Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 1 of 25 PageID 105

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1 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 1 of 25 PageID 105 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION MELISSA MILWARD; ELYSE UGALDE; and ASHLEY ROSE, Plaintiffs, v. Case No.: 6:15-cv GAP-TBS THE DISTRICT BOARD OF TRUSTEES OF VALENCIA COLLEGE, FLORIDA; BARBARA BALL; LINDA SHAHEEN; MAUREEN BUGNACKI; and SUDA AMODT, Defendants. / DEFENDANTS MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT, AND ALTERNATIVE MOTION FOR SUMMARY FINAL JUDGMENT The District Board of Trustees of Valencia College, Florida, ( Valencia College ), Barbara Ball, Linda Shaheen, Maureen Bugnacki and Suda Amodt, pursuant to Fed. R. Civ. P. 12(b)(6) and 56, respectfully request this Honorable Court to render an Order (i) dismissing Valencia College from this action pursuant to the Eleventh Amendment to the United States Constitution, (ii) dismissing Counts I, II, and III asserted against Defendants Ball, Shaheen, Bugnacki and Amodt for failure to state viable causes of action, (iii) dismissing Count IV against Valencia College for failure to a state a viable cause of action, (iv) granting summary final judgment in favor of all Defendants on all claims alleged by Plaintiffs Rose and Ugalde pursuant to their executed Hands On Scanning Release forms, and (v) reserving jurisdiction to determine Defendants entitlement to an award of attorneys fees and costs upon proper motion, and in support state: Page 1 of 25

2 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 2 of 25 PageID 106 I. SUMMARY OF ARGUMENT Plaintiffs voluntarily withdrew from a limited-access and rigorous medical sonography program of study, and now seek an award of money damages by artificially sensationalizing and inappropriately sexualizing their voluntary participation in clinical exercises intended to increase their competency in performing transvaginal ultrasounds, which are among the most difficult scans for sonography students to learn and master. Each Plaintiff made an informed decision whether or not to participate in the voluntary practice scanning in a clinical laboratory setting. Prior to starting their course of study, Plaintiffs Ugalde and Rose released and waived any and all claims based on their participation in the laboratory practice scanning, and Plaintiff Milward may have done so as well. Following orientation, Plaintiffs Milward and Ugalde willingly performed scans on other participating students in their class, the very practice of which they now complain. Consistent with the options communicated to her by faculty, Plaintiff Rose exercised her discretionary right not to participate in the optional practice scanning, while continuing in the program. Throughout their series of complaints, Plaintiffs have failed to sufficiently identify any actual harm they suffered, such as a specific course grade reduction or a lost job opportunity, which simply could not have occurred as they withdrew before completing the program. Valencia College, an arm of the State of Florida, has Eleventh Amendment immunity against Plaintiffs alleged claims. Additionally, Plaintiffs alleged Section 1983 claims against the Defendants should be dismissed because Plaintiffs informed and voluntary decisions to participate, or not, as a student models for clinical scanning in no way violated their rights under the First or Fourth Amendments to the United States Constitution. Page 2 of 25

3 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 3 of 25 PageID 107 There being no viable underlying constitutional violations, Plaintiffs have not and cannot state an actionable claim for civil conspiracy between the individual Defendants. Plaintiffs alleged claims against the individual Defendants are also barred by the doctrine of qualified immunity as the individual Defendants did not violate Plaintiffs clearly established constitutional rights by merely allowing Plaintiffs voluntary participation in transvaginal scanning, and observing and critiquing students performing such scans in Valencia College s clinical laboratory setting. To be clear, the Program s faculty did not perform transvaginal scans on Plaintiffs, whereas Plaintiffs Milward and Ugalde actually did perform scans on their willing classmates. Defendants are also entitled to summary final judgment on the claims alleged by Plaintiffs Ugalde and Rose pursuant to their duly executed Hands-On Scanning Release forms, under which they expressly waiv[ed] and releas[ed] Valencia College, its officers, agents, employees, and students from any claim for damages alleged to result from injuries arising from or related to [their] participation as a model for the Diagnostic Medical Sonography Program. II. BACKGROUND A. Valencia College 1. The District Board of Trustees of Valencia College, Florida, is a statutorilycreated board of trustees which governs Valencia College and is expressly constituted as a political subdivision of the State of Florida At all material times, Ms. Ball served as the Program Chair of Valencia College s Sonography Program; Ms. Shaheen served as its Clinical and Laboratory 1 See (4), , (3)(bb) and , Fla. Stat. See also, Sec. Am. Compl. at 3, 11 (acknowledging that Valencia College s board is a political subdivision of the State of Florida[.] ). Page 3 of 25

