Jensen v. Reeves , 3 F. App'x 905 ( 2001 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    FEB 9 2001
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    CARL JENSEN and JUDY JENSEN,
    for themselves individually, and on
    behalf of their children, C.J., AMJ and
    ABJ,
    Plaintiffs-Appellants,
    v.
    No. 99-4142
    (District of Utah)
    MUFFET REEVES, in her official and
    (D.C. No. 98-CV-208-B)
    individual capacity; ALPINE
    SCHOOL DISTRICT; TOM RABB, in
    his official and individual capacity;
    ROY PEHRSON, in his official and
    individual capacity; and KENT
    PIERCE, in his official capacity,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before MURPHY and ANDERSON, Circuit Judges, and KANE, ** District
    Judge.
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    **
    Honorable John L. Kane, Jr., District Judge, United States District Court
    for the District of Colorado, sitting by designation.
    After C.J. was suspended from Sharon Elementary School for engaging in
    several alleged incidents of misconduct, his parents, Carl and Judy Jensen, filed
    this civil rights action on their own behalf and on behalf of C.J. (collectively the
    “Plaintiffs”) against the following entity and four individuals: Alpine School
    District; Tom Rabb, Roy Pehrson, and Kent Pierce, employees of Alpine School
    District; and Muffet Reeves, the principal of Sharon Elementary School
    (collectively the “Defendants”). The Plaintiffs’ civil rights complaint alleged the
    following seven general causes of action: (1) they were denied procedural due
    process in violation of the United States and Utah Constitutions when C.J. was
    suspended from school; (2) the Defendants failed to comply with § 504 of the
    Rehabilitation Act in dealing with C.J.’s behavioral problems; (3) the Defendants’
    actions relating to the suspension of C.J. denied them equal protection under both
    the United States and Utah Constitutions; (4) the Jensens were denied their right
    as parents “to direct the care and upbringing of their children in fulfillment of
    their moral, God-given duty to do so” in violation of both the United States and
    Utah Constitutions; (5) the Defendants infringed C.J.’s interest in his reputation;
    (6) the Defendants violated their privacy rights under the United States
    Constitution, the Family Educational Rights and Privacy Act (“FERPA”), and the
    Utah Constitution; and (7) the Defendants violated their First Amendment right to
    petition the government for redress of grievances.
    -2-
    In response to the Defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss,
    the district court dismissed the Plaintiffs’ complaint in its entirety, resolving both
    the federal and state claims on the merits. On appeal, the Plaintiffs contend as
    follows: (1) the district court erred as a matter of law in ruling that their civil
    rights complaint failed to state a claim under the United States Constitution,
    Rehabilitation Act, and FERPA; (2) the district court abused its discretion in
    refusing to dismiss their state-law claims without prejudice after concluding the
    complaint failed to state a valid federal claim; and (3) even assuming the district
    court acted within its discretion in reaching the merits of their state-law claims, it
    erred in dismissing those claims on the ground that the Plaintiffs had not filed a
    timely notice of claim pursuant to 
    Utah Code Ann. §§ 63-30-11
     and 63-30-13.
    This court exercises jurisdiction pursuant to 
    28 U.S.C. § 1291
     and affirms the
    district court’s order of dismissal.
    The district court began its analysis of the Defendants’ motion to dismiss
    by correctly noting that it must assume the truth of all well-pleaded facts alleged
    in the Plaintiffs’ complaint, viewing those facts and all reasonable inferences in
    the light most favorable to the Plaintiffs. See Dist. Ct. Memorandum Opinion &
    Order at 6; see also Roman v. Cessna Aircraft Co., 
    55 F.3d 542
    , 543 (10th Cir.
    1995). Applying that standard, the district court set forth a thorough recital of the
    relevant facts, drawing those essential facts from the well-pleaded allegations in
    -3-
    the Plaintiffs’ original and first amended complaints. See Dist. Ct. Memorandum
    Opinion & Order at 2-6. Because this court’s de novo review of the Plaintiffs’
    amended complaint reveals that the district court’s rendition of the facts is both
    thorough and accurate, and because neither party on appeal objects to the district
    court’s statement of the facts, this court need not restate the relevant facts.
