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Sherman v. Kelly

United States District Court, D. Oregon, Portland Division

February 8, 2017

SYLVIA KELLY, et al., Defendants.


          MICHAEL W. MOSMAN Chief United States District Judge.

         On November 3, 2016, Defendants filed their Motion for Summary Judgment [23]. Ms. Sherman failed to respond. For the reasons stated below, I GRANT Defendants' Motion.


         Ms. 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.

         During 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.

         In 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.


         Summary 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.

         The 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).


         I. Claim I

         A 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.

         II. Claim II

         Ms. 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 ...

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