United States District Court, N.D. Indiana, South Bend Division
REPORT AND RECOMMENDATION
Michael G. Gotsch, Sr. United States Magistrate Judge.
16, 2017, Defendants, Shane Prance, Thomas Albano, James
Dworkin, Mitch Daniels, Purdue University Northwest
(“PNW”) (formerly known as Purdue University
North-Central (“PNC”), Purdue University, and the
trustees of Purdue University (collectively, “the
Defendants”), filed their Motion to Dismiss. On May 31,
2017, Plaintiff Jose Resendez (“Resendez”), filed
his response in opposition to Defendants' motion.
Defendants' motion became ripe on June 2, 2017, when
Defendants filed a reply brief. On October 19, 2017,
Defendants' motion was referred to the undersigned for a
report and recommendation pursuant to 28 U.S.C. §
636(b)(1)(B), Fed.R.Civ.P. 72(b), and N. D. Ind. L.R.
72-1(b). Before the undersigned could issue a report and
recommendation, Defendants augmented the record by filing a
Notice of Supplemental Authorities on December 26, 2017.
Resendez filed his response to Defendants' supplemental
authorities on January 10, 2018. For the following reasons,
the undersigned RECOMMENDS that
Defendants' motion be GRANTED. [DE
brought this action as the result of a series of events
culminating in his suspension from the PNC baseball team. As
he alleges himself, Resendez is a brown-skinned and darkly
complexioned Hispanic of Mexican descent, who enrolled
as a student at PNC on August 26, 2013, and earned a spot on
the PNC baseball team for the 2014-2015 season. [DE 17 at
2-3, ¶¶ 16, 28, 31]. Resendez alleges that
Shane Prance (“Prance”), the team's head
coach, maliciously directed a racially derogatory comment at
him on March 19, 2015, when he said, “I don't want
to deal with campus police saying a Mexican with a beard is
jumping the fence and causing trouble on the field,
[Resendez] that was directed to you.” [Id. at
3-4, ¶ 34]. On March 30, 2015, Prance then called
Resendez a “pussy” and a “lazy piece of
shit, ” which led to a verbal altercation between them.
[Id., ¶¶ 32, 36, 38]. Afterwards, on March
31, 2015, Prance forced Resendez, and Resendez alone, to run
for two hours straight rather than be engaged in the
team's regular practice session. [Id., ¶
Prance allegedly told Resendez's father, who had called
Prance, that Resendez had attacked him and chest-bumped him
four to five times during the March 30th altercation.
Similarly, Prance allegedly told PNC athletic director Tom
Albano (“Albano”) that Resendez had physically
assaulted him by charging and bumping into him during the
March 30th altercation. [Id. at 3, 6, ¶¶
April 13, 2015, Prance filed a police report regarding a
separate incident at his home. According to the police report
attached to Resendez's Amended Complaint, Prance was
lying in his bed in Westville, Indiana when a paint ball gun
was fired at his house. [DE 17-1 at 5]. Prance then
reported seeing Resendez's girlfriend's vehicle
parked in front of his residence, and that he later saw
Resendez driving that same vehicle. Resendez denies having
had anything to do with the paint ball attacks and alleges he
and his girlfriend were in LaPorte, Indiana at the time of
after, however, Resendez met with Albano as documented in a
PNC Police Department Case Report attached to Resendez's
Amended Complaint. [Id. at 2]. During the meeting,
Albano discussed with Resendez what appears to be the March
30th altercation with Prance as well as the April 13th paint
ball incident at Prance's home. Additionally, Resendez
was informed that he was suspended from the baseball team
until an investigation into the incidents was completed.
October 6, 2015, Resendez then filed a false information
report with the PNC Police Department as documented in a
supplemental Case Report attached to Resendez's Amended
Complaint. [Id. at 1]. In the supplemental report,
Resendez indicated that Albano and Prance had given false
information in a previous police report, presumably regarding
the March 30th altercation and the paint ball incident. The
supplemental report stated that “Albano conducted an
investigation and found that [Prance's] allegation was
false yet [Resendez] remains suspended.”