4 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 4 of 25 PageID 108 Coordinator; Ms. Bugnacki served as a laboratory technician in the program; and Ms. Amodt served as a laboratory and physics instructor in the program, as well as a medical sonographer at Dr. Phillips Hospital In 2013, Plaintiffs were admitted into Valencia College s Medical Diagnostic Sonography Program (hereinafter Valencia Sonography Program ), which is highly competitive and admits only twelve (12) students per year For the 2013/2014 academic year, Valencia College s catalogue described the Valencia Sonography Program as follows: This program is designed to prepare the student for employment as a diagnostic medical sonographer. The sonographer should be skilled by academic and clinical training to perform ultrasound examinations under the supervision of a qualified physician. Diagnostic Medical Sonography is a dynamic medical imaging profession. It is presently being used to evaluate many soft tissue organs in the body. Some of these organs are the liver, gallbladder, kidneys, and pancreas. One of the most fascinating uses of diagnostic ultrasound is the examination and evaluation of the unborn child. With the most recent technical advances in ultrasound, the sonographer is now able to evaluate flow dynamics of many blood vessels of the fetus, pediatric and adult patient. Properly-trained sonographers are in demand in hospitals, clinics, doctors offices, marketing, applications, and mobile services. The program is accredited by the Commission on Accreditation of Allied Health Education Programs. Graduates are eligible to take the national certifying examinations administered by the American Registry of Diagnostic Medical Sonographers. Diagnostic Medical Sonography is a limited-access program[.] 2 Sec. Am. Compl. at 3-4, Id. at 6, 23. Page 4 of 25

5 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 5 of 25 PageID 109 Students are strongly encouraged to consult a Health Sciences Advisor for assistance in determining the best education plan for their career goals[.] Program Outcomes Perform entry level skills competently as described by the scope of practice for Diagnostic Medical Sonography. Perform effective communication skills within the healthcare environment. Provide a safe environment in the healthcare setting. Practice professional behaviors in a healthcare setting. Execute safe clinical decision making in medical imaging. 4 B. Plaintiffs Enrollment and Mandatory Orientation Session 5. Prior to the mandatory orientation session for the Valencia Sonography Program, Ms. Shaheen provided them with a Sonography Questionnaire for their completion and return prior to the mandatory orientation session Each Questionnaire contained an item 15(b), which inquired of each student, How do you feel about allowing practice of transvaginal exams on you? Each Plaintiff completed the Sonography Questionnaire and returned it to Defendant 4 Plaintiffs pleading expressly references and cites to the webpage with the Valencia Sonography Program s course catalogue. See Sec. Am. Compl. at 6, n.6. 5 Plaintiffs Complaint alleges that [a]ll three Plaintiffs signed a form during orientation stating they were not comfortable with Valencia vaginally probing them. See Sec. Am. Compl. at 7, 26. While courts do not ordinarily consider anything beyond the face of the complaint and documents attached thereto when ruling on a motion to dismiss, the Eleventh Circuit recognizes an exception where a plaintiff refers to a document in its complaint, its contents are not in dispute, and the defendant attaches the document to its motion to dismiss. See Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007). It is understood that in paragraph 26 of their Second Amended Complaint, Plaintiffs are referencing the Sonography Questionnaires they submitted to Ms. Shaheen prior to the beginning of the mandatory orientation, which were further discussed during their orientation. True and correct copies of Plaintiffs completed Questionnaires are attached as Exhibits 1-A through 1-C, and true and correct copies of Ms. Shaheen s responses thereto are attached as Exhibits 1-D through 1-F. Page 5 of 25

6 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 6 of 25 PageID 110 Shaheen by . Plaintiffs individual responses to item 15(b) of the Sonography Questionnaire were as follows: Milward: (b) Not comfortable with it at the moment. Ugalde: (b) I am not comfortable with allowing transvaginal ultrasounds on myself. Rose: (b) I am not comfortable allowing the practice of transvaginal exams on me in front of my peers In response to Plaintiffs responses to item 15(b), Ms. Shaheen sent each Plaintiff an stating that: Since transvaginal is an invasive exam, we do give students an option; however, we strongly suggest that all students participate in transvaginal labs. Transvaginal is one of the most challenging ultrasounds and clinical sites are less likely to allow students to "practice" on patients if they have not participated in lab practice beforehand. As previously stated, the choice is yours; however, I do like to inform all students who do not agree to be a patient for their classmates that they will also not be allowed to participate or practice in transvaginal scanning in our lab. Basically, our reasoning is that if you are not willing to be a patient for your classmate, it is not a fair or equitable situation for your classmates to be a patient for you After Plaintiffs were accepted into the Valencia Sonography Program, they attended an orientation that further described the program and set Plaintiffs expectations about how the program operated[.] 8 9. During the mandatory orientation session, a second-year sonography student addressed the incoming class and explained the faculty s belief that female students should undergo invasive transvaginal ultrasound procedures in order to become better Sonography [technologists]. 9 6 See Exhibits 1-A, 1-B, and 1-C. 7 See Exhibits 1-D, 1-E, and 1-F, (emphases added). 8 See Sec. Am. Compl. at 6, See id. at 6, 25. Page 6 of 25

7 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 7 of 25 PageID On August 28, 2013, Plaintiffs Rose and Ugalde voluntarily executed the Program s Hands-On Scanning Release form, thereby waiv[ing] and releas[ing] Valencia College, its officers, agents, employees, and students from any claim for damages alleged to result from injuries arising from or related to [their] participation as a model for the Diagnostic Medical Sonography Program Plaintiffs Milward and Ugalde agreed to participate as student models for the Valencia Sonography program and performed transvaginal scans on other students as well. 11 Plaintiff Rose opted not to participate as a student model, and therefore was not permitted to practice transvaginal scanning on other students Plaintiffs generally allege that [t]hroughout Plaintiffs tenure in the program, Defendants threatened to reduce all Plaintiffs grades, 13 that Rose further asserts Amodt graded her more harshly than the program s other students, 14 and that Defendants retaliated against Plaintiffs by reducing Plaintiffs grades. 15 Plaintiffs do not, however, specifically identify any such reduced course grades. 13. All Plaintiffs eventually withdrew from the Valencia Sonography Program. 16 III. MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS A. LEGAL STANDARD Defendants respectfully incorporate the Rule 12(b)(6) standard of review set forth in Witchard v. Keith, No. 610-cv-474-Orl-31GJK, 2011 WL , at *2 (M.D. Fla. Jan. 26, 2011). 10 See Exhibits 1-G and 1-H. Defendants attach the release forms only in support of Defendants Alternative Motion for Summary Judgment, infra. Additionally, after a diligent search, Defendants have not yet been able to locate Plaintiff Milward s executed Hands-On Scanning Release. See Exhibit 1 at 2, See Sec. Am. Compl. at 9, See id. at 9, 32, and 11, See id. at 11, See id. at 12, See id. at 16, 65, (emphases added). 16 See id. at 12, 45. Page 7 of 25

