[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 2, 2009
No. 08-16903 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00077-CV-RWS-2
SUZANNE SARVER,
Plaintiff-Appellant,
versus
RON JACKSON,
each personally and in their official capacities,
KRISTI CARMAN,
each personally and in their official capacities,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 2, 2009)
Before EDMONDSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Suzanne Sarver, a student at North Georgia Technical College (NGTC)
proceeding pro se, appeals the dismissal of her civil complaint filed pursuant to 42
U.S.C. § 1983 and Title IX, 20 U.S.C. § 1681.1 Sarver argues the district court
erred in dismissing her complaint pursuant to Rule 12(b)(6) for failure to state a
claim upon which relief can be granted. She asserts she sufficiently alleged:
(1) the defendants violated her due process rights under § 1983 before suspending
her from school; (2) the Georgia torts of slander, libel, and defamation of
character; and (3) sexual harassment by the staff and students interfered with her
ability to attend school, and the deliberate indifference of the staff created an
intimidating and hostile school environment. We review each claim in turn. After
de novo review, we affirm the district court’s dismissal of her complaint.2
1
“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir.1998).
2
To survive dismissal for failure to state a claim, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1964-65 (2007). “Factual allegations must be enough to raise a right
to relief above the speculative level.” Id. at 1965. A district court may properly dismiss a
complaint if it rests only on “conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002).
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I. DUE PROCESS CLAIM UNDER § 1983
Sarver argues her due process rights were violated because (1) the school set
the hearing during exams, (2) she was only given a general statement of the
charges, (3) her sanction was arbitrarily increased to a suspension, and (4) her
appeal was ignored because it was sent by e-mail. Sarver also contends the
defendants were not entitled to qualified immunity.
Section 1983 provides a remedy for deprivation of federal statutory and
constitutional rights. Almand v. DeKalb, 103 F.3d 1510, 1512 (11th Cir. 1997).
“In order to prevail on a civil rights action under § 1983, a plaintiff must show that
he or she was deprived of a federal right by a person acting under color of state
law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). A state
official, when sued in his official capacity for damages, is not a person within the
meaning of § 1983. Will v. Michigan Dep’t of State Police, 109 S. Ct. 2304, 2312
(1989).
Furthermore, “[q]ualified immunity protects government officials
performing discretionary functions from suits in their individual capacities unless
their conduct violates ‘clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Andujar v. Rodriguez, 486 F.3d
1199, 1202 (11th Cir. 2007). Qualified immunity is an affirmative defense that
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must be pled, or else it is deemed waived. Skrtich v. Thornton, 280 F.3d 1295,
1306 (11th Cir. 2002). Qualified immunity may be asserted on a pretrial motion to
dismiss under Rule 12(b)(6) for failure to state a claim. Id.
As employees of NGTC, each of the defendants were state officials acting
within the scope of their employment. Accordingly, they were not subject to suit
for damages in their official capacities. Will, 109 S. Ct. at 2312. Furthermore, the
district court correctly dismissed the complaint for damages against the defendants
in their individual capacities as barred by the doctrine of qualified immunity. The
defendants were performing discretionary functions authorized as part of their
employment when determining whether to impose disciplinary sanctions against
Sarver. See Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th
Cir. 2004) (holding a defendant performed a discretionary function if he: “(a)
perform[ed] a legitimate job-related function (that is, pursu[ed] a job-related goal),
(b) through means that were within his power to utilize”). The defendants also
properly raised the defense in their motion to dismiss. See Skrtich, 280 F.3d at
1306. Therefore, they are entitled to qualified immunity unless Sarver can satisfy
the following two-part analysis to defeat qualified immunity: (1) the facts, as
alleged and viewed in the light most favorable to the plaintiff, must establish a
constitutional violation; and (2) the constitutional right violated must be clearly
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established. Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001), abrogated in part by
Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (holding district courts have
discretion as to the order in which to address the two prongs).
With respect to the first prong, Sarver asserts a violation of her
constitutional right to due process. “The fundamental requisite of due process is
the opportunity to be heard, and with regard to student suspensions, students must
be given reasonable notice and an opportunity to have a hearing.” Nash v. Auburn
Univ., 812 F.2d 655, 660, 663 (11th Cir. 1987). Students “have the right to
respond [to the charges], but their rights in the academic disciplinary process are
not co-extensive with the rights of litigants in a civil trial or with those of
defendants in a criminal trial.” Id. at 664. The nature of the hearing will depend
upon the circumstances of the particular case, but, in general, a hearing should give
the student an opportunity to present her side in considerable detail. Dixon v.
