Goldman v. Arizona Bd. of Regents (2025)

Case details
Full caption
Robert Cole Stemkowski Goldman v. Arizona Board of Regents
Country
United States
Jurisdiction
Arizona (AZ)
Court
Arizona Supreme Court
Decided
2025
Disposition
Dismissed
Majority
United States (J.) (unanimous Court)
Robert Cole Stemkowski Goldman, Plaintiff, v. Arizona Board of..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3018812Only the Westlaw citation is currently available.United States District Court, D. Arizona.Robert Cole Stemkowski Goldman, Plaintiff,v.Arizona Board of Regents, et al., Defendants.No. CV-25-01420-PHX-JJT|10/29/2025Editor's Note: This decision contains discussion of citationreferences that are incorrect or do not actually exist. Theseinvalid citations appeared in the original court opinion andhave been preserved as written since they are part of theofficial record. Any links to these invalid citations have beenremoved.United States District JudgeORDER*1 At issue is Defendants Arizona Board of Regents(ABOR), Arizona Department of Administration (ADOA),Hyochol Brian Ahn, Gail D. Burd, Dr. Betty Parisek, ChrissyLieberman, Dr. Ronald W. Marx, Peggy Ann Jenkins, JohnArnold, Traci Vezzosi, Theresa Ruzovich, and Dr. MichaelDake's Motion to Dismiss Plaintiff's Amended Complaint(Doc. 34, MTD), to which Plaintiff Robert Cole StemkowskiGoldman filed a Response (Doc. 43, Resp.) and Defendantsfiled a Reply (Doc. 46, Reply).1 The Court finds this matterappropriate for resolution without oral argument. LRCiv7.2(f).I. BACKGROUNDIn the First Amended Complaint (Doc. 28, FAC), Plaintiffalleges the following facts. Plaintiff is a disabled individual,diagnosed with dyslexia, dysgraphia, ADHD, and autismspectrum disorder. (FAC ¶¶ 24, 310.) Additionally, Plaintiffhas bladder issues due to a previous surgery, and thiscondition requires accommodations for restroom breaks.(FAC 24.) In 2019, Plaintiff enrolled at the Universityof Arizona and “proactively established accommodationsthrough the Disability Resource Center (DRC) to ensureacademic success.” (FAC 28.) In 2022, Plaintiff expressedinterest in the College of Nursing (CON), and a DRCcounselor assisted with the confirmation and setup ofPlaintiff's accommodations that were finalized with CON.(FAC ¶¶ 29–31.)The accommodations provided to Plaintiff includednotetaking support and lecture recording, 2.0 to 2.25 timesthe normal test time, text to speech tools, an environmentwith minimal distraction for testing, extra scratch paper,a calculator, and consistent testing sites. (FAC ¶¶ 51–53.) Plaintiff alleges CON did not fully comply with theaccommodation plan. (FAC ¶¶ 54–108.) For example, at timeshe was given only one piece of scratch paper (FAC 66); ittook faculty time to locate a calculator for him (FAC 66);a professor requested a change of testing location (FAC 71); he was sent conflicting times to take his test, denied areview of his test results following the exam, and threatenedwith a failing grade (FAC ¶¶ 73–76, 80–84); he experiencedtechnical difficulties that required assistance from IT (FAC 88); during an exam in which a professor was providedto read the test aloud to him, CON did not provide a singlereader, but instead rotated readers throughout the exam (FAC 96); a testing room had large windows and people passingby created distractions (FAC 97); after he failed an examdue to shortened exam time, he was permitted to retake it butthe second exam was in “a different and more complicatedformat” than the original exam (FAC 130).Plaintiff was removed from the program for failing an exam,and although CON later reinstated him, he was not ableto matriculate with his peers. (FAC ¶¶ 111–20.) After thealleged failures to accommodate, Plaintiff filed a complaintwith the Department of Education's Office for Civil Rights(OCR) on November 30, 2023. (FAC 156.) During hissubsequent clinical rotations in a hospital setting, Plaintiffdid not know certain information, claiming it was because hewas not provided with sufficient accommodations. (FAC ¶¶165–73.) Following poor outcomes in his clinical evaluations,Plaintiff was labeled a safety concern by CON. (FAC 187.)In October 2024, CON faculty became aware of an academicintegrity concern involving Plaintiff's submission of a clinicalevaluation document that had been altered. (FAC 235.)Plaintiff received a seven-day suspension for the academicintegrity violation, which included a written warning andrequired attendance at a mandatory Academic IntegrityWorkshop. (FAC ¶¶ 244, 281.) In December 2024, Plaintiffsuccessfully completed the workshop and was ultimatelypermitted to graduate from CON. (FAC 303.)