8 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 8 of 25 PageID 112 B. APPLICATION Defendants respectfully submit that Plaintiffs Second Amended Complaint should be dismissed with prejudice for the following reasons: 1. Plaintiffs Claims Against Valencia College Should Be Dismissed In Their Entirety i. The Eleventh Amendment Bars Plaintiffs Alleged Claims Against Valencia College As an arm of the state of Florida, Valencia College is entitled to sovereign immunity under the Eleventh Amendment to the United States Constitution. The Eleventh Amendment precludes federal courts from entertaining suits against the states. U.S. Const. Amend. XI. Although the text of the Eleventh Amendment does not appear to bar federal suits against a state by its own citizens, long ago the United States Supreme Court held that the Eleventh Amendment does, in fact, bar such suits. See, e.g. Williams v. Dist. Bd. of Trs. of Edison Cmty. Coll., 421 F.3d 1190, 1192 (11th Cir. 2005) (citing Hans v. Louisiana, 134 U.S. 1 (1890) and Manders v. Lee, 338 F.3d 1304, 1308 n.8 (11th Cir. 2003)). Indeed, the law is wellsettled that the Eleventh Amendment immunity bars suits brought in federal court when an arm of the State is sued. Williams, 421 F.3d at 1192 (quoting Manders, 338 F.3d at 1308). This protection extends to entities acting as an arm of the state. Manders, 338 F.3d at To determine whether an entity is an arm of the state for Eleventh Amendment purposes, federal courts consider four factors: (1) how the state defines the entity; (2) what degree of control the state maintains over the entity; (3) where the entity derives its funds; and (4) who is responsible for any judgment against the entity. See Williams, 421 F.3d at 1192 (citing Manders, 338 F.3d at 1309). Though state law is considered, the question of whether an entity is an arm of the state is a Page 8 of 25

9 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 9 of 25 PageID 113 question of federal law. Id. In Williams, the Eleventh Circuit considered each of these four factors in turn, and determined that another state college in Florida is an arm of the state. In support, the Court reasoned that state colleges are creatures of the state under Florida law, the State maintains a great degree of control over its state colleges, the college s source of funds weighs in favor of the state because the state approves the college s budget, and the State is ultimately responsible for any liabilities incurred by the colleges. See id. While the State of Florida no longer uses the moniker community college for the members of the Florida College System, both the college at issue in Williams 17 and Valencia College are Florida College System institutions. See Fla. Stat (3)(f) and (3)(bb). Accordingly, Valencia College is entitled to Eleventh Amendment immunity unless that immunity has been waived by the State of Florida. See Shedrick v. Bd. of Trs. of Miami-Dade Coll., 941 F. Supp. 2d 1348, (S.D. Fla. 2013). Generally, waiver is found only when the state voluntarily invokes the jurisdiction of a federal court or the state makes a clear declaration that it intends to submit itself to federal jurisdiction. Id. (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, (1999)). Here, Plaintiffs point to no clear declaration of immunity waiver by the State of Florida, and in fact, the State of Florida has expressly retained its immunity from suit in federal court. See Fla. Stat (18). 18 As a result, Valencia College should be dismissed from this action pursuant to the Eleventh Amendment to the United States Constitution. 17 On July 1, 2014, Edison Community College was renamed Florida SouthWestern State College. See (last visited September 9, 2015). 18 Fla. Stat (18) provides that, No provision of this section... shall be construed to waive the immunity of the state or any of its agencies from suit in federal court, as such immunity is guaranteed by the Eleventh Amendment to the Constitution of the United States, unless such waiver is explicitly and definitely stated to be a waiver of the immunity of the state and its agencies from suit in federal court. ) Page 9 of 25

10 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 10 of 25 PageID 114 ii. Monell Does Not Support a Separate Cause of Action Against Valencia College If the Court does not dismiss Valencia College on the basis of sovereign immunity, the Court should dismiss the sole count against Valencia College, the Count IV Monell Claim, for failure to state a claim because the United States Supreme Court in Monell did not create a new cause of action, but merely set the parameters for when a municipality could be subject to liability under Section See, e.g., Segal v. City of New York, 459 F.3d 207 (2d Cir. 2006) ( Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization s failure to train, or the policies or customers that it has sanction, led to the constitutional violation ). Therefore, Plaintiffs alleged Monell claim in Count IV is duplicative of Counts I and II which represent the alleged underlying constitutional violations of the First and Fourth Amendments. See id. (upholding district court s decision to decline to address Monell because court found no underlying constitutional violation). Because Monell does not support a separate cause of action, and Count IV is merely duplicative, it should be dismissed with prejudice. iii. Valencia College is Not a Person Acting Under Color of State Law Because the College Maintains No Official Custom, Policy, or Usage Which Harmed Plaintiffs If, rather than dismissing Plaintiffs Count IV, the Court construes Plaintiffs Count IV as an extension of Plaintiffs Section 1983 claims under Count I and Count II, the claims against Valencia College still should be dismissed because Valencia College is not a person acting under color of state law. Section 1983 provides that every person who, under color of state law, custom, or usage, deprives any citizen of the United States or other person within the jurisdiction of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured Page 10 of 25