    The district court began by addressing each of the Plaintiffs’ numerous
    federal claims. As noted by the district court, the Plaintiffs’ federal due process
    claims arise out of the events surroundings C.J.’s ten-day suspension. In
    particular, the Plaintiffs argue that they were denied due process with regard to
    the manner in which Reeves investigated and handled the suspension. They
    further argue that the post-suspension hearing was not in conformity with Alpine
    School District policy. As to Plaintiffs’ claims regarding the processes utilized
    by Reeves in investigating and handling C.J.’s suspension, the district court
    concluded those processes afforded C.J. the rudimentary precautions against
    unfair or mistaken findings of misconduct as required by Goss v. Lopez, 
    419 U.S. 565
    , 581 (1975). With regard to the post-suspension hearing, the district court
    noted that the Jensens were given notice of the hearing and an opportunity to
    attend. When the Jensens were unable to attend the hearing, the administrative
    panel sent them a tape of the hearing and informed the Jensens that they could
    respond in writing or set another time to reconvene the panel. These procedures
    -4-
    complied with Alpine School District policy. Finally, the district court concluded
    that to the extent Carl and Judy Jensen were claiming a violation to their due
    process rights arising out of the suspension of C.J., those claims failed because
    procedural due process is due to the student facing suspension, not that student’s
    parents.
    As to Plaintiffs’ claims arising under the Rehabilitation Act, the district
    court noted that although the Jensens were provided with all the documents
    necessary for C.J. to be considered for a special education placement, including
    permission slips, the Jensens never consented to the placement of C.J. in such a
    program. Absent such consent, the Defendants were without authority to place
    C.J. in a program providing special education and related services. Furthermore,
    the district rejected as inconsistent with controlling regulations the Plaintiffs’
    assertion that their private evaluation of C.J., which was communicated to C.J.’s
    classroom teacher and other school officials in the process of dealing with and
    trying to control C.J.’s behavioral outbursts, constituted consent to special
    placement. See 
    34 C.F.R. §§ 300.500
    , 300.504.
    The Plaintiffs’ amended complaint also alleged that the Defendants denied
    C.J. equal protection under the United States Constitution when they treated him
    differently than other similarly situated students. In finding that this allegation
    failed to state a claim, the district court first noted that neither the Plaintiffs’
    -5-
    original nor amended complaints alleged any facts to support their conclusory
    allegation that C.J. was treated differently from similarly situated students.
    Furthermore, the Plaintiffs’ equal protection claim is premised on the assumption
    that C.J. qualified as disabled under the Rehabilitation Act. The district court
    concluded that because the Plaintiffs’ Rehabilitation Act claim failed as set forth
    above, their equal protection claim failed on the same grounds.
    The district court concluded the Jensens’ claim that the Defendants had
    interfered with their right to direct the care and upbringing of C.J. failed because
    the well-pleaded facts in the amended complaint demonstrated the Defendants’
    actions were rationally related to the legitimate state purpose of disciplining
    students who violate school rules. See generally San Antonio Indep. Sch. Dist. v.
    Rodriguez, 
    411 U.S. 1
    , 44 (1973); New Jersey v. T.L.O., 
    469 U.S. 325
    , 334
    (1985). The district court recognized, however, that the “rational relationship”
    test did not apply to the extent the Jensens had coupled their parental-right claim
    with a free-exercise-of-religion claim. Nevertheless, other than broadly stating
    that the actions of the Defendants “interfered with their ability to live what they
    believe is the best way to fulfill their moral duty to God regarding C.J. by
    providing for his social and moral development” the Plaintiffs’ amended
    complaint failed to identify any specific religious belief that was infringed by the
    Defendants during the events surrounding the suspension of C.J. Even assuming,
    -6-
    however, that the Jensens had successfully added a religious component to their
    parental-rights claim, the district court concluded the amended complaint still
    failed to state a claim. There was nothing in the complaint to indicate the actions
    of the Defendants were based on anything other than purely secular considerations
    that were content neutral and implemented in a reasonable manner. See Dep’t of
    Human Res. v. Smith, 
    494 U.S. 872
    , 882 (1990) (“Respondents urge us to hold,
    quite simply, that when otherwise prohibitable conduct is accompanied by
    religious convictions, not only the convictions but the conduct itself must be free
    from governmental regulation. We have never held that, and decline to do so
    now.”).
