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Case 2:12-cv-02808-STA-cgc Document 26 Filed 09/20/13 Page 1 of 10 PageID 121

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

No. 12-2808-STA-cgc























v.


BERNARD SHERROD,

Plaintiff,

)
)
)
)
)
)
)
UNIVERSITY OF TENNESSEE HEALTH
SCIENCE CENTER, COLLEGE OF
)

MEDICINE AND COLLEGE OF PHARMACY, )
and THE UNIVERSITY OF TENNESSEE
)
)

SYSTEM,
)




)




Defendants.
























ORDER GRANTING MOTION TO DISMISS



Before the Court is Defendants University of Tennessee Health Science Center, College

of Medicine and College of Pharmacy, and the University of Tennessee System’s (“Defendants”)

Motion to Dismiss (D.E. # 7) filed November 26, 2012. Plaintiff Bernard Sherrod (“Sherrod”)

filed a Response (D.E. # 14) on January 16, 2013. Defendants filed a Reply (D.E. # 15) on

January 30, 2013. For the reasons given herein, the Court GRANTS the Defendants’ Motion to

Dismiss.

BACKGROUND



For purposes of ruling on a motion to dismiss under Rule 12(b)(6), the Court assumes

that all factual allegations in the Complaint are true, and draws all reasonable conclusions in

favor of the Plaintiff.



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Sherrod attended the University of Tennessee Health Science Center (“UTHSC”) from

Fall of 2010 through Spring of 2011. (Compl. ¶ 1, D.E. # 1). Sherrod declined two offers from

other medical schools to pursue his education at UTHSC. (Id.)



On September 17, 2010, Patrick Lising (“Lising”), another student at UTHSC and

Sherrod were involved in an altercation at the Phi Chi fraternity house. (Id. ¶ 3,4 ). As a result of

this altercation, Sherrod received injuries including head trauma, a nose bleed, and minor

lacerations. (Id. ¶ 3). The Vice-president of Phi Chi, Andrew Han (“Han”) advised Sherrod that

Sherrod might be expelled, regardless of fault, over this altercation. (Id. ¶ 4). Sherrod did not

press charges against Lising for fear of expulsion from UTHSC. (Id. ¶ 3)



On September 20, 2010, Sherrod met with Charles Gutelius (“Gutelius”), the detective

investigating the altercation at the Phi Chi house.1 (Id. ¶ 6). Gutelius informed Sherrod that

UTHSC generally expels both parties in any altercation on campus. (Id.)



On October 3, 2010, Gutelius gave Sherrod the option of pressing charges against Lising

outside of campus. (Id. ¶ 7). However, Sherrod declined to press charges and signed a statement

that he would not press charges against Lising in the future. (Id. ¶ 7).



UTHSC required Sherrod to meet with two internal departments, the Equity and

Diversity Department and the Student Affairs Department, in order to mediate any issues

between Sherrod and Lising. (Id. ¶ 8). UTHSC gave Sherrod a choice to meet with either Dr.

Mattingly (“Mattingly”) or Dr. Bob Kores (“Kores”) on a monthly basis. (Id.) After Sherrod

chose to meet with Kores, Dr. Owen Phillips (“Phillips”) denied Sherrod’s request and directed



1 Sherrod states Gutelius was “an employee and representative of the Defendants.”

Construing Sherrod’s Complaint in his favor, the Court assumes Gutelius was an employee of
the University of Tennessee Health Science Center Campus Police.



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Sherrod to see Mattingly. (Id.) Mattingly met with Sherrod once. (Id.) After this meeting he

gave Sherrod his phone number, and said that Sherrod did not need counseling. (Id.)



On November 4, 2010, Sherrod met with Dean Robert G. Shreve (“Shreve”) at UTHSC’s

University Medical Education Department. (Id. ¶ 9). Shreve represents the Progress and

Promotions Committee of UTHSC, and met with Sherrod to discuss Sherrod’s failing grade in

Anatomy. (Id.) Sherrod told Shreve that Sherrod’s brother struggled in a medical program at

another school, and that Sherrod’s brother lived with a learning disability. (Id.) Shreve

suggested Sherrod withdraw from UTHSC. (Id.) Sherrod, after consultation with peers,

suggested that he engage in “summer remediation.” (Id.) When Sherrod visited UTHSC’s

Student Academic Support Services Department for further academic assistance and evaluation,

they did not provide him with what Sherrod considered adequate counseling in addressing his

issues. (Id. ¶ 10)



Sherrod e-mailed Shreve on February 16, 2011 and April 8, 2011 in order to coordinate

summer remediation of Sherrod’s performance in Gross Anatomy. (Id. ¶ 11). Sherrod also

spoke with Shreve about summer school during an encounter on campus. (Id. ¶ 12).