11 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 11 of 25 PageID 115 in an action at law. See 42 U.S.C In order to establish a violation of Section 1983, Plaintiffs must show that: (1) Defendants deprived them of a right secured by the Constitution and laws of the United States; and (2) that the Defendants acted under color of law. See Potter v. Pinellas Park Water Mgmt. Dist., No. 8:14-cv-02130, 2014 WL , at *3 (M.D. Fla. Nov. 3, 2014) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 151 (1970)). Even accepted as true, the allegations of Plaintiffs Second Amended Complaint fail to establish these two prima facie elements of a Section 1983 claim as to Valencia College. Assuming Plaintiffs could first successfully plead the existence of an underlying constitutional violation to support their Section 1983 claims 19, which Defendants deny, they still cannot state a claim for a violation of Section 1983 against Valencia College as they do not adequately plead that Valencia College qualifies as a person acting under color of state law. Section 1983 imposes liability on a government that, under color of some official policy, causes an employee to violate constitutional rights. See Monell v. Dep t of Soc. Servs. of City of New York, 436 U.S. 658, 692 (1977). However, that liability cannot be imposed vicariously on governing bodies solely on the basis of the existence of an employer-employee relationship with an alleged tortfeasor. See id. The inadequacy of employee training may serve as the basis for Section 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the employees come into contact. See Canton v. Harris, 489 U.S. 378, 388 (1989). Deliberate indifference in this context is a stringent standard of fault and requires proof that policymakers disregarded the known or obvious consequence that a particular omission in the training program would cause its 19 See Section B(2)(i), infra, for a discussion of Plaintiffs failure to state a claim for underlying constitutional violations under the First and Fourth Amendments. Page 11 of 25

12 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 12 of 25 PageID 116 employees to violate citizens constitutional rights. Bd. of Cty. Comm rs of Bryan Cty., Okla., v. Brown, 520 U.S. 397, 410 (1997). A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference. Id. at 409. Without notice that a course of training is deficient, decision makers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights. See Connick v. Thompson, 131 S. Ct. 1350, 1360 (2011). Here, Plaintiffs do not adequately plead and cannot show that Valencia College had an unconstitutional policy, let alone a demonstrated policy of deliberate indifference to Plaintiffs constitutional rights. Plaintiffs were informed of the voluntary nature of the practice following their admission to the Valencia Sonography Program when filling out their Sonography Questionnaires, if not before, and reminded again during mandatory new student orientation. Defendants advised their students, including Plaintiffs, of the voluntary nature of participating as a student model for transvaginal scanning and sought their informed consent prior to their participation. These facts do not support that Valencia College acted with deliberate indifference, and thus Plaintiffs have failed to state viable Section 1983 claims against Valencia College. 2. Plaintiffs Claims Against The Individual Defendants Should Be Dismissed In Their Entirety Plaintiffs have not and cannot state a viable claim under Section 1983 where their voluntary participation in, or abstention from, the practice of transvaginal scanning did not deprive them of a constitutional right. Without an underlying constitutional violation, Plaintiffs claims for civil conspiracy must fail as well. Even if Plaintiffs could show deprivation of a constitutional right, which Defendants deny, Plaintiffs will not be able to show actual harm where they voluntarily withdrew from Page 12 of 25

13 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 13 of 25 PageID 117 the Program before any of Defendants alleged threats against Plaintiffs were realized. Finally, Plaintiffs claims against the individual Defendants are barred by the doctrine of qualified immunity where the individual Defendants acted reasonably and in good faith in their administration of a rigorous academic program. i. Plaintiffs Cannot Show a Deprivation of Constitutional Rights Where Defendants Took No Action Against Plaintiffs for Allegedly Voicing Their Opposition to Serving As Student Models for Transvaginal Scanning, and Plaintiffs Participation as Models was Knowing and Voluntary Plaintiffs Second Amended Complaint fails to adequately plead that the individual Defendants violated Plaintiffs constitutional rights under either the First or Fourth Amendments, as applied to the states by the Fourteenth Amendment. Under the federal pleading standards, a pleading that merely offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. See Ashcroft v. Iqbal, 556 U.S. 662, (2009). Plaintiffs do not plead, and cannot show, that the practice of students engaging in voluntary transvaginal scanning was unconstitutional under either the First or Fourth Amendments. First, Plaintiffs fail to adequately allege a First Amendment violation in Count I of their Second Amended Complaint. 20 To establish that the individual Defendants violated Plaintiffs constitutional rights under the First Amendment, Plaintiffs must show that: (1) Plaintiffs engaged in speech protected by the First Amendment; (2) the individual Defendants took action against the Plaintiffs; and (3) Plaintiffs protected speech was a substantial or motivating factor in the individual Defendants actions. See, e.g., Arrington v. Dickerson, 915 F.Supp. 1516, 1525 (M.D. Ala. 1996). Count I of the Second Amended Complaint does not sufficiently allege any of the 20 See Sec. Am. Compl. at 15, Page 13 of 25