Robert Cole Stemkowski Goldman, Plaintiff, v. Arizona Board of..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2*2 On April 28, 2025, Plaintiff filed this lawsuit (Doc. 1),and the FAC—the operative pleading—contains 15 claimsagainst Defendants: (1) violations of the Americans withDisabilities Act (“ADA”), Title II, 42 U.S.C. §§ 12131-34; (2)violations of Section 504 of the Rehabilitation Act (“RA”),29 U.S.C. § 794; (3) unlawful retaliation in violation of theADA, 42 U.S.C. § 12203, and the RA; (4) hostile educationalenvironment in violation of ADA Title II and Section 504of the RA; (5) a claim under 42 U.S.C. § 1983 for denialof procedural due process under the Fourteenth Amendment;(6) a claim under § 1983 for violation of substantive dueprocess under the Fourteenth Amendment; (7) a claim under§ 1983 for violation of the equal protection clause of theFourteenth Amendment; (8) a claim under § 1983 for FirstAmendment retaliation; (9) a claim under § 1983 for violationof right to petition for redress of grievances under the FirstAmendment; (10) a Fourteenth Amendment “stigma-plus”claim under § 1983; (11) breach of contract; (12) breach of theimplied covenant of good faith and fair dealing; (13) negligentmisrepresentation; (14) intentional infliction of emotionaldistress; and (15) defamation. (FAC ¶¶ 307–418.)Defendants—Hyochol Brian Ahn, Gail Burd, Dr. BettyParisek, Chrissy Lieberman, Dr. Ronald W. Marx, Peggy AnnJenkins, John Arnold, Traci Vezzosi, Theresa Ruzovich, andDr. Michael Dake (collectively, “Individual Defendants”), aswell as ABOR and ADOA—now move to dismiss all claimsunder Federal Rule of Civil Procedure 12(b)(6).II. LEGAL STANDARDRule 12(b)(6) is designed to “test[ ] the legal sufficiency of aclaim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).A dismissal under Rule 12(b)(6) for failure to state a claimcan be based on either: (1) the lack of a cognizable legaltheory; or (2) the absence of sufficient factual allegations tosupport a cognizable legal theory. Balistreri v. Pacifica PoliceDep't, 901 F.2d 696, 699 (9th Cir. 1990). When analyzing acomplaint for failure to state a claim, the well-pled factualallegations are taken as true and construed in the light mostfavorable to the nonmoving party. Cousins v. Lockyer, 568F.3d 1063, 1067 (9th Cir. 2009). A plaintiff must allege“enough facts to state a claim to relief that is plausible on itsface.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).“A claim has facial plausibility when the plaintiff pleadsfactual content that allows the court to draw the reasonableinference that the defendant is liable for the misconductalleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citingTwombly, 550 U.S. at 556). “The plausibility standard is notakin to a ‘probability requirement,’ but it asks for more thana sheer possibility that a defendant has acted unlawfully.” Id.“While a complaint attacked by a Rule 12(b)(6) motion doesnot need detailed factual allegations, a plaintiff's obligationto provide the grounds of his entitlement to relief requiresmore than labels and conclusions, and a formulaic recitationof the elements of a cause of action will not do.” Twombly,550 U.S. at 555 (cleaned up and citations omitted). Legalconclusions couched as factual allegations are not entitled tothe assumption of truth and therefore are insufficient to defeata motion to dismiss for failure to state a claim. Iqbal, 556 U.S.at 679–80. However, “a well-pleaded complaint may proceedeven if it strikes a savvy judge that actual proof of those factsis improbable, and that ‘recovery is very remote and unlikely.’” Twombly, 550 U.S. at 556 (quoting Scheuer v. Rhodes, 416U.S. 232, 236 (1974)).III. ANALYSISTo begin with, while the FAC contains specific allegationsof individual Defendants’ actions, the FAC is unclear asto which claims Plaintiff raises against which Defendants.Additionally, the FAC does not state whether Plaintiff issuing the Individual Defendants in their personal or officialcapacity. The Court agrees with Defendants that this pleadingdefect is violative of the Federal Rule of Civil Procedure 8.Defendants have nonetheless provided additional argumentsas to why the Court should dismiss the FAC as if Plaintiffalleges all claims against all Defendants. The Court turns tothese arguments now.A. Jural Entity Status of ADOA*3 In Arizona, a plaintiff may sue a government entity onlyif the state legislature has granted that entity the power tosue or be sued. Braillard v. Maricopa Cnty., 232 P.3d 1263,1269 (Ariz. Ct. App. 2010). Additionally, the powers of anyagency are defined by the statutes creating it. Lazarescu v.Ariz. State Univ., 230 F.R.D. 596, 601 (D. Ariz. 2005). Thestatutes creating ADOA, A.R.S. §§ 41-701 et seq., do notprovide the agency with the power to sue or be sued, andPlaintiff has identified no authority to the contrary. Withoutexplicit statutory authority, ADOA is not a jural entity andcannot be sued. Therefore, the Court will dismiss all claimsagainst ADOA.B. Failure to File a Notice of Claim