On April 11, 2011, UTHSC’s Medical Education Committee recommended that Sherrod

undergo grief counseling to help with his dismissal from the school. (Id. ¶ 13). On May 5, 2011,

Shreve notified Sherrod that the UTHSC Programs and Promotions Committee had upheld

Shreve’s recommendation of dismissal. (Id. ¶ 14). After Dr. David M. Stern (“Stern”), the Dean

of the College of Medicine, heard and rejected Sherrod’s final appeal of dismissal, UTHSC

formally dismissed him on May 24, 2011. (Id. ¶ 15).



Sherrod filed a Complaint with the United States Department of Education Office of

Civil Rights (“OCR”) in May 2012. (Id. ¶ 18). Sherrod first sued UTHSC in this Court on June



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7, 2012. (Compl., D.E. # 1, No. 12-cv-2438-STA-tmp). The Court dismissed this case for

failure to pay the filing fee. (Order of Dismissal, D.E. # 4, No. 12-cv-2438-STA-tmp). Sherrod

then sued UTHSC in this Court again on September 18, 2012, alleging a cause of action for

“Discrimination.” (Id. ¶¶ 19-25). Looking to other portions of his Complaint, Sherrod asserts

claims for violations of the Americans With Disabilities Act, 42 U.S.C. § 2000d et seq. (“the

ADA”); the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (“the Rehabilitation Act”); Title

IV of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.(“Title VI”); 34 C.F.R. § 100 et

seq.; and Articles One and Eleven of the Tennessee State Constitution.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a

claim “for failure to state a claim upon which relief can be granted.”2 When considering a Rule

12(b)(6) motion, the Court must treat all of the well-pleaded allegations of the complaint as true

and construe all of the allegations in the light most favorable to the non-moving party.3

However, the Court will not accept legal conclusions or unwarranted factual inferences as true.4

“To avoid dismissal under Rule 12(b)(6), a complaint must contain either direct or inferential

allegations with respect to all material elements of the claim.”5 Ordinarily, a reviewing court

may not consider matters outside the pleadings on a motion to dismiss under Rule 12(b)(6).6



2 Fed. R. Civ. P. 12(b)(6).
3 Saylor, 975 F.2d at 254.
4 Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987).
5 Wittsock v. Mark A. Van Sile, Inc., 330 F.3d 899, 902 (6th Cir. 2003).
6 Rondingo, LLC v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011).



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However, “a copy of a written instrument that is an exhibit to a pleading is a part of the pleading

for all purposes.”7



Under Federal Rule of Civil Procedure Rule 8(a)(2), a complaint need only contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.”8 Although

this standard does not require “detailed factual allegations,” it does require more than “labels and

conclusions” or “a formulaic recitation of the elements of a cause of action.”9 In order to survive

a motion to dismiss, the plaintiff must allege facts, if accepted as true, sufficient “to raise a right

to relief above the speculative level” and to “state a claim to relief that is plausible on its face.”10

“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.”11

ANALYSIS



Broadly, Sherrod complains of actions made illegal under both federal and state law. The

Court will address the state law contentions, then turn to the allegations of violations of federal

law.

State Law



Sherrod’s Complaint states UTHSC violated rights guaranteed him by the Tennessee

State Constitution. The University of Tennessee, of which UTHSC is a component part, is


7 Fed. R. Civ. P. 10(c).
8 Fed. R. Civ. P. 8(a)(2).
9 Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). See also Reilly v. Vadlamudi, 680 F.3d 617, 622 (6th Cir. 2012) (quoting Twombly,
550 U.S. at 555).

