. at 324.
non-moving party may not rely upon the pleading allegations.
See Brinson v. Linda Rose Joint Venture, 53 F.3d
1044, 1049 (9th Cir. 1995) (citing Fed. R. Civ. P 56(e)).
Additionally, a “summary judgment motion cannot be
defeated by relying solely on conclusory allegations
unsupported by factual data.” Taylor v. List,
880 F.2d 1040, 1045 (9th Cir. 1989). Indeed, a
“conclusory, self-serving affidavit, lacking detailed
facts and any supporting evidence, is insufficient to create
a genuine issue of material fact.” F.T.C. v.
Publ'g Clearing House, 104 F.3d 1168, 1171 (9th Cir.
1997). “[T]he court's ultimate inquiry is to
determine whether the ‘specific facts' set forth by
the nonmoving party, coupled with undisputed background or
contextual facts, are such that a rational or reasonable jury
might return a verdict in its favor based on that
evidence.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987). All reasonable doubts and inferences to be drawn from
the facts are to be viewed in the light most favorable to the
non-moving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see
also, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
Ms. Sherman's first claim, she asserts that Defendant
Kelly, PCC's former interim president, “should have
been aware” of the prior complaints against Defendant
Abbot-Smith and “should have been aware of Mr. Wenger,
Dr. Linda Reisser and Ms. Ruth McKenna.” These
assertions do not state a cognizable legal theory upon which
relief can be granted. Moreover, based on the record,
Defendant Kelly was not even an employee at PCC until after
Ms. Sherman was no longer enrolled as a student. As such, any
alleged injuries cannot be attributed to Defendant Kelly, and
Defendants are entitled to summary judgment on Claim I.
Because no facts can be alleged to properly state a claim for
relief, I DIMISS this claim with prejudice.
Sherman's second claim appears to be based on Defendant
Abbott-Smith's alleged violations of Title II of the ADA,
Section 504 of the RA, and Title VI of ...