14 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 14 of 25 PageID 118 elements of a First Amendment violation, but instead merely posits the legal conclusion that a violation of the First Amendment occurred. 21 For example, Plaintiffs do not allege what actions they took to peacefully protest[] Valencia College s policy and whether those actions amount to protected speech, 22 what specific action the individual Defendants actually took against the Plaintiffs in response to Plaintiffs speech, 23 or that Plaintiffs speech was a substantial or motivating factor in the individual Defendants actions. While Plaintiffs are not required to put forth overly-detailed factual allegations to satisfy the federal pleading standard, they must do more than provide an unadorned, the-defendantunlawfully-harmed-me accusation. See Iqbal, 556 U.S. at For this reason, Plaintiffs have failed to adequately plead a violation of the First Amendment underlying their Section 1983 claim in Count I. Second, the face of Plaintiffs Second Amended Complaint makes clear that Plaintiffs will not be able to establish a claim for violation of the First Amendment under these circumstances. Indeed, assuming without admitting that Plaintiffs engaged in protected speech by complaining to the individual Defendants about the voluntary practice of participating in transvaginal scanning, Plaintiffs cannot state a claim for a First Amendment violation where Plaintiffs admit on the face of their Second Amended Complaint that they voluntarily resigned from the Valencia Sonography Program. 24 Thus, Plaintiffs will not be able to show that the individual Defendants actually took any retaliatory actions against them such as dismissing them from the Program because Plaintiffs left the Program on their own accord before any of their alleged fears ever materialized. 21 See id. 22 See id. at 6, See id. at 11, See id. at 12, 45. Page 14 of 25

15 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 15 of 25 PageID 119 Furthermore, Plaintiffs Second Amended Complaint contains inconsistent and insufficient allegations as to whether Defendants actually lowered Plaintiffs grades in any specific course as a result of their alleged protected speech. 25 The conclusory and inconsistent nature of Plaintiffs allegations violate the federal notice pleading standard. See Great Lakes Higher Educ. Corp. v. Austin Bank of Chicago, 837 F. Supp. 892, 894 (N. D. Ill. 1993) (holding that a pleader may only assert contradictory statements of fact when the pleader is legitimately in doubt about the fact in question). At bottom, Plaintiffs First Amendment claim serves primarily as a mechanism for Plaintiffs to air their grievances about the Program generally, and is not predicated on a constitutional violation by the individual Defendants. Therefore, Count I should be dismissed. Third, Plaintiffs Milward and Ugalde do not state a viable claim against the individual Defendants for violation of the Fourth Amendment as they fail to properly plead the required elements of a Fourth Amendment violation. 26 The Fourth Amendment protects people from government intrusion where the individual harbors a reasonable expectation of privacy. See Terry v. Ohio, 392 U.S. 1, 8-9 (1968) (citing Katz v. U.S., 389 U.S. 347, 351 (1967)). The Constitution does not forbid all searches and seizures, just the unreasonable ones. See Terry, 392 U.S. at 9 (citing Elkins v. U.S., 364 U.S. 206, 222 (1960)). Count II of Plaintiffs Second Amended Complaint merely states the conclusion that Plaintiffs Milward and Ugalde were deprived of their Fourth Amendment rights without stating which specific individual Defendant allegedly conducted a search or seizure of their persons (as opposed to other student volunteers), when it occurred, what it entailed, and why it was 25 See id. at 11, 39, at 12, 43, and at 16, See id. at 15-16, Page 15 of 25

16 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 16 of 25 PageID 120 unreasonable. 27 Once again, Plaintiffs are required to plead more than unadorned accusations in order to state a viable claim under the Fourth Amendment, see Iqbal, 556 U.S. at , and therefore Count II should be dismissed for failure to meet federal pleading standards. Fourth, even if Plaintiffs Milward and Ugalde had properly alleged the elements of a Fourth Amendment violation, Plaintiffs will be unable to state a claim for violation of the Fourth Amendment where the individual Defendants conduct observing and critiquing a student performing scans on another student volunteer in a clinical setting simply does not rise to the level of a search or seizure for purposes of the Fourth Amendment. Contrary to Plaintiffs implications, the Fourth Amendment is not triggered simply because a person acts on behalf of the government it only applies to governmental conduct that can reasonably be characterized as a search or seizure. See U.S. v. Attson, 900 F.2d 1427, 1429 (9th Cir. 1990). The threshold inquiry of whether a search or a seizure has occurred is particularly appropriate where, as here, the challenged conduct falls outside the traditional arena of the Fourth Amendment; namely, law enforcement. See id. Outside the realm of law enforcement, the Supreme Court has extended the scope of the Fourth Amendment to government conduct that is motivated by some sort of investigatory or administrative purpose and to elicit a benefit for the government. See id. at While Plaintiffs Milward and Ugalde allege that the individual Defendants conspired together to commit illegal searches of Plaintiffs bodies, 28 they fail to identify the specific investigative or administrative purpose for which the searches were supposedly conducted, or what the corresponding benefit 27 See id. 28 See id. at 16, 63. Page 16 of 25

