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Davenport v. Williams

United States District Court, D. Utah

November 20, 2017

Varlo Davenport, Plaintiff,
Richard “Biff” Williams et al., Defendants.


          Clark Waddoups United States District Judge

         Before the court is a Partial Motion to Dismiss First Amended Complaint[1] filed by Defendants Richard “Biff” Williams, Mark Houser, Don Reid, Jeffrey Jarvis, William Christensen, Del Beatty, Paul Morris, Steve Johnson, Ron Isaacson, Christina Durham, and Michael Carter. (Mtn. to Dismiss, ECF No. 44.) Defendants seek dismissal of various claims and parties identified in Plaintiff Varlo Davenport's Amended Complaint, which seeks relief under 42 U.S.C. § 1983 for purported violations of Davenport's First and Fourteenth Amendment rights. (Amended Complaint, ECF No. 14.) The court held oral argument on Wednesday, October, 25, 2017. (Minute Entry, ECF No. 64.) After carefully considering the arguments set forth in the briefs and during oral argument, the court GRANTS in part and DENIES in part Defendants' motion.


         1. The Parties

         Davenport was a tenured member of the theater department faculty at Dixie State University (DSU), a public collegiate institution, until December 5, 2014, when DSU administrators initiated termination proceedings against him. (Amended Complaint ¶¶ 21, 25, 27, & 125, ECF No. 14.) He was also eventually charged, jailed, tried, and acquitted for simple assault based on events related to his termination. (Id. ¶¶ 256, 280-81, 285-93.) Each of the Defendants, who are named in their individual capacity, was at the time of the events underlying this action employed by or working on behalf of DSU. (Id. ¶¶ 8-18.) Richard “Biff” Williams was the President of DSU, Mark Houser was a professor and the Chairperson of the Fine Arts Department, Don Reid was the Director of the Public Safety Department, William Christensen was the Executive Vice President and chief academic officer, Jeffrey Jarvis was the Dean of the School of Visual and Performing Arts, Del Beatty was the Dean of Students, Paul Morris was the Vice President of Administrative Services, Steve Johnson was the Director of Media Relations, Ron Isaacson was the Assistant Director of the Public Safety Department, Christina J. Durham was the Chairperson of the Board of Trustees, and Michael Carter was an Assistant Attorney General for the State of Utah assigned to DSU. (Id.) Davenport has also named ten Doe defendants whose names were unknown at the time of the Amended Complaint but whom he believes participated in the events that led to his termination and criminal prosecution in a manner that violated his constitutional rights. (Id. ¶ 19.)

         2. Davenport's Employment at DSU

         Davenport joined the DSU faculty in 2000 as a professor of theater arts. (Id. ¶ 21.) He achieved the academic rank of tenure on July 1, 2008. (Id. ¶ 27.) His professional responsibilities included teaching theater and acting classes, and “during his tenure at DSU, Davenport produced, acted in, and directed numerous plays for public audiences at DSU” in which DSU students acted (Id. ¶¶ 25, 42.). During oral argument on the instant motion, Davenport's attorney acknowledged that Davenport's position as professor required him to participate in the production of these plays, including instructing the student-actors. Some of the plays included “mature subject matter of a sexual nature, use of profanity, and the depiction of violence.” (Id.) Davenport alleges that Defendant Houser “professes pious beliefs that profanity, romantic or sexual acts, and acts of violence are serious sins which should not be portrayed” and that Houser targeted Davenport for demotion or termination because the plays Davenport selected conflicted with Houser's beliefs. (Id. ¶¶ 48, 50.) Davenport further alleges that when Houser himself was denied tenure in November 2014 by a faculty committee, of which Davenport was a member, Houser set out to undermine the committee, including by further targeting Davenport. (Id. ¶¶ 68, 70.)

         3. The Alleged Events

         During the fall semester of 2014, Davenport was teaching an introductory theater class with twelve students whose grades were contingent upon their “ability and willingness to act.” (Id. ¶¶ 75, 81.) Davenport used the teaching techniques of “physical restraint” and “prior experience.” (Id. ¶¶ 77-79.) He notified the students of these techniques and encouraged them to say “stop” when these techniques “went too far.” (Id. ¶¶ 81-82.)

         One of the students in the class was C.S., a then seventeen-year-old whose scholarship was contingent upon her academic performance, including her grade in Davenport's class. (Id. ¶ 80.) C.S. struggled in Davenport's class, and she was concerned she would earn a failing grade and consequently lose her scholarship. (Id. ¶ 84.) On November 21, 2014, C.S. and her acting partner, R.H., were to act out a scene of C.S.'s choosing. (Id. ¶ 84.) C.S.'s character was to become emotional and angry, but her performance was “flat, ” so Davenport used physical restraint and prior experience techniques in attempt to elicit a more emotional performance. (Id. ¶¶ 85-86.) As Davenport alleges, “[t]he physical resistance included CS pounding on RH's hands with her fists, a student holding her shoulders in her chair, Davenport gently tugging on her hair, and students touching her eyelashes and pulling her headband.” (Id. ¶ 86.) C.S. was also made to recall a family member's experience with drugs. (Id.) Davenport alleges that after class C.S. traveled home and reported to her parents that “Davenport hated her and had physically and emotionally abused her.” (Id. ¶ 88.) In response, her mother reported the incident to Houser, who allegedly told her that Davenport had a history of bullying students and promised her C.S. would receive an A in the course. (Id. ¶¶ 89, 91, 93.)