Robert Cole Stemkowski Goldman, Plaintiff, v. Arizona Board of..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3Arizona law requires a plaintiff to file a notice of claim witha public entity before suing it for damages under state law.A.R.S. § 12–821.01(A). The notice of claim must set forth“facts sufficient to permit the public entity...to understand thebasis on which liability is claimed” and “a specific amountfor which the claim can be settled and the facts supportingthat amount.” Id. It must be made within 180 days of whenthe cause of action accrues. Id. Claims that do not strictlycomply with the statutory requirements are barred. DeerValley Unified Sch. Dist. No. 97 v. Houser, 152 P.3d 490, 492,496 (Ariz. 2007); see A.R.S. § 12–821.01(A).Plaintiff does not allege in the FAC or argue in his Responsethat he complied with the notice of claim statute, either beforefiling this lawsuit or later, but instead suggests that continuingdamages “restart accrual” and the “statute tolls during disputeresolution process.” (Resp. at 14–15.) Plaintiff cites no lawin support of these assertions, and the notice of claim statuteis clear: “Any claim that is not filed within one hundred andeighty days after the cause of action accrues is barred and noaction may be maintained thereon.” A.R.S. § 12-821.01(A).Therefore, because Plaintiff failed to follow the notice ofclaim statutory requirement, the Court will dismiss Plaintiff'sstate law claims for damages— claims 11 through 15—against all Defendants.C. ADA and RA Claims against Individual DefendantsTitle II of the ADA applies to public entities and provides that“no qualified individual with a disability shall, by reason ofsuch disability, be excluded from participation in or be deniedthe benefits of the services, programs, or activities of a publicentity, or be subject to discrimination by any such entity.”42 U.S.C. § 12132. Further, § 12131 defines public entity toinclude “any State or local government” and “any department,agency, special purpose district, or other instrumentality of aState or States or local government.” Although it is unclearif Plaintiff is asserting these claims against the IndividualDefendants, in any event the individuals do not meet thedefinition of a public entity. Additionally, neither the ADAnor the RA provide a basis for § 1983 claims againststate officials in their personal capacities. Vinson v. Thomas,288 F.3d 1145, 1156 (9th Cir. 2002). Therefore, the Courtwill dismiss claims 1, 2, 3, and 4 against the IndividualDefendants.D. § 1983 ClaimsSection 1983 grants every person a right of action for “thedeprivation of any rights, privileges, or immunities securedby the Constitution and laws.” 42 U.S.C. § 1983. However,§ 1983 is “not itself a source of substantive rights.” Sampsonv. Cnty. of L.A., 974 F.3d 1012, 1018 (9th Cir. 2020). To statea § 1983 claim, Plaintiff “must allege the violation of a rightsecured by the Constitution and laws of the United States,”committed by “a person acting under color of state law.” Westv. Atkins, 487 U.S. 42, 48 (1988).1. Claims against ABOR*4 Plaintiff names ABOR as Defendant in this case.ABOR, a public corporate body governing Arizona's publicuniversities, is authorized to sue and be sued in its own name.A.R.S. § 15-1625(B)(3). But, within the meaning of § 1983,states and state agencies are not considered “persons” whocan be sued for damages. Will v. Mich. Dep't of State Police,491 U.S. 58, 70–71 (1989). Plaintiff seeks only damages inthis case. (FAC 76.) Therefore, to the extent that claims 5through 10, the § 1983 claims, are asserted against ABOR,the Court dismisses them.2. Claims against Individual DefendantsIn the FAC, Plaintiff has failed to specify which Defendant,through their individual actions, has violated the Constitution.In each of the alleged § 1983 claims, detail is lacking toidentify which individual is being named, and whether it is inthe individual's official or personal capacity. Even if the Courtassumes the § 1983 claims are sufficiently specific, the Courtfinds these claims lack merit.Only individual state officials or employees, sued in theirpersonal capacity, qualify as “persons” within the meaning of§ 1983. Hafer v. Melo, 502 U.S. 21, 31 (1991). Courts treatofficial-capacity claims for money damages as claims againstthe State and barred by the Eleventh Amendment. Will, 491U.S. at 70–71; Spears v. Ariz. Bd. of Regents, 372 F. Supp. 3d893, 923 (D. Ariz. 2019). Therefore, to the extent any of the§ 1983 claims are asserted against the Individual Defendantsin their official capacity, claims 5 through 10 fail.a. Personal Capacity of Individual DefendantsFor a person to be liable in his personal capacity undera § 1983 claim, “there must be a showing of personalparticipation in the alleged rights deprivation[.]” Jones v.Williams, 297 F.3d 930, 934 (9th Cir. 2002). Additionally, “[a]plaintiff must allege facts, not simply conclusions, that showthat an individual was personally involved in the deprivation