10 Twombly, 550 U.S. at 570.
11 Iqbal, 556 U.S. at 678.



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entitled to the same protection of sovereign immunity that the State itself enjoys.12 “[A]n un-

consenting State is immune from suits brought in federal courts by her own citizens as well as by

citizens of another state.”13 “It is clear, of course, that in the absence of consent a suit in which

the State or one of its agencies or departments is named as the defendant is proscribed by

[sovereign immunity.]”14 “This jurisdictional bar applies regardless of the nature of the relief

sought.”15 It extends to “all suits, whether for injunctive, declaratory or monetary relief, against

the state and its departments, by citizens of another state, foreigners or its own citizens.”16 To

consent to suit, a state must expressly waive sovereign immunity, or such waiver must be so

overwhelmingly implied in statutory text that it leaves no room for any other reasonable

construction.17



Sherrod brings nothing to the Court’s attention to show Tennessee waives sovereign

immunity with respect to his claims under the Tennessee Constitution. To the contrary,

Tennessee law provides:



12 Univ. of Tenn. v. People’s Bank, 157 Tenn. 87 (1928); see also Applewhite v. Memphis
State Univ., 495 S.W.2d 190, 196 (Tenn. 1973) (noting Memphis State University was entitled to
sovereign immunity.)

13 Emps. of Dep’t of Public Health & Welf., Mo. v. Dep’t of Public Health & Welf., Mo.,

411 U.S. 279, 280 (1973).

14 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citing Flor.

Dep’t of Health v. Flor. Nursing Home Ass’n, 450 U.S. 147, 101 (1981) (per curiam); Alabama
v. Pugh, 438 U.S. 781 (1978) (per curiam)).

15 Idem. (citing Mo. v. Fiske, 290 U.S. 18, 27 (1933)).
16 Thiokol Corp v. Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir. 1993) (internal citations

omitted).

17 Edelman v. Jordan, 415 U.S. 651, 673 (1974) (citing Murray v. Wilson Distilling Co.,

213 U.S. 151 (1909)).



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(a)
No court in the state shall have any power, jurisdiction or authority to
entertain any suit against the state, or against any officer of the state acting by
authority of the state, with a view to reach the state, its treasury, funds or
property, and all such suits shall be dismissed as to the state or such officers, on
motion, plea or demurrer of the law officer of the state, or counsel employed for
the state.

No statutory or other provision authorizing the University of Tennessee
(b)
and its board of trustees to sue and be sued shall constitute a waiver of sovereign
immunity.18

While Sherrod does make some arguments respecting legislation enacted by the United States

Congress pursuant to Section 5 of the Fourteenth Amendment, Sherrod’s claims under the

Tennessee Constitution do not arise under legislation enacted pursuant to Section 5. Therefore,

to the extent Sherrod pleads causes of action under the Tennessee Constitution, the Court

GRANTS UTHSC’s Motion to Dismiss.19

Federal Claims



Sherrod also appears to plead claims under violations of the ADA, Title IV, and the

Rehabilitation Act. Neither the ADA, nor Title VI, nor the Rehabilitation Act contains a statute

of limitations.

Where a federal statute provides a cause of action but does not specify a
limitations period, courts determine the appropriate statute of limitations in one of
two ways. First, if the federal cause of action arises under an Act of Congress
enacted after December 1, 1990, it is governed by 28 U.S.C. § 1658, which
prescribes a four-year statute of limitations period. Alternatively, courts borrow



18 Tenn. Code Ann. § 20-13-102.
19 The parties devote some briefing to state law causes of action under negligence and

breach of contract. However, the Court is unable to discern where Sherrod stated such causes of
action in his Complaint. To the extent that Sherrod did assert such causes of action, the Court
GRANTS UTHSC’s Motion to Dismiss. Sherrod also argues that sovereign immunity does not
apply to suits for prospective relief against individuals. Sherrod has not sued any individuals, so
this argument is irrelevant.