         At this same time, Houser allegedly began meeting with various DSU administrators, spreading word of Davenport's conduct, investigating the circumstances of C.S.'s claims, and ultimately seeking to have Davenport removed from the DSU faculty. (Id. ¶¶ 95-104.) Other administrators and university officials, including Defendant Reid, became involved in the investigation. (Id. ¶ 105.)

         As a result of the C.S. incident, Houser submitted a complaint against Davenport alleging assault to Defendant Williams, who had the final reviewing authority to fire a tenured faculty member pursuant to the faculty policy manual but who was not supposed to be involved in early termination proceedings. (Id. ¶ 108.) Houser and Reid also discussed the prospect of criminal charges against Davenport; Reid, at that time, believed the facts did not support a criminal case, but nevertheless he offered to file such criminal charges as a defensive move in anticipation of a civil lawsuit. (Id. ¶ 110.) Davenport was subsequently terminated, allegedly in a manner inconsistent with DSU policy. (Id. ¶¶ 122-189.)

         Members of the DSU community had a strong negative reaction to Davenport's firing. Among other acts of support, they began an online petition seeking to have him reinstated. (Id. ¶ 198.) Davenport alleges that several of the Defendants took action to bring criminal charges against him for the alleged assault on C.S. to legitimize the firing in response to the backlash. (Id. ¶¶ 202-210.) In order to convince the county prosecutors of the merit of the case, Reid and Isaacson began investigating, allegedly using coercive techniques and withholding or destroying evidence that supported Davenport's innocence. (Id. ¶ 211.) Williams and Durham also met with the Washington County Attorney in effort to convince him to charge Davenport, allegedly providing false information in the process. (Id. ¶¶ 247-48.) Ultimately, the county concluded there was not probable cause and recommended against filing charges. (Id. ¶ 251.) Reid then had the case sent to the St. George City Attorney's office. (Id.¶ 252.) The City charged Davenport with one count simple assault on C.S. on April 21, 2015. (Id. ¶ 256.)

         Davenport alleges significant misconduct during the course of the investigation, both before and after he was charged. He alleges that DSU refused to cooperate during discovery but that it ultimately was made to turn over some 2, 000 emails that showed the termination process was unfair and that the criminal investigation was tainted by, among other things, coerced witness statements and false statements made to the prosecutors by DSU administrators. (Id. ¶¶ 278-79.) Nevertheless, Davenport was briefly jailed on July 3, 2016, as a result of the allegedly improper investigation and pending charges. (Id. ¶¶ 280-81.) He stood trial for the charges on July 13 and 14, 2016. (Id. ¶ 285.) Only two students, including C.S., testified against him; one student, who had been in the class, testified that she did not remember the events and did not remember an assault occurring, while C.S.'s testimony was inconsistent with her prior statements. (Id. ¶¶ 286-88.) Davenport questioned Reid about the disappearance of video footage from the classroom, which Reid denied and for which Davenport now accuses him of giving false testimony on the witness stand. (Id. ¶¶ 291-92.) The jury ultimately returned a not guilty verdict (id. ¶ 293), prompting Williams to issue a press release acknowledging the verdict but defending DSU's decision to bring the charges and to terminate Davenport as an effort to protect the students. (Id. ¶ 294.)

         In the wake of his termination, the prosecution, and the publication of the press release, Davenport has been unable to find employment in academia. (Id. ¶¶ 296-300.) He now works as a car salesman and anticipates he is no longer employable in a university setting. (Id. ¶ 302.) He seeks damages for lost wages and benefits, attorney fees and costs, loss of future earning capacity, damage to his reputation and good name, and emotional stress and mental anguish. (Id. ¶¶ 303-306.)

         Legal Standard

         Defendants have moved the court to partially dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(6) and 8(a). Rule 12(b)(6) is an affirmative defense requiring dismissal for “failure to state a claim upon which relief can be granted, ” while Rule 8(a) speaks to the form of the allegations, requiring a pleading to feature “short and plain statement[s]” of jurisdiction, the basis for relief, and the relief sought. If a party fails to state a claim as a matter of law or fails to satisfy the procedural requirements of the pleadings, the court must dismiss those claims. When considering a motion to dismiss, the court must “accept all of the well-pleaded allegations in the complaint as true.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 510 (10th Cir. 1998). It “must liberally construe the pleadings and draw all reasonable inferences in favor of the plaintiff, ” but it is not obligated to “accept conclusory allegations.” Id.


         Davenport seeks relief on the following theories: (1) Defendants Williams, Reid, Christensen, Houser, Beatty and Jarvis violated his Fourteenth Amendment rights by depriving him of his property interest in employment without procedural due process; (2) Defendants Williams, Houser, Reid, Beatty, and Isaacson denied him his Fourteenth Amendment procedural due process protection by fabricating evidence, withholding evidence, and inadequately investigating during the assault prosecution; (3) all Defendants violated his First Amendment free speech protection by retaliating against him for exercising his right to free speech; (4) Defendants Williams, Houser, Reid, Jarvis, Christensen, Beatty, and Durham committed a Fourteenth Amendment procedural due process violation by denying his liberty interest by making stigmatizing statements about Davenport; and (5) various Defendants conspired to commit each of the alleged constitutional violations. (Amended Complaint ¶¶ 308-56, ECF No. 14.) Asserting that they are protected by qualified immunity and that the pleadings are inadequate under § 1983, all Defendants seek dismissal ...

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