[Id.]. Resendez alleges that no one at PNC filed
false reporting charges relating to this incident. [DE 17
at 7, ¶ 71].
also alleges that he sought help from Chancellor James
Dworkin (“Dworkin”) who promised he would
“take care of the situation.” [Id.,
¶ 73]. Resendez further alleges that Dworkin directed
him to an HR person but refused to meet with him further or
to lift his suspension. [Id.].
on these facts, Resendez initiated this action on December
16, 2016. In response to a motion to dismiss, Resendez filed
the operative Amended Complaint on April 25, 2017, which
includes six counts. Count I alleges that Defendants PNC/PNW
and Purdue University racially discriminated against Resendez
in violation of Title VI of the Civil Rights Act of 1964, 42
U.S.C. § 2000d. In Count II brought pursuant to 42
U.S.C. § 1983, Resendez alleges that Prance, Albano, and
Dworkin, in their individual capacities, violated his rights
under the Equal Protection Clause of the Fourteenth Amendment
to the U.S. Constitution by treating non-white
students-athletes differently than white student-athletes.
Also pursuant to 42 U.S.C. § 1983, Resendez raises
Monell failure to train, failure to supervise,
failure to discipline, failure to adequately screen and
investigate, and unconstitutional adopted policy claims
against Prance, Albano, Dworkin, and Daniels in Count VI.
Notably, the Amended Complaint does not specify whether Count
VI is being raised against Prance, Albano, Dworkin, and
Daniels in their individual or official capacities.
Additionally, Resendez brings pendent claims against Prance
in his individual capacity for defamation (Count III),
defamation per se (Count IV), and intentional
infliction of emotional distress (Count V) under Indiana law.
support of these claims, Resendez alleges that his suspension
is a result of being treated differently based on his race.
[Id., ¶ 81]. Resendez asserts that a white
player on the PNC baseball team had multiple arrests for
battery and driving while intoxicated, yet was only suspended
for ten (10) games. [Id. at 8, ¶ 83].
Additionally, Resendez contends that multiple white players
were found to have resisted arrest, yet were not suspended.
[Id., ¶ 84]. More generally, Resendez alleges
belief that he and the two other minority players did not get
to play as much as their white fellow athletes.
[Id., ¶ 86].
further alleges that the Title VI and equal protection
violations directed at him are part of a broader program of
disparate treatment of minorities at PNC. He asserts
systematic violations of the equal protection rights of
minorities at PNC due to a lack of adequate employee
training, supervision, protocols and investigation into
matters of discrimination. [Id. at 8-10,
¶¶ 87-101]. He also claims that Dworkin, Albano,
and Daniels are responsible for these failures.
[Id.at 12, ¶¶ 118-36].
to Federal Rule of Civil Procedure 12(b)(6), Defendants now
seek dismissal of all six of the claims in Resendez's
Fed.R.Civ.P. 12(b)(6), dismissal of a complaint is
appropriate when the complaint fails to allege a cause of
action for which relief can be granted. Federal law only
requires a plaintiff to provide a short and plain statement
of the claim that the pleader is entitled to relief.
Fed.R.Civ.P. 8; see Bartholet v. Reishauer A.G.
(Zurich), 953 F.2d 1073, 1078 (7th Cir. 1992). When
considering a 12(b)(6) motion to dismiss, the court should
read the complaint in the light most favorable to the
non-movant, accepting all of her well-pleaded facts as true
and drawing all reasonable inferences in her favor. Burke
v. 401 N. Wabash Venture, LLC, 714 F.3d 501, 504 (7th
Cir. 2013). A complaint that states a plausible claim for
relief survives a motion to dismiss. See Ashcroft v.
Iqbal, 556 U.S. 662, 677-79 (2009); see also
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556
(2007) (holding that there is no probability requirement at
the pleading stage, yet the alleged facts must be plausible
so as to entitle a person to relief even if recovery is
remote and unlikely). A claim has the requisite 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.” Archer v.
Chisholm, 870 F.3d 603, 612 (7th Cir. 2017) (quoting
Iqbal, 556 U.S. 678).
Federal Claims under Title VI (Counts I) and the Equal
Protection Clause (Counts II and VI)
contends that his suspension from the baseball team violates
the Equal Protection Clause of the Fourteenth Amendment as
well as Title VI of the Civil Rights Act of 1964, which
forbids racial discrimination by recipients of federal
grants. 42 U.S.C. § 2000d; cf. Brewer v. Board of
Trustees, 479 F.3d 908, 921 (7th Cir. 2007) (analyzing a
graduate student's Title VI claim that he was dropped
from his graduate program because of his race).
Resendez's Title VI and equal protection claims allege
that he was punished more severely than if he had been white.
assert that Counts I, II, and VI all rest on the same factual
and constitutional foundation, but that Resendez fails to
allege plausible facts and the requisite elements for an
equal protection claim. Furthermore, Defendants argue that
Defendants Prance, Albano, Dworkin, and Daniels are protected
by the doctrine of qualified immunity. Additionally,
Defendants contend that Count VI fails because it fails to
state a claim and is ...