17 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 17 of 25 PageID 121 to the government would be for conducting such a search or seizure. 29 Further, it is undisputed that the individual Defendants never conducted the scans on Plaintiffs, but instead merely observed and critiqued other students performance of the scans on Plaintiffs. It is also undisputed that Plaintiffs Milward and Ugalde performed the transvaginal scans on other students. 30 Where the alleged government conduct is not motivated by any investigatory or administrative purpose which would elicit a benefit for the government, that conduct cannot be considered a search or seizure triggering the Fourth Amendment, thus warranting dismissal of Count II. Fifth, even if the individual Defendants actions could constitute an actionable search or seizure, which Defendants deny, Plaintiffs Milward and Ugalde also cannot state a claim for violation of the Fourth Amendment as they both consented to participating in the transvaginal scanning. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973) ( [O]ne of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent ). Plaintiffs Milward and Ugalde were informed by Defendants that their participation as student models for transvaginal scanning was voluntary, both prior to and during the Plaintiffs mandatory orientation session, and they consented to participate as both a student model and student scanner. Count II should be dismissed on this ground as well. ii. Plaintiffs Fail to Sufficiently Plead Civil Conspiracy Claim Plaintiffs cannot state a claim for civil conspiracy against the individual Defendants where Plaintiffs allege no facts showing that individual Defendants reached an understanding to violate Plaintiffs First Amendment or Fourth 29 See id. at 15-16, See id. at 9, 33. It is unclear, therefore, whether Plaintiffs Milward and Ugalde intend to implicate their classmates, or themselves, in an alleged Fourth Amendment violation, or just the instructors who were observing the scanning taking place and providing feedback. Page 17 of 25

18 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 18 of 25 PageID 122 Amendment rights. 31 Plaintiffs may state a Section 1983 claim for conspiracy to violate constitutional rights by showing a conspiracy existed that resulted in the actual denial of some underlying constitutional right. See Grider v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010). In attempting to establish such a conspiracy, Plaintiffs must show that the parties reached an understanding to deny the Plaintiffs their rights. See Grider, 618 F.3d at 1260 (citing Bendiburg v. Dempsey, 909 F.2d 463, 468 (11th Cir. 1990) and Bailey v. Bd. of Cty. Comm rs of Alachua Cty., 956 F.2d 1112,1122 (11th Cir. 1992)). Under Count III, Plaintiffs assert the legal conclusion that the individual Defendants conspired to conduct illegal searches of Plaintiffs bodies and conspired to retaliate against Plaintiffs for voicing their disapproval of the practice of serving as volunteer student models, but provide insufficient facts showing that the individual Defendants reached any kind of understanding or agreement to commit such violations. 32 In fact, Count III fails to allege that the individual Defendants ever spoke to one another about doing so. See Bailey, 956 F.2d at 1122 ( [T]he linchpin for conspiracy is agreement, which presupposes communication ). Thus, Count III fails to properly plead the very essence of a civil conspiracy. Further, Plaintiffs cannot establish a civil conspiracy where the individual Defendants reached no agreement or understanding to commit constitutional violations against Plaintiffs, as no such violations were committed. 33 In support of their legal conclusion that the individual Defendants engaged in a civil conspiracy, Plaintiffs claim that the individual Defendants retaliated against Plaintiffs by reducing unspecified grades, threatening to blacklist Plaintiffs from local medical 31 See id. at 16-17, See id. 33 For a discussion of the alleged underlying constitutional violations, see Section (B)(2)(i), supra. Page 18 of 25

19 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 19 of 25 PageID 123 establishments so Plaintiffs could not obtain employment, and barring them from participating in clinical practicums needed to become competent medical sonographers. 34 The individual Defendants are all instructors or administrators in a rigorous academic program, and in those roles regularly provide feedback and criticism of students performance during classes, labs and clinics. Thus, it is not improper for the individual Defendants to reduce Plaintiffs grades if their academic performance did not match that of their peers. Nor is it improper for the individual Defendants to communicate the reality to their students that the students performance in the program, a significant portion of which takes place in clinical sites at area hospitals and other health care providers, will affect their future professional reputations in the local health care community after graduation. Finally, Plaintiff Rose did not participate as a student model for transvaginal scanning, and therefore she was not permitted to practice her transvaginal scanning on her fellow students in the Program s instructional lab. 35 This was a result of her voluntary decision, as program policy only allowed those students who volunteered as models to in turn practice on other students. While Plaintiffs mischaracterize the individual Defendants lawful actions as conspiracy, it is clear that the individual Defendants acted properly within the bounds of instructors and administrators of a strenuous academic program aiming to prepare their students for jobs in a demanding medical field wherein an incompetently performed ultrasound scan can result in the non-detection of a patient s serious medical condition, or that of their unborn child. 36 The individual Defendants acts, therefore, were taken for the purposes of academic instruction and evaluation, and not for the purpose of violating 34 See Sec. Am. Compl. at 16-17, See id. at 9, 32, and 11, See Valencia Sonography Program course catalogue, specifically referenced in Plaintiffs Second Amended Complaint at 6 n.6. Page 19 of 25