Robert Cole Stemkowski Goldman, Plaintiff, v. Arizona Board of..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4of his civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194(9th Cir. 1998).The FAC appears to assert all § 1983 claims against allDefendants. Not only did Plaintiff fail to specifically nameDefendants in each claim, but he also failed to allege factsspecific enough to put Defendants on notice as to whichclaims are against them and on what basis.2 To the extent it isappropriate to clarify the claims and identify new allegationsin a brief, Plaintiff's Response fails to clarify the § 1983claims; he simply cites allegations already contained in theFAC and conclusory states that somehow the “specificslink Defendants to procedural-due-process, equal-protection,and/or First Amendment violations.” (Resp. at 11–12.) ButPlaintiff does not explain how the FAC's allegations illustratethat the Individual Defendants, through their individualactions, violated the Constitution and deprived Plaintiff of hiscivil rights. And even if the Court considers the claims asadequately pled, they fail because the Individual Defendantsare entitled to qualified immunity.*5 The doctrine of qualified immunity “protects governmentofficials from liability for civil damages insofar as theirconduct does not violate clearly established statutory orconstitutional rights of which a reasonable person would haveknown.” Sampson, 974 F.3d at 1018. University officials areamong the state actors to whom qualified immunity mayapply. See Hong v. Grant, 403 F. App'x 236, 237 (9th Cir.2010). A qualified immunity analysis in a § 1983 actioninvolves two steps: (1) whether the official's conduct violateda constitutional right; and (2) if so, whether the constitutionalright was “clearly established” at the time of the allegedviolation, such that a reasonable official would have knownhis conduct was unlawful under the circumstances. Hopkinsv. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009). “For a right tobe considered ‘clearly established,’ it is generally importantthat the precedential case law be factually similar to the caseat issue.” Denby v. City of Casa Grande, 668 F. Supp. 3d855, 870 (D. Ariz. 2023). To determine whether a clearlyestablished right exists, the focus is “on whether the officerhad fair notice that her conduct was unlawful.” Kisela v.Hughes, 584 U.S. 100, 104 (2018).As stated supra, Plaintiff sets forth factual allegations inthe first portion of the FAC but does not show how eachDefendant's conduct violated a constitutional right. Indeed,none of the specific allegations are tied to a constitutionalright or mentioned again in the claims section of the FAC.As a result, Plaintiff fails to sufficiently allege facts to meetthe first prong of a § 1983 qualified immunity analysis. TheFAC is also insufficient in identifying a clearly establishedconstitutional right such that any Defendant would haveknown their conduct was unlawful. More specifically, asDefendants point out, the FAC does not state a specificconstitutional right related to his “desired accommodations,his preferred academic pathway, his grades, his academicrecords,” or ultimately his nursing degree. (MTD at 14.)As Defendants further point out, according to Plaintiff'sown non-conclusory allegations, the conduct of Defendantswas the mere exercise of their discretion as universityprofessors and administrators (MTD at 14 (citing Hong,403 F. App'x at 237)), and Plaintiff does not allege factsmaking plausible Defendants’ knowing violation of Plaintiff'sclearly established constitutional rights, let alone cite caselawsupporting that proposition in his Response. (MTD at 11–14;Reply at 10.) Therefore, Plaintiff also fails to allege sufficientfacts to meet the second prong of the § 1983 qualifiedimmunity analysis.Plaintiff asserts in his Response that “qualified-immunitydismissals are generally disfavored because the analysis turnson fact-laden questions—what each official knew, when theyknew it, and whether their response was reasonable.” (Resp. at13–14.) In support of this proposition, Plaintiff cites to severalcases that not only do not support the proposition stated, butone case that does not appear to exist.3 (Resp. at 13–14.)In fact, the Supreme Court has stated, “ ‘we repeatedly havestressed the importance of resolving immunity questions atthe earliest possible stage in litigation’ ” (quoting Hunterv. Bryant, 502 U.S. 224, 227 (1991)), because “qualifiedimmunity is ‘an immunity from suit rather than a meredefense to liability’ ” (quoting Mitchell v. Forsyth, 472 U.S.511, 526 (1985)). Pearson v. Callahan, 555 U.S. 223, 231–32(2009). Throughout the Ninth Circuit, the qualified-immunitydefense has repeatedly been resolved at the “motion-to-dismiss stage if the court can determine, based on thecomplaint itself, that qualified immunity applies.” Evansv. Hawes, 718 F. Supp. 3d 1351, 1372 (D. Nev. 2024).Here, Plaintiff fails to refute Defendants’ contentions that theIndividual Defendants are entitled to qualified immunity, andthe Court will dismiss claims 5 through 10.E. Remaining Claims against ABOR*6 The Court is now left to examine Plaintiff's remainingclaims against ABOR, namely, for discrimination under TitleII of the ADA (claim 1) and the RA (claim 2), unlawfulretaliation under Title II of the ADA and the RA (claim 3),
