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Wani v. George Fox University

United States District Court, D. Oregon, Portland Division

February 22, 2018

SAMUEL W. WANI, Plaintiff,




         Plaintiff, Samuel Wani (“Wani”), proceeding pro se, filed this case on June 29, 2017. Wani alleges various claims against George Fox University (“GFU”), nine GFU employees (collectively with GFU, “the GFU defendants”), including the Dean of Students (Mark Pothoff), the Associate Dean of Students (Dave Johnstone), an administrative employee (Sarah Taylor), six individuals employed in various capacities with GFU's Athletic Department (Gregg Boughton (“Boughton”) (GFU's Head Football Athletic Trainer), Chris Casey (“Casey”) (Head Coach, Defensive Line), John Bates (Defensive Coordinator), Ian Sanders (Special Teams Coordinator), Gabe Haberly (Wide Receiver Coordinator), and Craig Taylor (Director of Athletics)), Providence Medical Group (“Providence”), [1] an orthopedic surgeon (Dr. Thomas Croy (“Dr. Croy”)), and one of Wani's former GFU football teammates (Dominic Fix-Gonzalez).

         Wani alleges that this court has federal question jurisdiction under 28 U.S.C. § 1331, and cites a host of federal statutes. Complaint 6-7, ECF #1. He also alleges that he is a citizen of Washington and that several defendants are from Oregon, seeks $70 million in damages, and invokes jurisdiction based on diversity of citizenship under 28 USC § 1332. Complaint 7-8, ECF #1. Now before the court are the GFU defendants' Rule 12 Motions Against the Complaint (“GFU Defs. Mot.”) (ECF #52). The GFU defendants seek to have all but the fourth of the six enumerated claims alleged by Wani against them dismissed (Motions 1 through 4), and to strike all references in the pleadings to eight federal statutes or statutory compilations (Motions 5 through 12). For the reasons that follow, the motions should be granted.


         I. Motions to Dismiss Under FRCP 12(b)(6)

         A. Enumerated Claims

         Wani separately sets out six claims premised on various legal theories, including: (1) “Cyberbullying, racial verbal harassment” (“First Claim”); (2) “Discrimination, medical false claim, fraud, negligence, and intentional infliction of physical/emotional pain and suffering, ” now identified as “Negligence”[2] (“Second Claim”); (3) Medical fraud, negligence and refusal of treatment, ” now identified as “Negligence” (“Third Claim”); (4) “Racial discrimination and hatred” (“Fourth Claim”); (5) “Wrongful Disclosure of Individually Identifiable Health Information (HIPAA Violations)” (“Fifth Claim”); and (6) Breach of Contract (“Sixth Claim”). Complaint 9-11, ECF #1. The GFU defendants seek dismissal of all claims against them under FRCP 12(b)(6), with the exception of the Fourth Claim.

         B. Allegations of the Complaint and Factual Background

         Wani's claims arise out of two series of interrelated events: (1) one involving an injury to Wani's thumb, and the alleged actions and inaction of the GFU defendants and Dr. Croy related to that injury, and (2) another involving a social media post by Fix-Gonzalez and the alleged actions and inaction of the GFU defendants related to that incident. Wani's allegations regarding his physical injury turn on events that transpired between August 20, 2015, when Wani was hurt during football practice, and November 2016, when Wani had surgery to reconstruct a torn thumb ligament. Complaint 10, ECF #1. His other allegations center on an August 27, 2015 social media post, and the response by GFU employees following Wani's report of the incident about a week later. As supplemented by the documents attached to Wani's Complaint, the record reveals the following:

         Wani's thumb was injured during football practice on August 20, 2015. Wani alleges that Boughton dismissed Wani's injury as a “booboo” that did not merit excusing him from practice. A week later, on August 27, 2015, Wani learned that Fix-Gonzalez had posted a picture of him on social media comparing Wani's looks to that of a toilet mop, altering Wani's skin color to be much darker (“making [him] so black that [he] looked burnt”), and including a caption that he “had to make [Wani] extra crispy by giving [him] some extra vitamin D.” Complaint 9, ECF #1. Fix-Gonzalez allegedly posted additional racial remarks after the post with the picture. Id. After learning that his posts upset Wani, Fix-Gonzalez agreed to remove them. That evening, Casey called Wani to tell him that all the posts had been removed. Other than that, Casey basically advised Wani to “get over it” and that “[t]hings like that are going to be said.” Complaint, Att. 1, at 8, ECF 1-1. Following that conversation, Wani attended only one practice and “felt like [he] didn't belong there.” Id.