20 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 20 of 25 PageID 124 the Plaintiffs constitutional rights. For this reason, Plaintiffs Count III should be dismissed. iii. Plaintiffs Voluntarily Resigned From the Program Before Defendants Allegedly Threatened Harm Actually Occurred Plaintiffs cannot show that they have suffered any actual harm because they voluntarily withdrew from the Program, and the individual Defendants alleged threats to blacklist them from local health care establishments never came to pass. Mere verbal threats, without subsequent harm, do not amount to a Section 1983 violation. 37 See Green v. Thoryk, 30 F. Supp. 2d 862, 864 (E.D. Penn. 1998) ( [V]erbal threats without subsequent harm or threat of harm do not ordinarily rise to the level of a section 1983 deprivation ); Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992) ( Generally, mere verbal threats made by a state-actor do not constitute a 1983 claim ). While Plaintiffs allege that they were threatened with blacklisting at local health care establishments, none of these alleged threats could be realized before Plaintiffs voluntarily resigned from the Program before completing the Program. Even assuming the individual Defendants had made threats against Plaintiffs, which Defendants deny, Plaintiffs will be unable to show any actual harm sufficient to support their alleged Section 1983 claims. iv. Individual Defendants Are Entitled to Qualified Immunity The individual Defendants Defendants Ball, Shaheen, Bugnacki, and Amodt are entitled to qualified immunity for all counts of Plaintiffs Second Amended Complaint because they acted reasonably and in good faith in instructing Valencia Sonography Program students on transvaginal scanning using volunteer student models. See Snider v. Jefferson State Cmty. Coll., 344 F. 3d 1325, 1327 (11th Cir. 37 Plaintiffs unsupported allegations as to their alleged grade reductions are addressed in Section (B)(2)(i), supra. Page 20 of 25

21 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 21 of 25 PageID ) ( The defense of qualified immunity may be raised and addressed on a motion to dismiss and will be granted if the complaint fails to allege the violation of a clearly established constitutional right. ). Qualified immunity protects state actors performing discretionary functions from liability if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. See id. (citing Hope v. Pelzer, 536 U.S. 730 (2002)); see also Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 823 (11th Cir. 1997) ( For the law to be clearly established to the point that qualified immunity does not apply, the law must have earlier been developed in such a concrete and factually defined context to make it obvious to all reasonable government actors, in the defendant s place, that what he is doing violates federal law ) (citations omitted). Unless the act is so obviously wrong in light of preexisting law that only a plainly incompetent actor or one who is knowingly violating the law would have committed the act, the actor is entitled to qualified immunity. See id. at To determine whether a plaintiff has met her burden, federal courts consider whether the alleged facts make out a violation of a constitutional right and whether the right at issue was clearly established at the time of the defendant s alleged misconduct. See Pearson v. Callahan, 555 U.S. 223, 232 (2009). A right may be clearly established for the purposes of qualified immunity in one of three ways: (1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle with the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law. Maddox v. Stephens, 727 F.3d 1109, 1121 (11th Cir. 2013) (quoting Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, (11th Cir. 2009)). Whether a federal right is Page 21 of 25

22 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 22 of 25 PageID 126 clearly established must be undertaken in light of the specific context of the case, not as a broad general proposition. See Loftus v. Clark-Moore, 690 F.3d 1200, 1204 (11th Cir. 2012). The relevant inquiry to determine whether a right is clearly established is whether it would be clear to a reasonable state official that her conduct was unlawful in the situation confronted. See id. (quoting Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002). Here, Plaintiffs fail to plead sufficient facts to show the individual Defendants violated their clearly established constitutional rights. Instead, Plaintiffs generally allege the individual Defendants maliciously, recklessly, and willfully violated Plaintiffs constitutional rights, without including adequate factual allegations to support their claims. 38 To the contrary, the individual Defendants acted reasonably and in good faith in light of preexisting law, in allowing a policy of classroom instruction using voluntary transvaginal scanning with student models. The individual Defendants emphasized in the students initial registration paperwork and in their mandatory orientation that participating as a student model for transvaginal scanning was voluntary and optional. Plaintiffs Milward and Ugalde chose to participate in the transvaginal scans both as student models and as student technologists practicing the scans on their willing classmates. Plaintiff Rose refused to participate in the scans while continuing in the program, which further demonstrates the voluntary nature of the policy. Significantly, on the face of the Second Amended Complaint, it is clear that none of the three Plaintiffs participated as a student model for transvaginal scans without their consent. As such, Plaintiffs cannot allege that it should have been clear to a 38 See Sec. Am. Compl. at 15, 54. Page 22 of 25

23 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 23 of 25 PageID 127 reasonable state official that their conduct was unlawful. For these reasons, the individual Defendants are entitled to qualified immunity on all of Plaintiffs claims. IV. MEMORANDUM OF LAW IN SUPPORT OF ALTERNATIVE MOTION FOR SUMMARY JUDGMENT A. LEGAL STANDARD Defendants respectfully incorporate the Rule 56 standard of review set forth in Koziara v. City of Casselberry, 239 F. Supp. 2d 1245, (M.D. Fla. 2002). See also Fed. R. Civ. P. 12(d) ( If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. ); Coral Ridge Props., Inc. v. Playa Del Mar Ass n, Inc., 505 So. 2d 414, 417 (Fla. 1987) ( When a suit is disposed of, as here, by summary judgment, there is no requirement that a responsive pleading be filed. ). B. APPLICATION 1. Defendants Are Entitled to Summary Judgment As Plaintiffs Rose and Ugalde Released All Claims Against Valencia College and Its Employees Defendants are entitled to summary judgment on all claims alleged by Plaintiffs Rose and Ugalde pursuant to their executed releases waiving all claims against Valencia College and its employees, arising out of Plaintiffs participation as models for Valencia s Sonography Program. 39 As part of their mandatory orientation session prior to beginning classes, Plaintiffs Rose and Ugalde each signed a Hands-On Scanning Release under which they agreed to allow themselves to be 39 See Exhibits 1-G and 1-H. Page 23 of 25