Robert Cole Stemkowski Goldman, Plaintiff, v. Arizona Board of..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5and a hostile education environment under Title II of the ADA(claim 4). Although Defendants ask the Court to dismiss theFAC in its entirety, they make no specific argument regardingthe inadequacy of claims 1 through 4 as raised against ABOR.1. ADA Title II and RA ClaimsThe RA and Title II of the ADA require that institutions makereasonable accommodations to their “policies, practices,or procedures” for people with disabilities. See 28C.F.R. § 35.130(b)(7); see also 34 C.F.R. § 104.44. Toestablish a prima facie case of a discriminatory denialof accommodations under either the RA or ADA, theplaintiff must show: (1) he is disabled under the Act;(2) he is otherwise qualified, with or without reasonableaccommodation, i.e., he can “meet the essential eligibilityrequirements”; (3) he was “excluded from participation in” or“denied the benefits of the services, programs or activities of”the entity solely because of his disability; (4) the program inquestion “receives federal financial assistance (for the [RA]claim), or is a public entity (for the ADA claim). Zukle v.Regents of Univ. of Calif., 166 F.3d 1041, 1045 (9th Cir. 1999)(citing 42 U.S.C. § 12132 & 29 U.S.C. § 794).Plaintiff claims that he is disabled under the ADAbecause of his dyslexia, dysgraphia, ADHD, and autismspectrum disorder. (FAC 310.) Additionally, withreasonable accommodations, Plaintiff alleges he meets theessential eligibility requirements for participation in theCON. (FAC 310.) Plaintiff further alleges he requiredreasonable accommodations, and these were approved by theUniversity's Disability Resource Center, but the Universityfailed to ensure the accommodations were properly providedand discriminated against him by requiring him to meeta higher passing threshold than his peers and excludinghim from the program, albeit temporarily, through academicdismissal. (FAC ¶¶ 311–12.) Lastly, Plaintiff alleges theUniversity is a public entity and receives federal financialassistance. (FAC 317.) The Court finds Plaintiff has allegedsufficient facts for each element of his claims against ABORof discrimination under Title II of the ADA and the RA(claims 1 and 2) to survive dismissal.2. Unlawful Retaliation ClaimUnder the ADA and RA, a prima facie case of retaliationrequires the plaintiff to show by a preponderance of theevidence that (1) he engaged in a protected activity; (2) hesuffered an adverse action; and (3) the adverse action occurredbecause of the protected activity. Brown v. City of Tucson, 336F.3d 1181, 1187 (9th Cir. 2003); see also 42 U.S.C. § 12203,29 U.S.C. § 794. For the third element of this retaliation test,the standard for the causal link is but-for causation. T.B. exrel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451,473 (9th Cir. 2015); see also Brooks v. Capistrano UnifiedSch. Dist., 1 F. Supp. 3d 1029, 1037 (C.D. Cal. 2014). Thebut-for causation standard requires “that a plaintiff makinga retaliation claim...must establish that his or her protectedactivity was a but-for cause of the alleged adverse actionby the [defendant].” Univ. of Texas Sw. Med. Ctr. v. Nassar,570 U.S. 338, 360 (2013). The alleged adverse action in aretaliation claim must be “reasonably likely to deter [a person]from engaging in protected activity.” See Pardi v. KaiserFound. Hosps., 389 F.3d 840, 850 & n.5 (9th Cir. 2004).*7 Plaintiff claims he engaged in a protected activityby requesting reasonable accommodations and filingmultiple complaints about inadequate implementationof accommodations. (FAC 325.) Plaintiff allegesABOR, through the University, acted adversely bydemanding additional medical documentation to justifythe accommodations, manipulating testing conditionsand evaluation metrics, accusing Plaintiff of academicmisconduct, and temporarily removing Plaintiff from CON.(FAC 326.) Plaintiff alleges these adverse actionsoccurred because Plaintiff made complaints or requestedaccommodations. “Each protected activity by Plaintiff wasfollowed by escalating negative treatment.” (FAC 327.)Therefore, Plaintiff has alleged sufficient facts for each prongof unlawful retaliation and claim 3 against ABOR survivesdismissal.3. Hostile Education Environment ClaimWhile Plaintiff also raises a claim of hostile educationenvironment under the ADA and RA, it is unclear whethersuch a claim is cognizable in this Circuit. “The Ninth Circuithas not held that such a hostile education environment claimis cognizable, [but] it is equally true that the Ninth Circuithas not held that such a claim is not cognizable; rather theNinth Circuit has, at times, assumed that such a claim exists.”Ortiz v. Mayorkas, No. 22-CV-557 JLS (SBC), 2023 WL5183022 at *3 (S.D. Cal. Aug. 11, 2023) (quotations omitted).Some courts have recognized a hostile education environmentclaim based on an analogous claim for harassment under TitleVII, and if properly pled, the claim may be cognizable at thepleading stage. See Ostrofsky v. Dep't of Rehab., No. CIVS-07-0987 MCE EFB PS, 2009 WL 3011578, at *7 (E.D. Cal.Sept. 17, 2009).
