United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter is before the Court on Defendants' Motion to
Dismiss or for Summary Judgment [Doc. 3]. In addition to
the motion and supporting brief, the Court has considered the
Plaintiff's response [Doc. 15] the Defendants' reply
[Doc. 16], the evidence submitted by the parties, and the
relevant legal authorities. The Court concludes that
Defendants are entitled to qualified immunity on
Plaintiff's constitutional claims against them, and that
the motion for summary judgment should be granted.
AND PROCEDURAL BACKGROUND
following facts are supported by the record and viewed in the
light most favorable to the Plaintiff.
November of 2012, Plaintiff Paul Hunt was a medical student
at the University of New Mexico School of Medicine
(“UNMSOM”). Doc. 1-1 at 1. UNMSOM has a Social
Media Policy to address the use of social media sites such as
Facebook, Twitter, YouTube and Flickr, which provides in
• Be mindful that all posted content is subject to
review in accordance with UNMSOM policies and the Student
Professional Code of Conduct. …
• Exercise discretion, thoughtfulness and respect for
your colleagues, associates and the university's
supporters/community (social media fans). Avoid discussing or
speculating on internal policies or operations. Refrain from
engaging in dialogue that could disparage colleagues,
competitors, or critics.
• Refrain from reporting, speculating, discussing or
giving any opinions on university topics or personalities
that could be considered sensitive, confidential or
• UNMSOM does not routinely monitor personal websites or
social media outlets, however any issues that violate any
established UNM Policy will be addressed.
• Violation of this or an UNM policy may result in
disciplinary action, up to and including dismissal from UNM.
University of New Mexico has also adopted a Respectful Campus
Policy. It provides, in relevant part:
Individuals at all levels are allowed to discuss issues of
concern in an open and honest manner, without fear of
reprisal or retaliation from individuals above or below them
in the university's hierarchy. At the same time, the
right to address issues of concern does not grant individuals
license to make untrue allegations, unduly inflammatory
statements or unduly personal attacks, or to harass others,
to violate confidentiality requirements, or engage in other
conduct that violates the law or University policy.
Doc. 3-3 at 2.
after the presidential election in November of 2012, Hunt
posted the following statement on his personal Facebook page:
All right, I've had it. To all of you who support the
Democratic candidates: The Republican Party sucks. But guess
what. Your party and your candidates parade their depraved
belief in legal child murder around with pride.
Disgusting, immoral, and horrific. Don't celebrate
Obama's victory tonight, you sick, disgusting people.
Shame on you for supporting the genocide against the unborn.
If you think gay marriage or the economy or taxes or whatever
else is more important than this, you're fucking
You're WORSE than the Germans during WW2. Many of them
acted from honest patriotism. Many of them turned a blind eye
to the genocide against the Jews. Bur you're celebrating
it. Supporting it. Proudly proclaiming it. You are a disgrace
to the name of human.
So, sincerely, fuck you, Moloch worshipping assholes.
Doc. 3-1. The Facebook post was not directed at any
individual, nor did it contain any reference to UNM or
UNMSOM. Doc. 15-1 at 1 ¶ 6.
November 15, 2012, Defendant Scott Carroll, M.D.
(“Carroll”) wrote a letter to Hunt informing him
that the Dean of Students had formally referred Hunt to the
Committee for Student Performance and Evaluation
(“CSPE”). The referral stemmed from allegations
of unprofessional conduct made by other students against Hunt
arising from his Facebook post. Doc. 3-2 at 9. In the letter,
Carroll stated, “[w]hile you have every right to your
political and moral opinions and beliefs, there is still a
professionalism standard that must be maintained as a member
of the UNM medical school community.” Id.
Carroll then quoted from the UNM Respectful Campus Policy
that states, “the right to address issues of concern
does not grant individuals license to make untrue
allegations, unduly inflammatory statements or unduly
personal attacks, or to harass others . . .”
Id. Finally, the letter informed Hunt that
“CSPE will be conducting an investigation into the
allegations at its November 20th meeting at 3pm [sic] and we
would like you to prepare a statement regarding the
allegations and be prepared to answer questions from the
November 20, 2012, Hunt appeared before the CSPE, where he
recognized members of the NMSOM faculty, as well as some
fellow students. Doc. 15-1 at 4, ¶ 17. He read a
prepared statement acknowledging his “guilt” and
asking for help. Id. at ¶ 18. Then he answered
questions from members of the CSPE. Id. at 4.
January 24, 2013, Carroll again wrote to Hunt informing him
that after the November 20th meeting, the CSPE
“substantiated that [Hunt's] Facebook post was in
fact unprofessional conduct due to violations of the UNM
Respectful Campus Policy (2240) and the UNM School of
Medicine Social Media Policy. Doc. 15-1 at 11. Carroll told
Hunt that he would be given a two-part “professional
enhancement prescription.” Id. The first,
focusing on ethics, involved mentorship by a faculty member
who would “assign readings and supervise a reflective
writing assignment on patient autonomy and tolerance.”
Id. The second, focused on professionalism, was
comprised of four parts: (1) a reflective writing assignment
on the public expression of political beliefs by physicians,
(2) an apology letter, which Hunt could present to anyone of
his choice, or no one at all, (3) rewriting the Facebook post
in a passionate, yet professionally appropriate way, and (4)
ongoing meetings with Dr. Tim Nelson over a one-year period.
Id. Next, the letter informed Hunt that the
professionalism violation would be noted in the
recommendation letter the Dean would provide to residency
training programs, but that in the future Hunt could petition
CSPE to remove the notation. Id. The letter stated
the further professionalism lapses or failure to fulfill any
of the professionalism requirements described in the letter
could result in adverse action, including dismissal from the
UNMSOM. Id. at 11-12. Finally, Carroll's letter
quoted the UNMSOM Promotions and Due Process Policy,
informing Hunt that if he believed the CSPE's decision
imposing corrective action was flawed, he could request in
writing that the Senior Associate Dean of Education review
the decision. Id. at 12. Hunt did not utilize the
review process. Doc. 3-2 at 2, ¶ 5.
the next twelve months, Hunt met with his
“professionalism mentor, ” Dr. Nelson, twelve
times as prescribed in the January 24, 2013 letter. Doc. 15-1
at 5, ¶ 25. In addition, Hunt rewrote his Facebook post
as required by CSPE; however, it rejected his first attempt.
Id. at ¶ 29; Doc. 15-1 at 12 (Ex. D). However,
the CSPE accepted Hunt's second rewrite. Doc. 15-1 at 6,
¶ 30; Doc. 15-1 at 14 (Ex. E). The second rewrite still