24 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 24 of 25 PageID 128 scanned as a model for the Valencia Sonography Program. 40 The Hands-On Scanning Releases also contained a waiver and release which precludes their recovery of damages in this lawsuit. 41 Directly above their signature lines, their Releases unequivocally provide that, I hereby waive and release Valencia College, its officers, agents, employees and students from any claim for damages alleged to result from injuries arising from or related to my participation as a model for the Diagnostic Medical Sonography Program. 42 This release language is enforceable because it clearly and unambiguously indicates the intent to release Valencia College, its officers, agents, and employees from claims arising from or related to my participation as a model for the Valencia Sonography Program. See, e.g., Krathen v. Sch. Bd. of Monroe Cnty., 972 So. 2d 887, 888 (Fla. 3d DCA 2007). Accordingly, summary final judgment should be rendered in favor of all Defendants on all claims alleged by Plaintiffs Rose and Ugalde pursuant to their respective Releases. VI. CONCLUSION WHEREFORE, Defendants respectfully request this Honorable Court to render an Order (i) dismissing Valencia College from this action pursuant to the Eleventh Amendment to the United States Constitution, (ii) dismissing Counts I, II, and III asserted against Defendants Ball, Shaheen, Bugnacki and Amodt for failure to state viable causes of action, (iii) dismissing Count IV against Valencia College for failure to a state a viable cause of action, (iv) granting summary final judgment in 40 See id. As previously noted, so far Defendants have been unable to locate Plaintiff Milward s signed Release form. The absence of a lost or destroyed document does not necessarily preclude proof of its contents, and such proof must be clear, strong and unequivocal. See Weinsier v. Soffer, 358 So. 2d 61, 63 (Fla. 3d DCA 1978). It is presently unknown whether Plaintiff Milward will, in good faith, deny that she signed the Hands-On Scanning Release. 41 See Exhibits 1-G and 1-H. 42 See id. Page 24 of 25

25 Case 6:15-cv GAP-TBS Document 29 Filed 09/10/15 Page 25 of 25 PageID 129 favor of all Defendants on all claims alleged by Plaintiffs Rose and Ugalde pursuant to their executed Releases, and (v) reserving jurisdiction to determine Defendants entitlement to an award of attorneys fees and costs upon proper motion. Respectfully submitted this 10th day of September, /s/ Richard E. Mitchell RICHARD E. MITCHELL, ESQ. Florida Bar No.: SARA N. HUFF, ESQ. Florida Bar No.: GRAYROBINSON, P.A. 301 East Pine Street, Suite 1400 Post Office Box 3068 ( ) Orlando, Florida (407) Telephone (407) Facsimile Lead Counsel for Defendants CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 10th day of September, 2015, I electronically filed this motion with the Clerk of the Court by using the CM/ECF system which will send a notice of electronic filing to all registered users. /s/ Richard E. Mitchell Richard E. Mitchell, Esq. Page 25 of 25

26 Case 6:15-cv GAP-TBS Document 29-1 Filed 09/10/15 Page 1 of 3 PageID 130 Exhibit "1"

27 Case 6:15-cv GAP-TBS Document 29-1 Filed 09/10/15 Page 2 of 3 PageID 131

28 Case 6:15-cv GAP-TBS Document 29-1 Filed 09/10/15 Page 3 of 3 PageID 132

29 Case 6:15-cv GAP-TBS Document 29-2 Filed 09/10/15 Page 1 of 4 PageID 133 Valencia College Diagnostic Medical Sonography Name of Student: Melissa Cowherd Date: 7/14/2013 Please answer the following questions honestly. You have already been accepted into the Sonography Class. The answers you give below will not change that, but your knowledge and understanding will help you to succeed and progress in this program. 1. What motivated you to pursue a career in Sonography (other than wanting to help people)? I have always wanted to be in the medical field, but after seeing the both the good side of the ultrasound and the bad side from personal experiences, I knew this is what I wanted to do. 2. Describe what you think are the duties of the sonographer and name various exams you know to be performed by a sonographer: Provide and internal, yet non-invasive exam on any number of parts of the body. Using advanced medical technology to take images of an area of the body and relay that information to the physician. 3. What exposure have you personally had to ultrasound? I have had abdominal/transvaginal ultrasounds when I was pregnant. I have also had had an amniocentesis performed in which they used an ultrasound probe to guide a needle into the amniotic fluid. 4. Are you aware of the physical demands required in this career (pushing stretchers and ultrasound equipment, application of pressure with hand-held ultrasound probe)? Yes Are there any limitations preventing you from performing these requirements? No 5. Is there anything at all in your foreseeable future that may prevent you from successfully completing the program? (This must be your top priority. You must be fully invested and have a personal support system to help with normal family/personal obligations. You will basically be putting life as you know it on hold for two years.) No. I will do whatever it takes. 6. Successful completion of this program requires total dedication. Do you foresee any problems in attending early morning meetings, evening meetings, evening clinical rotations, and possibly some weekend clinical rotations? No 7. It is difficult to work while in this program. If you must work, you must possess a very flexible schedule that can be altered with each term's varying schedules and requirements. In an effort Exhibit "1A"