Robert Cole Stemkowski Goldman, Plaintiff, v. Arizona Board of..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6A harassment claim under the RA and Title II of the ADAwould then require a plaintiff to show that: “(1) he is aqualified individual with a disability under the [ADA andRA]; (2) he was subject to unwelcome harassment; (3) theharassment was based on his disability or a request for anaccommodation; (4) the harassment was sufficiently severeor pervasive to alter the conditions of his [education] and tocreate an abusive [education] environment; and (5) defendantknew or should have known of the harassment and failedto take prompt effective remedial action.” Id. at *8 (quotingMcConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563(5th Cir. 1998)). While the Court does not decide whether torecognize the claim here, the Court nonetheless applies theelements to determine if Plaintiff's claim can proceed at thisstage.As noted supra, Plaintiff claims that he is disabled under theADA and RA because of his dyslexia, dysgraphia, ADHD,and autism spectrum disorder. (FAC ¶¶ 24, 310.) Plaintiffalleges that he endured ongoing harassment specificallyrelated to his disability and use of accommodations.(FAC 332.) Specifically, he alleges he was subjectto excessive scrutiny during exams, skepticism fromprofessors regarding accommodations, disruption of testingenvironments, dismissive responses to questions, anddifferential treatment and isolation from peers. (FAC 332.)Plaintiff also alleges that the harassment was so severe iteffectively denied him equal access to CON, although he doesnot identify exactly how he was denied equal access. (FAC 333.) Plaintiff also claims that ABOR, through the University,acted intentionally or with deliberate indifference as to howthe hostile environment would affect Plaintiff's education.(FAC 334.) Therefore, Plaintiff alleges enough to give riseto a possible hostile education environment claim. Becauseof the gray area surrounding this claim, the Court finds thatthe hostile education environment theory of disability broughtagainst ABOR under the ADA and RA survives dismissalat this stage of the litigation without determining if it is acognizable claim.4. Remaining Damages*8 Although Plaintiff includes a prayer for punitive damagesin the FAC (FAC at 76), punitive damages are not availablefor Plaintiff's remaining claims—claims 1 through 4 againstABOR—under the ADA and RA. See Barnes v. Gorman,536 U.S. 181, 189 (2002); Alvarado v. Cajun Operating Co.,588 F.3d 1261, 1269 (9th Cir. 2009). And while Plaintiffalso prays for emotional distress damages—albeit couchedas damages for his now-dismissed intentional infliction ofemotional distress claim (FAC at 76)—the Court notesthat emotional distress damages are also not available forPlaintiff's remaining claims against ABOR under the ADAand RA. Cummings v. Premier Rehab Keller, PLLC, 596 U.S.212, 221–22, 230 (2022).IV. DISMISSAL SUMMARYIn sum, the Court dismisses all claims against ADOA andthe Individual Defendants and claims 5 through 14 againstABOR, but the Court preserves claims 1 through 4 againstABOR. Plaintiff requests leave to amend to provide moredetail for each of the claims that lacked particularity inassociating specific Defendants with specific claims. (Resp.at 11.) Defendants argue that amendment would be futile. Forthe reasons explained below, the Court declines to grant leaveto amend any of the dismissed claims.If defective claims in a complaint can be cured, the plaintiffis entitled to amend the complaint before his claims aredismissed with prejudice. Lopez v. Smith, 203 F.3d 1122, 1130(9th Cir. 2000). Here, the Court finds that amendment cannotcure Plaintiff's defective claims. All the state law claims failas a matter of law because Plaintiff did not send the notice ofclaim required under Arizona law. All claims are dismissedas a matter of law against ADOA because it is not a juralentity under Arizona law. All ADA and RA claims againstthe Individual Defendants in their personal capacity fail as amatter of law because the individuals are not public entities.All § 1983 claims are dismissed as a matter of law againstABOR because such claims for damages cannot be broughtagainst a state entity. And all § 1983 claims are dismissedagainst the Individual Defendants in their personal capacitybecause, considering Plaintiff's allegations, the IndividualDefendants are protected by qualified immunity. The Courtfinds that amendment cannot cure these defects, and the Courttherefore denies Plaintiff's request for leave to amend.V. RULE 11In their Reply (Doc. 46 at 2 n.1), Defendants point out—and the Court now confirms—that in the Response, counselfor Plaintiff cites what has become known as a hallucinatorycase, that is, a case that does not appear to exist, in support ofthe proffered proposition that “qualified immunity cannot beresolved now [on a Rule 12(b)(6) motion to dismiss].” (SeeResp. at 13–14 & n.8 (citing “Morley v. City of San Rafael,728 F. App'x 682, 684 (9th Cir. 2018) (reversing premature QIdismissal)”).) Plaintiff's citation leads to an entirely differentcase—an unpublished opinion of the Ninth Circuit reviewing