    As to C.J.’s claim regarding injury to his reputational interests, the district
    court simply noted that something more than mere defamation must be involved in
    order to state a federal claim under 
    42 U.S.C. § 1983
    . See Paul v. Davis, 
    424 U.S. 693
    , 712 (1976). Because the Defendants provided C.J. all of the process
    due during the suspension-decision proceedings, the fact that other students were
    aware of the suspension could not, standing alone as it did, form the basis of an
    action for injury to reputation.
    In their first amended complaint, the Plaintiffs asserted that Reeves
    violated their right to privacy, which right arose under the Fourth Amendment, the
    Fourteenth Amendment, and FERPA. The district court concluded that the
    -7-
    Plaintiffs’ privacy claims based on the Fourth and Fourteenth Amendments failed
    to state a claim because Reeves’ investigation of the complaints against C.J. was
    reasonable and Reeves’ suspension decision was made in conformity with Lopez.
    The district court concluded that the Plaintiffs’ privacy claims based on FERPA
    failed to state a claim because: (1) Reeves’ alleged disclosure to the parents of
    children involved as victims or witnesses did not constitute a prohibited
    disclosure of an educational record under 20 U.S.C. § 1232g; (2) FERPA only
    regulates the release of records pursuant to a policy or practice and there was
    nothing in the complaint to indicate Reeves’ disclosures were pursuant to such a
    policy or practice; and (3) FERPA does not create a private cause of action
    enforceable under § 1983.
    The district court dismissed the Plaintiffs’ claims relating to their right to
    petition the government for redress of grievances, noting that the chain-of-
    command comments attributable to the Defendants, even if they could be
    construed as critical of the Jensens’ actions in contacting the Alpine School
    District Superintendent rather than Reeves, fell far short of an infringement of the
    Jensens’ right to petition for redress of grievances.
    This court reviews the sufficiency of a complaint de novo and will affirm a
    12(b)(6) dismissal only if “it appears beyond doubt that the plaintiff can prove no
    set of facts in support of his claim which would entitle him to relief.” Sutton v.
    -8-
    Utah State Sch. for the Deaf & Blind, 
    173 F.3d 1226
    , 1236 (10th Cir. 1999)
    (quotations omitted). All well-pleaded allegations in the complaint are accepted
    as true and viewed in the light most favorable to the Plaintiffs. See 
    id.
    Nevertheless, while this court must accept reasonable inferences derived from
    well-pleaded facts, we need not accept mere conclusions characterizing pleaded
    facts or “unwarranted inferences drawn from the facts or footless conclusions of
    law predicated upon them.” Bryson v. City of Edmond, 
    905 F.2d 1386
    , 1390 (10th
    Cir. 1990) (quotations omitted).
    This court has conducted a de novo review of the Plaintiffs’ original and
    amended complaints, the district court’s order of dismissal, and the parties’ briefs
    and contentions on appeal. That review demonstrates that the district court’s
    order of dismissal is comprehensive, thorough, and substantially correct.
    Accordingly, with the exception of the brief comments set out below with regard
    to the Plaintiffs’ FERPA claims, this court affirms the district court’s 12(b)(6)
    dismissal of the Plaintiffs’ federal claims for substantially those reasons set forth
    in the district court’s order of dismissal filed March 29, 1999.
    We recognize that after the district court entered its order of dismissal this
    court issued its opinion in Falvo v. Owasso Independent School District No. 1-
    001, 
    233 F.3d 1203
     (10th Cir. 2000). In Falvo, this court held that the provisions
    of FERPA can be privately enforced through an action brought pursuant to §
    -9-
    1983. See id. at 1211-13. Based on Falvo, this court specifically disavows any
    contrary conclusion expressed by the district court in dismissing the Plaintiffs’
    amended complaint. Nevertheless, this court concludes that the district court
    correctly dismissed the Plaintiffs’ FERPA claims.
    The Plaintiffs’ complaint identifies two disclosures that purportedly
    implicate FERPA’s privacy provisions. The first disclosure occurred on October
    31, 1997, in a memorandum sent by Reeves to the parents of a female student
    named L.P. According to the amended complaint, “[t]he memorandum outlined
    what had been done in response to a harassment complaint that had been filed
    against C.J. The memorandum indicated that matters had been investigated in
    accordance with district policy and C.J. would lose his lunch privileges during the
    first week of November and be required to stay in the principal’s office.” Like
    the district court, we conclude that the contemporaneous disclosure to the parents
    of a victimized child of the results of any investigation and resulting disciplinary
    actions taken against an alleged child perpetrator does not constitute a release of
    an “education record” within the meaning of 20 U.S.C. § 1232g(a)(4)(A).
