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Rose v. Emergency Medical Training Processional, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

September 30, 2019

AMOS ROSE, Plaintiff,



         Plaintiff Amos Rose sued his former school, Emergency Medical Training Professionals, LLC[1] (“EMTP”), and Gerria S. Berryman, individually and in her official capacity as program director, in Fayette Circuit Court following his termination from the program. [R. 1-2] Defendants filed a Notice of Removal to this Court [R. 1]. This matter is now before the Court on Defendants’ Motion to Dismiss [R. 5]. Plaintiff filed a response [R. 7], and Defendants filed their reply [R. 8]. Fully briefed, this matter is ripe for decision. For the reasons stated herein, the Court will grant the Defendants’ Motion to Dismiss.

         I. Background

         Defendant EMTP operates a private, for-profit educational facility in Lexington, Kentucky that provides training for its students to be employed as paramedics. [R. 1-2 at p. 2] Plaintiff Rose enrolled in Defendants’ program in October 2017. Id. at p. 3. On September 4, 2018, a field internship site accused Rose of falsifying patient run reports. Id. Rose states that he was also accused of “sending a threatening message concerning the unwarranted allegations.” Id. Subsequently, EMTP terminated Rose from the training program. Id. Rose appealed his termination, but the appeals process affirmed his dismissal. Id.

         On January 18, 2019, Rose sued Defendants EMTP and Berryman in Fayette Circuit Court alleging that he was “a victim of retaliation” and “denied procedural due process when he appealed the Defendant’s decision to terminate” him from the training program. Id. at p. 4. Rose further alleged that the Defendants’ acts were “arbitrary and capricious.” Id. at p. 5. Rose’s complaint states that he is entitled to “compensation, punitive damages, as well as damages for embarrassment and humiliation.” Id. at p. 6. Defendants have moved to dismiss all claims against them pursuant to Fed.R.Civ.P. 12(b)(6). [R. 5]

         II. Motion to Dismiss Standard

         Dismissal is proper pursuant to Fed.R.Civ.P. 12(b)(6) where the plaintiff “fails to state a claim upon which relief can be granted.” A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Rule 8 “does not require ‘detailed factual allegations, ’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is factually plausible if the complaint contains factual allegations that “allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. This does not require a showing that the defendant is probably liable, but “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. To meet this plausibility standard, the complaint must contain more than “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Id. A complaint whose “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct” does not satisfy the pleading requirements of Rule 8 and will not withstand a motion to dismiss. Id. at 679. In order to survive a Rule 12(b)(6) motion, the complaint must “contain either direct or inferential allegations respecting all material elements necessary for recovery under a viable legal theory.” D’Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). The “complaint is viewed in the light most favorable to [the plaintiff]; the allegations in the complaint are accepted as true, and all reasonable inferences are drawn in [the plaintiff’s] favor.” Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016).

         III. Discussion

         A. Count I: 42 U.S.C. § 1983

         Count I of Rose’s complaint alleges a claim under 42 U.S.C. § 1983 for violation of his First Amendment rights. [R. 1-2] After his internship accused him of falsifying patient run reports, Plaintiff made a public post online which stated, in part, that he was “extremely butthurt mad” that EMTP degraded his achievements, and that he hoped a person associated with EMTP “contracts ebola [sic].” [R. 5-1 at p. 1] Plaintiff argues that this post was part of the reason for his termination from the program and that decision violated his First Amendment rights to free speech. [R. 1-2] Defendants argue that the claim should be dismissed, as the complaint fails to allege state action required under § 1983. [R. 5-1]

         A private entity acting on its own cannot deprive a citizen of First Amendment rights. Wilcher v. City of Akron, 498 F.3d 516, 519 (6th Cir. 2007). As such, EMTP-a private, for-profit educational facility-cannot violate Rose’s First Amendment rights on its own. State action must be present to trigger First and Fourteenth Amendment protections. Lansing v. City of Memphis, 202 F.3d 821, 828 (6th Cir. 2000). Here, Plaintiff fails to allege that either EMTP or Ms. Berryman was a state actor. In fact, Plaintiff’s only mention of any connection between EMTP and the state is the bare allegation that “it is the belief of the Plaintiff that the Defendant is a recipient of federal funds.” [R. 1-2 at p. 6] This threadbare assertion fails to sufficiently allege an essential element of a § 1983 claim-that Defendants were state actors-and offers the Court no basis for finding that the Defendants’ actions can be “fairly attributable” to the state. Iqbal, 556 U.S. at 678; see also Russo v. City of Cincinnati, 953 F.2d 1036, 1042 (stating that a § 1983 claim must identify “a person acting under color of state law”).

         When a private entity’s actions so approximate state action that they may be “fairly attributed” to the state, a private entity can be held to constitutional standards. Lansing, 202 F.3d at 828. The Sixth Circuit recognizes three tests for determining whether private conduct is fairly attributable to the state: the public function test, the state compulsion test, and the nexus test. Ellison v. Garbarino, 48 F.3d 192, 195 (6th Cir. 1995). A plaintiff need only show state action under one of the tests in order to proceed with his claim. Wilcher, 498 F.3d at 519. The public function test requires that “the private entity exercise powers which are traditionally exclusively reserved to the state, such as holding elections or eminent domain.” Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992). The state compulsion test requires proof that the state significantly encouraged or somehow coerced the private party, either overtly or covertly, to take a particular action so that the choice is really that of the state. Id. The nexus test requires a sufficiently close relationship between the state and private actor so that the act may be attributed to the state. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Plaintiff has failed to allege facts that would support a determination under any of the three tests that EMTP’s conduct is “fairly attributable” to the state.

         The Sixth Circuit has consistently required more than “bare allegation[s]” that the actions of a private party “appear[] to be fairly attributed to state action.” Hardy v. Cmty. Mental Health, No. 17-2181, 2018 WL 4846570, at *3 (6th Cir. Jul. 10, 2018) (citing Twombly, 550 U.S. at 555). In Hardy, for example, the Plaintiff alleged that his former employer-a non-profit corporation which received state and federal funding-violated his First Amendment rights by retaliating against him after he complained about certain staff. Hardy, 2018 WL 4846570, at *1. However, the Plaintiff “did not allege that state officials had any involvement in [his employer’s] decision to terminate his employment.” Id. The Sixth Circuit affirmed, stating that the “district court correctly concluded that [the plaintiff] failed to allege ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).

         Wilcher is also particularly instructive in resolving the § 1983 claim against Defendants. In that case, the Plaintiff argued that a cable television operator should be considered a state actor because the operator and city worked “hand-in-glove” to enact new regulations. Wilcher, 498 F.3d at 520. The Sixth Circuit affirmed the district court’s dismissal of Plaintiff’s complaint under Rule 12(b)(6) because although some television “channels were subject to both federal and state regulation, . . . this alone did not convert [the cable operator’s] private action into state action.” Id. at 521 (internal citation omitted). As a result, ...

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