Robert Cole Stemkowski Goldman, Plaintiff, v. Arizona Board of..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7a district court's grant of summary judgment to a debtor ina case brought by an accounts receivable assignee underthe Uniform Commercial Code. Moreover, a search on thecaselaw databases does not reveal any case with the partiesMorley and City of San Rafael.Another of the cases Plaintiff cites (Resp. at 13–14 & n.8) insupport of the proffered proposition that qualified immunity“cannot be resolved” on a motion to dismiss, Pearson v.Callahan, 555 U.S. 223, 231–32 (2009), actually standsfor the opposite proposition: the Supreme Court states, “‘we repeatedly have stressed the importance of resolvingimmunity questions at the earliest possible stage in litigation’” (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)),because “qualified immunity is ‘an immunity from suit ratherthan a mere defense to liability’ ” (quoting Mitchell v. Forsyth,472 U.S. 511, 526 (1985)).*9 Elsewhere in the Response (Resp. at 7), Plaintiff providesthe quote, “no heightened pleading of legal theories, factssuffice,” citing Johnson v. City of Shelby, 574 U.S. 10, 11(2014), to set forth the motion to dismiss standard. That casedoes not contain that quote. And while the provided shorthandsummary of the decision is not inaccurate, the proposition setforth in that case—that a plaintiff need not specifically allegein the complaint that she is bringing a § 1983 claim to bringone, so long as she raised a claim premised on a constitutionalviolation against a state actor—does not apply to Plaintiff'sclaims here, because he brought his constitutional claims as§ 1983 claims in the FAC.Indeed, Plaintiff cites a number of other propositions in theResponse that are inapplicable because Defendants did notraise the related argument in the Motion. The Court will takethe time to describe just one of these instances: nowhere in theMotion do Defendants raise a sovereign immunity defense.Defendants do raise another argument, that the FAC, althoughlengthy, does not identify which claims are brought againstwhich of the two entity and 10 individual Defendants orwhether the § 1983 claims apply to individual Defendants intheir personal or official capacities. Plaintiff responds, “TheFAC's length reflects complexity, not a Rule 8 defect.” (Resp.at 8.) Plaintiff then argues:This structure also respects sovereign-immunity lines: state entities faceADA/§ 504 claims for appropriaterelief, while individual-capacity §1983 claims supply a vehicle forconstitutional accountability. [See]United States v. Georgia, 546 U.S.151, 158–59 (2006) (Title II validlyabrogates immunity at least whereconduct independently violates theFourteenth Amendment); Tennessee v.Lane, 541 U.S. 509, 533–34 (2004)(Title II congruent/proportional inaccess-to-courts context). The Courtneed not resolve Eleventh Amendmentnuances at the pleading stage. It isenough that the claims are properlydirected to the correct defendants withcognizable theories.(Resp. at 9.) To the extent the Court can understand whatPlaintiff is attempting to argue or the related caselaw citations,this paragraph is neither accurate—Plaintiff's claims are not“properly directed to the correct defendants with cognizabletheories”—nor in response or related to Defendants’ Motion—the Court has not been called on to “resolve EleventhAmendment nuances.”And other arguments in the Response are simply untrue as amatter of fact. Related to his contention that he did not engagein group pleading in the FAC, Plaintiff states the “FAC isorganized by claim and defendants [and] contains pinpointcitations to the factual paragraphs.” (Resp. at 8.) None of theclaims is organized to identify the specific Defendant againstwhom it is brought or contains pinpoint citations to the factualparagraphs. (See FAC ¶¶ 307–418.) Plaintiff's statement issimply false.Both the FAC and Plaintiff's Response contain unusuallanguage formulations. While not an issue on its own, it is oneof the many indicators, together with all the issues identifiedabove, that Plaintiff used generative artificial intelligence(AI) to write the Response; the problem is that he appears tohave done so without appropriate, sufficient attorney review.Federal Rule of Civil Procedure 11(b) provides that, inpresenting to the Court a pleading or motion with hissignature, an attorney certifies that legal contentions aresupported by existing law (or an extension thereof) andfactual contentions have evidentiary support (or will likelyhave such support after further investigation). And Rule 11(c)allows the Court to order an attorney to show cause why
