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Hunt v. Board of Regents of University of New Mexico

United States District Court, D. New Mexico

September 6, 2018

PAUL HUNT, Plaintiff,
v.
BOARD OF REGENTS OF THE UNIVERSITY OF NEW MEXICO; SCOTT CARROLL, M.D., in his individual and official capacities; JOHN DOE and JANE DOE MEMBERS OF THE COMMITTEE FOR STUDENT PROMOTION AND EVALUATION, in their individual and official capacities, TERESA A. VIGIL, M.D., in her individual and official capacities; PAUL ROTH, M.D., in his individual and official capacities, Defendants.

          MEMORANDUM OPINION AND ORDER

         This 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         The following facts are supported by the record and viewed in the light most favorable to the Plaintiff.

         In 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 pertinent part:

• 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 disparaging. …
• 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.

Doc. 3-2.

         The 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.

         Shortly 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. You're abhorrent.
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 ridiculous.
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.

         On 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 committee members.”

         On 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.

         On 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.

         Over 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 ...


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