    Reading such disclosures to fall within the ambit of § 1232g would place
    educators in an untenable position: they could not adequately convey to the
    parents of affected students that adequate steps were being undertaken to assure
    the safety of the student. Nor do we think that such a targeted, discrete,
    -10-
    contemporaneous disclosure fits within the bounds of the plain language of §
    1232g(a)(4)(A). Finally, we note that this particular disclosure is completely
    unlike the broad, routinized disclosures of student grades at issue in Falvo. See
    233 F.3d at 1207.
    The second disclosure set out in the Plaintiffs’ amended complaint related
    to a separate playground incident that allegedly occurred on March 2, 1999. The
    amended complaint alleges that on March 4th, Reeves sent a series of memoranda
    to “the parents of students who had claimed they had been hit or touched by C.J.
    as well as other students who had reported were [sic] witnesses to the conduct of
    C.J.” In both their appellate brief and at oral argument, the Plaintiffs emphasized
    that this second disclosure went not only to the parents of the children allegedly
    assaulted by C.J., but also to the parents of children who simply witnessed the
    incident. This court need not decide how a broader, yet still contemporaneous,
    disclosure to the parents of children witnesses, in addition to the parents of
    alleged victims, would affect the calculus set out above because the memoranda
    identified in the amended complaint simply do not disclose anything that could
    qualify as an education record under § 1232g(a)(4)(A). Instead, the memoranda
    all reflect the following information: (1) an incident allegedly occurred on the
    playground involving C.J. and a number of other children; (2) C.J. was allegedly
    verbally and/or physically abusive to several children during the incident; (3) each
    -11-
    addressee’s child had been questioned about the incident and each reported C.J.
    had been abusive in some manner; (4) C.J. was informed that if he had been
    abusive, he must stop such behavior immediately; and (5) C.J. was warned that
    there were consequences for abusive behavior. As should be apparent, the
    memoranda identified in the complaint disclosed no more than the fact that the
    addressee’s child had been involved in an alleged incident involving C.J., either
    as a victim or witness, and that the addressee’s child had been questioned about
    the incident. The memoranda do not disclose whether C.J. was ultimately found
    to be at fault, whether he was punished, or, if so, what that punishment was. The
    Plaintiffs have not identified, and this court has not found, a single case holding
    that the extremely limited type of information conveyed here constitutes an
    education record under § 1232g. Accordingly, this court concludes that the
    district court did not err in dismissing the Plaintiffs’ FERPA claim pursuant to
    Fed. R. Civ. P. 12(b)(6).
    Having concluded that the district court properly dismissed the Plaintiffs’
    federal claims, we must move on to address the propriety of the district court’s
    decision to address the Plaintiffs’ state claims on the merits. On appeal, the
    Plaintiffs raise the following three primary contentions: (1) the district court
    abused its discretion in reaching the merits of their state claims after having
    dismissed all federal claims; (2) the district court erred in concluding that the
    -12-
    state claims were barred because of the Plaintiffs’ failure to comply with the
    notice-of-claim provisions of the Governmental Immunity Act (the “Act”), 
    Utah Code Ann. §§ 63-30-11
    , 63-30-13; and (3) even assuming their failure to file a
    notice of claim barred their action for money damages, their claims for
    declaratory and equitable relief were unaffected by the Act’s notice-of-claim
    provisions.
    Citing to this court’s opinion in Bauchman ex rel. Bauchman v. West High
    School, 
    132 F.3d 542
    , 549-50 (10th Cir. 1997), the Plaintiffs assert that the
    district court erred in reaching the merits of their state law claims after dismissing
    their federal claims on the pleadings. Although Bauchman noted a general
    preference in favor of dismissing state claims without prejudice when federal
    claims are dismissed on the pleadings, it noted that district courts retain discretion
    to reach the merits of pendent state claims. See 
    id. at 549
    . On appeal, this court
    analyzes only whether the district court abused that discretion. See 
    id. at 550
    . In
    this circuit, abuse of discretion is defined as “an arbitrary, capricious, whimsical ,
    or manifestly unreasonable judgment.” Coletti v. Cudd Pressure Control, 
    165 F.3d 767
    , 777 (10th Cir. 1999). Upon review of the record, keeping in mind those
    factors identified by the court in Bauchman, we conclude that the district court
    did not abuse its discretion in reaching the merits of the state claims. See 132
    F.3d at 549 (“Pendent jurisdiction is exercised on a discretionary basis, keeping in
    -13-
    mind considerations of judicial economy, convenience and fairness to the
    litigants.”). In particular, as briefly set forth below, this court agrees with the
    district court’s resolution of the Plaintiffs’ state claims and with the district
    court’s observation that the Plaintiffs’ state claims are not as novel as Plaintiffs
    would paint them.