Robert Cole Stemkowski Goldman, Plaintiff, v. Arizona Board of..., Slip Copy (2025) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8certain conduct has not violated Rule 11(b). With the adventof generative AI, courts around the country have dealt withlawyers who have presented briefs citing caselaw that doesnot exist, and those courts have often sanctioned the lawyersunder Rule 11. E.g. Mata v. Avianca, Inc., 678 F. Supp. 3d 443,460–66 (S.D.N.Y. 2023) (“An attempt to persuade a court oroppose an adversary by relying on fake opinions is an abuseof the adversary system.”); see also Park v. Kim, 91 F.4th 610,615 (2d Cir. 2024) (stating that a rule proscribing the use ofAI in court filings should not be necessary, because attorneysare already under the obligation to ensure that submissions tothe Court are accurate).*10 Here, the Court will require counsel for Plaintiff toprovide an explanation for the issues with the Response hefiled, which Defendants identified (Reply at 2–5) and theCourt summarizes above. If counsel has or can locate the casehe cited (as noted above) that the Court cannot locate, he shallprovide a copy of the case decision to the Court. Along withan explanation, counsel for Plaintiff shall show cause why heshould not be sanctioned under Rule 11.IT IS THEREFORE ORDERED granting in part anddenying in part Defendants’ Motion to Dismiss (Doc. 34).All claims against Defendants ADOA, Hyochol Brian Ahnand Jane Doe Ahn, Gail D. Burd and John Doe Burd, Dr.Betty Parisek and John Doe Parisek, Chrissy Lieberman andJohn Doe Lieberman, Dr. Ronald W. Marx and Jane DoeMarx, Peggy Ann Jenkins and John Doe Jenkins, John Arnoldand Jane Doe Arnold, Traci Vezzosi and John Doe Vezzosi,Theresa Ruzovich and John Doe Ruzovich, and Dr. MichaelDake and Jane Doe Dake, and claims 5 through 15 againstDefendant ABOR, are dismissed without leave to amend.Claims 1 through 4 against Defendant ABOR remain pending.IT IS FURTHER ORDERED that Defendant ABOR shallanswer the remaining four claims against it in the FirstAmended Complaint (Doc. 28) within the time set forth in theFederal Rules of Civil Procedure. The Court will set a Rule16 Scheduling Conference by separate Order.IT IS FURTHER ORDERED that, within 14 days of thedate of this Order, counsel for Plaintiff shall provide anexplanation for the issues with the Response he filed (Doc.43), which Defendants identified (Doc. 46 at 2–5) and theCourt summarizes in this Order, and any copy he can locateof the apparently hallucinatory case he cited. Along with anexplanation, counsel for Plaintiff shall show cause why heshould not be sanctioned under Rule 11.Dated this 28th day of October, 2025.Honorable John J. TuchiUnited States District JudgeAll CitationsSlip Copy, 2025 WL 3018812Footnotes1Plaintiff also named these individual Defendants’ spouses as Defendants to reach their marital property.2There are 10 Individual Defendants and Plaintiff raises six § 1983 claims, apparently against them all. But theFAC fails to connect the Individual Defendants’ actions with any of the claims. As but six of the 60 examples,Plaintiff only alleges that Dr. Michael Dake, the Senior Vice President for Health Sciences, was apparently“uninformed” of the alleged civil rights violations against Plaintiff, implying that Dr. Dake should have beeninvolved. (FAC ¶¶ 288, 290.) Those facts do not give rise to any of Plaintiff's six § 1983 claims against Dr.Dake, and indeed Plaintiff provides neither argument and legal authority to the contrary in his Response noridentifies facts he could allege plausibly giving rise to claims against Dr. Dake.3The Court addresses Plaintiff's briefing issues more fully, infra.End of Document© 2025 Thomson Reuters. No claim to original U.S. Government Works.
ProvenanceKnow exactly where this document came from.Members see the sourcing behind every authority on DocPost — so you can check the record yourself and cite with confidence.Request access