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the most analogous state limitations period, so long as the application of state law
is not at odds with the purpose or operation of federal substantive law.20



Each of the federal causes of action asserted arise under Acts of Congress enacted prior

to December 1, 1990. Therefore, the Court looks to the laws of the State of Tennessee to

determine the proper statute of limitations. Under Tennessee law, “[c]ivil actions for

compensatory or punitive damages, or both, brought under the federal civil rights statutes” are

subject to a one-year statute of limitations.21



UTHSC dismissed Sherrod on May 24, 2011. Sherrod did not file his first lawsuit in this

Court until June 7, 2012. The statute of limitations begins to run against a plaintiff as soon as the

plaintiff discovers an injury, or in the exercise of due care and diligence should discover the

injury.22 Sherrod, in his Complaint, alleges that Tennessee’s discovery rule should act to extend

the applicable statute of limitations. The basis for this argument is Sherrod did not receive

certain documents until August 6th, 2012 and, from those documents “discovered a variety of

previously unknown violations and missing documents[.]”23 However, Sherrod fails to explain

what “unknown violations” he discovered, and how this information alters that he undoubtedly

knew of his injury no later than May 24, 2011.



Sherrod also argues that the filing of a Complaint with OCR should act to toll the statute

of limitations on his federal claims. When applying a state statute of limitations, federal courts

also apply relevant state tolling provisions unless they are inconsistent with the federal policy



20 McCormick v. Miami Univ., 693 F.3d 654, 662 (6th Cir. 2012).
21 Tenn. Code Ann. § 28-3-104.
22 Bishop v. Children’s Center for Developmental Enrichment, 618 F.3d 533, 536 (6th

Cir. 2010).

23 Compl. ¶ 17.



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underlying the cause of action.24 The Supreme Court has held that applying state tolling is

consistent with the goals of federal civil rights legislation.25



Examining whether Tennessee would toll their statute of limitations during the pendency

of an administrative action, the Court determines Tennessee would not. Tennessee applies a

similar one-year statute of limitations to actions under the Tennessee Human Rights Act, 4-21-

101 et seq. (“the THRA”).26 The THRA also creates the Tennessee Human Rights Commission

(the “HRC”) through which persons with a cause of action under the THRA may pursue

claims.27 However, Tennessee does not toll its one-year statute of limitations on civil actions

under the THRA while a plaintiff pursues remedies through the HRC. 28 This being the case, the

Court holds that Tennessee would not toll its statute of limitations on federal civil rights actions

during the pendency of an administrative investigation. Because Sherrod did not commence his

lawsuit until more than one year after his cause of action accrued, the Tennessee statute of

limitations serves to bar his causes of action under the Rehabilitation Act, the ADA, and Title

VI, and the Court GRANTS UTHSC’s Motion to Dismiss.29



24 Bishop, 617 F.3d at 537.
25 Hardin v. Straub, 490 U.S. 536, 543 (1989).
26 Tenn. Code Ann. § 4-21-311(d).
27 Tenn. Code Ann. §§ 4-21-201; 4-21-302.
28 See generally Bennett v. Steiner-Liff Iron & Metal Co., 826 S.W.2d 119 (Tenn. 1992).
29 The parties devote some briefing to the Family Educational Rights and Privacy Act of

1974 (“FERPA”). Again, the Court is unable to discern where Sherrod alleges a violation of
FERPA in his Complaint. This appears to be a misconstrual by UTHSC of Sherrod’s alleging a
cause of action under 34 C.F.R pt. 100 (dealing with OCR and its handling of Title VI claims) as
alleging a cause of action under 34 C.F.R. § 100. However, the Court notes that FERPA does not
give an aggrieved individual a private right of action. Gonzaga Univ. v. Doe, 536 U.S. 273, 287
(2002). Therefore, to the extent which Sherrod pleads a cause of action under FERPA, the Court
GRANTS UTHSC’s Motion to Dismiss such cause of action.



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CONCLUSION



Because UTHSC is entitled to the same protections of sovereign immunity enjoyed by

the State of Tennessee, and because the State of Tennessee does not allow suits against itself for

violations of state law in federal court, the Court GRANTS UTHSC’s Motion to Dismiss with

respect to Sherrod’s claims under Tennessee state law. Because Sherrod did not commence his

lawsuit until more than one year after discovery of his injury, the Tennessee statute of limitations

bars his claims under the ADA, Title VI, and the Rehabilitation Act, the Court GRANTS

UTHSC’s Motion to Dismiss with respect to these claims. Because FERPA does not imply a

private right of action to enforce its provisions, the Court GRANTS UTHSC’s Motion to

Dismiss with respect to any claim under FERPA.

IT IS SO ORDERED.




s/ S. Thomas Anderson






Date: September 20, 2013.































S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE





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