    Under the provisions of the Act, all claims against a political subdivision
    and its employees are barred unless a notice of claim is filed with the appropriate
    entity within one year after the claim against that entity or its employees arises.
    See 
    Utah Code Ann. § 63-30-13
    . It is uncontested that the Plaintiffs never filed a
    notice of claim. Citing the Utah Supreme Court’s decision in Bott v. DeLand, 
    922 P.2d 732
     (Utah 1996), the Plaintiffs argued before the district court that because
    their claims arose under the Utah Constitution, the Act and its notice-of-claim
    provisions did not apply. In rejecting this argument, the district court first
    recognized that Bott did stand for the proposition that governmental entities
    cannot use governmental immunity to shield themselves from liability for
    violations of the Utah Constitution. See 
    id. at 736
    . Nevertheless, the district
    court concluded that Bott could not be reasonably read for the proposition that
    none of the provisions of the Act, including its purely procedural requirements,
    apply to claims arising under the Utah Constitution. Instead, relying on the plain
    language of the Act, the district court concluded that the Act’s notice-of-claim
    -14-
    provisions applied to all claims against a governmental entity and its employees.
    See 
    Utah Code Ann. §§ 63-30-2
    (1), -11.
    On appeal, the Plaintiffs reassert the same arguments raised before the
    district court. Like the district court, this court does not read Bott as standing for
    the broad proposition advanced by the Plaintiffs. In fact, the court in Bott
    specifically recognized that the legislature could impose rules and regulations
    regarding remedies for constitutional violations, as long as those rules do not
    unreasonably impair the constitutional right at issue. See 922 P.2d at 736.
    Plaintiffs never asserted before the district court that the Act’s notice-of-claim
    provisions constitute an unreasonable impairment. Furthermore, it is worth noting
    that the Act specifically provides that constitutional claims involving the taking
    of private property without just compensation are governed by the Act. See 
    Utah Code Ann. § 63-30-10.5
    . This belies the Plaintiffs’ assertion that the Utah
    legislature never intended that claims based on the Utah Constitution be governed
    by the provisions of the Act.
    Finally, Plaintiffs contend that even assuming their claims for money
    damages are barred by their failure to file a notice of claim, the district court
    erred in dismissing with prejudice their state claims for declaratory and equitable
    relief. See 
    id.
     § 63-30-2(1) (defining claim for purposes of the Act as “any claim
    or cause of action for money or damages”); id. § 63-30-13 (“A claim against a
    -15-
    political subdivision, or against its employees for an act or omission occurring
    during the performance of the employee’s duties . . . is barred unless notice of
    claim is filed with the governing body of the political subdivision . . . within one
    year after the claim arises.” (emphasis added)). This court has scoured the
    appellate record and concludes that this argument was never advanced before the
    district court. The Plaintiffs’ filings before the district court only vaguely
    reference the fact that their state claims contained equitable and declaratory
    elements. Those filings, however, never indicated any specific legal basis for
    treating the equitable claims differently from the damages claims. Because the
    Plaintiffs failed to adequately raise this argument before the district court, we will
    not consider the question for the first time on appeal. See Walker v. Mather (In re
    Walker), 
    959 F.2d 894
    , 896 (10th Cir. 1992). 1
    1
    We reach the same resolution as to the Plaintiffs’ claims that (1) C.J.’s
    time for filing a notice of appeal has not expired because of his minority and (2)
    the district court should have liberally read their complaint as stating a claim that
    the individual employees acted in a fraudulent or malicious fashion thereby
    obviating the need to file a notice of claim. Because these arguments were not
    raised before the district court, this court will not consider them on appeal.
    -16-
    The judgment of the United States District Court for the District of Utah
    dismissing the Plaintiffs’ claims pursuant to Fed. R. Civ. P. 12(b)(6) is hereby
    AFFIRMED.
    ENTERED FOR THE COURT:
    Michael R. Murphy
    Circuit Judge
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