Alabama State Bd. of Ed., 294 F.2d 150, 159 (5th Cir. 1961) (“[A] hearing which
gives the Board or the administrative authorities of the college an opportunity to
hear both sides in considerable detail is best suited to protect the rights of all
involved. This is not to imply that a full-dress judicial hearing, with the right to
cross-examine witnesses, is required.”).
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Sarver failed to allege facts establishing a violation of her right to due
process. She indicated in her complaint she was notified of the charges against her
and given an opportunity to be heard and present a defense. Sarver failed to appear
at any scheduled meetings to address the violations with which she was charged.
Sarver was then sent a letter informing her of the charges against her, and notifying
her she was being put on disciplinary probation. Defendants then gave Sarver the
opportunity to appeal and scheduled a hearing date for her appeal, but Sarver did
not attend. Sarver’s decision not to participate in the process does not negate the
fact she was given the opportunity to be heard and present her side.
Because each of the defendants were state officials acting within the scope
of their employment, the district court correctly concluded they were not subject to
suit for damages in their official capacities. Furthermore, the district court
correctly concluded the defendants were entitled to qualified immunity, because
they were performing discretionary functions, and Sarver failed to establish their
conduct violated her constitutional right to due process.
II. STATE LIBEL, SLANDER, AND DEFAMATION CLAIMS
Sarver’s complaint alleged the school officials made false verbal and written
statements about her, and made such statements with the intent to defame Sarver’s
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character. Sarver also contends the defendants should not have blacked out the
names of those making the alleged defamatory and libelous comments.
Under Georgia law, “libel is a false and malicious defamation of another,
expressed in print, writing, pictures, or signs, tending to injure the reputation of the
person and exposing him to public hatred, contempt, or ridicule.” O.C.G.A.
§ 51-5-1. Slander is oral defamation which includes, “uttering any disparaging
words productive of special damage which flows naturally therefrom.” O.C.G.A.
§ 51-5-4.
The district court correctly found Sarver failed to state a claim, as her
complaint failed to identify any specific written or verbal statements attributed to
the defendants. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002) (holding conclusory allegations are insufficient to state a claim).
In fact, Sarver concedes in her brief she did not know who made the statements
which formed the basis of her tort claims. In any case, absent an express waiver by
the state, the Eleventh Amendment bars state law claims against a state in federal
court. Maynard v. Bd. of Regents, 342 F.3d 1281, 1287 (11th Cir. 2003). Georgia
tort law makes it clear it has not waived its sovereign immunity for tort claims
against state officers or employees. See O.C.G.A. § 50-21-25(a). Furthermore, a
tort claim based purely on state law cannot be brought under § 1983. See Almand,
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103 F.3d at 1512 (“[S]ection 1983 must not supplant tort law; liability is
appropriate solely for violations of federally protected rights.”).
III. TITLE IX CLAIM
Sarver’s complaint alleges sexual harassment by the staff and students
interfered with her ability to attend school, and the deliberate indifference of the
staff created an intimidating and hostile school environment. Sarver also contends
the defendants were repeatedly notified of the Title IX violation and did nothing.
Title IX provides, in pertinent part, “[n]o person . . . shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). In Gebser v. Lago Vista Independent Sch. Dist.,
118 S. Ct. 1989 (1998), the Supreme Court held a school district will not be liable
in damages under Title IX for teacher-on-student sexual harassment “unless an
official of the school district who at a minimum has authority to institute corrective
measures on the district’s behalf has actual notice of, and is deliberately indifferent
to, the teacher’s misconduct.” Id. at 1993. Deliberate indifference is defined as
“an official decision by the recipient [of federal funds] not to remedy the
violation.” Id. at 1999. When a Title IX plaintiff seeks damages against a school
district for student-on-student harassment, the harassment must be “so severe,
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pervasive, and objectively offensive that it denied its victims the equal access to
education that Title IX is designed to protect.” Sauls v. Pierce County Sch. Dist.,
399 F.3d 1279, 1284 (11th Cir. 2005).
The district court correctly dismissed Sarver’s Title IX claim, as Sarver’s
complaint failed to allege facts demonstrating any defendants were on notice of the
alleged harassment and demonstrated any deliberate indifference to the matter.
Furthermore, Sarver did not make any non-conclusory allegations about who
harassed her, what that harassment entailed, or how the alleged harassment was on
account of her sex.
For the foregoing reasons, the district court did not err in dismissing
Sarver’s complaint in its entirety. Accordingly, we affirm.
AFFIRMED.
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