         Wani's thumb continued to bother him but Boughton continued to refuse to allow Wani time off practice to have it examined or treated. While dealing with the pain from his thumb injury, Wani alleges he waited in vain for the coaches in GFU's athletic department to report Fix-Gonzalez's social media posts to GFU's administration, leaving Wani in what he contends was a racially hostile environment at school and on the football team. On September 2, 2015, about two weeks post-injury, Wani sought treatment and discovered that his thumb was fractured, resulting in the end of his football season. He withdrew from classes that same day. Complaint, Att. 1, at 8, ECF #1-1 (describing course of events following his discovery of the post by Fix-Gonzalez).

         Two days later, on September 4, 2015, Wani reported the social media posts by Fix-Gonzalez to GFU's Associate Dean of Students and Director of Residence Life, Dave Johnstone (“Johnstone”). Complaint, Att. A, at 1-3, ECF #1-1. That same afternoon, Johnstone conducted an “Investigation Meeting” with Wani. Id. at 6-14. Sarah Taylor took notes and Wani was accompanied by Mike Bujnowski. Id. at 6. Wani alleges that, during the investigation, Boughton falsely denied that he had refused Wani medical treatment and, since the investigation, Craig Taylor has refused to communicate with him except to taunt him and tell him that neither GFU nor its insurer, AIG, will pay for his injury. Complaint 9, ECF #1.

         On September 18, 2015, Mark Pothoff, GFU's Dean of Community Life, issued a letter advising Wani of GFU's “community accountability” decision regarding the cyberbullying incident involving Fix-Gonzalez. Complaint, Att. A, at 1-3, ECF #1-1. Fix-Gonzalez lost his good standing with GFU, was required to write an apology letter to Wani, engage in cultural sensitivity training, and not post any further “lookalike” pictures on any social media. Id. at 1. Additional actions involving the football team were also outlined, but were to be handled by the athletics department. Id. at 2. Finally, with regard to Wani's thumb, the letter advised Wani that Boughton had no authority to deny anyone the ability to seek additional medical treatment, and that Boughton had spoken with Dr. Croy. Id.

         Wani alleges that GFU and its Athletic Department personnel wrongfully refused him medical treatment, that GFU and its insurer improperly refused to pay for needed treatment, and that Dr. Croy, upon whose opinion GFU relied to refuse treatment, lied when he claimed to have examined Wani's thumb or x-rays. Wani seeks damages for past and future medical expenses related to his injured thumb, living expenses, loss of income and reduction in future earning capacity, and compensatory damages for emotional and physical suffering. Complaint, 8-11, ECF #1. Wani also seeks to have Boughton's Athletic Training License and EMT-B certification taken away and to have Dr. Croy's medical license taken away. Complaint 11, ECF #1.

         C. Analysis

         1. First Claim-“Cyber bullying, racial verbal harassment”

         In the First Claim, Wani alleges that the GFU defendants failed to report or adequately respond to Fix-Gonzalez's Instagram postings, thereby subjecting him to a racially-hostile environment at school and on the football team. The GFU defendants contend that this claim fails because nothing in Wani's allegations describes a sufficiently hostile educational environment to support a race-based hostile environment claim and because, once Johnstone was aware of the incident, he took immediate action and no further incidents are alleged to have occurred.

         A hostile environment claim requires a showing that the environment was one in which racial harassment was so severe, pervasive, persistent, and objectively offensive that it deprived the victim of access to the educational opportunities or benefits provided by the school. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, ...

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