United States District Court, W.D. North Carolina, Asheville Division
Cogburn, Jr., Judge
MATTER comes before the Court on a Motion to Dismiss
by Defendants Elizabeth Aspinwall and Western Carolina
University. (Doc. No. 15).
being removed as a student in the Doctor of Physical Therapy
Program (the Program) at Western Carolina University (WCU),
Plaintiff Jennifer Longo filed this action in Jackson County
Superior Court on January 21, 2019, naming as Defendants WCU
and Elizabeth Aspinwall, who was at all relevant times
WCU's Assistant Director of Counseling and Psychological
Services. On February 21, 2019, Defendants removed the action
to this Court.
filed a Motion to Dismiss on March 29, 2019. On April 11,
2019, Plaintiff filed a Motion to Amend Complaint and an
Amended Complaint. In her Amended Complaint, Plaintiff
purportedly brings the following causes of action: (1) claims
under the Americans with Disabilities Act of 1990 (ADA), 42
U.S.C. § 12131 et seq., and Section 504 of the
Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C.
§ 794, against Defendant WCU; and, (2) state law claims
of False Imprisonment, Abuse of Process, Malicious
Prosecution, and “Infliction of Mental Distress”
against Elizabeth Aspinwall, in both her individual and
April 15, 2019, the magistrate judge denied the motion to
amend as moot, as it was filed within 21 days of
Defendants' motion to dismiss, and the magistrate judge
further denied the motion to dismiss as moot, in light of the
filing of the Amended Complaint. (Doc. No. 13). On May 28,
2019, Defendants filed the pending motion to dismiss the
Amended Complaint. (Doc. No. 15). Defendants contend that
Plaintiff's claims should be dismissed under Rules
12(b)(1), 12(b)(2), and 12(b)(6) of the Federal Rules of
Civil Procedure. On June 11, 2019, Plaintiff filed a
response, and on June 18, 2019, Defendants filed a Reply.
(Doc. Nos. 17, 19). This matter is therefore ripe for
alleges in the Amended Complaint that while she was enrolled
in the undergraduate program at WCU, she was diagnosed with
an eating disorder and major depressive disorder. (Doc. No.
12 at ¶¶ 11, 14-15: Am. Compl.). In August 2016,
Plaintiff began the Program at WCU, and she finished the
semester with a 3.47 GPA. (Id. at ¶¶ 16,
19). In January 2017, after beginning her spring semester,
Plaintiff took a medical withdrawal from the Program and
began a one-month outpatient program in Virginia.
(Id. at ¶ 20).
receiving treatment, Plaintiff reenrolled in the Program in
January 2018. (Id. at ¶ 23). Before
reenrolling, Plaintiff attested “to [her] ability to
meet the essential functions of [their] physical therapy
program as described in Essential Functions and Technical
Standards of Physical Therapy.” (Doc. No. 12, Ex. A).
In February 2018, Plaintiff met with Dr. Dave Hudson,
Professor and Department Head of Physical Therapy at WCU.
(Doc. No. 12 at ¶ 24). During the meeting, Dr. Hudson
reminded Plaintiff that, before reenrolling, she had attested
that she would be able to complete all of the essential
functions of the program, which is a requirement for all
March 1, 2018, Plaintiff's father had her involuntarily
committed for three days at the Harris Regional Hospital in
Sylva, North Carolina, and for three more days at the Haywood
Regional Medical Center in Waynesville, North Carolina.
(Id. at ¶ 26). After returning to the Program,
Plaintiff attempted to make up the work she had missed while
she was committed. (Id. at ¶ 28). On March 2,
2018, Plaintiff received a letter from Dr. Hudson dismissing
her from the Program and explaining why she was being
dismissed. (Doc. No. 12, Ex. A). Dr. Hudson explained that,
upon her return to the Program, she had attested to her
“ability to meet the essential function of [the]
physical therapy program ….” (Id.).
Specifically, he noted certain behaviors that she had
exhibited since her return to the Program, including: (1)
becoming disengaged, despondent, and unable to attend class
after learning that she received a C; (2) “present[ing]
to a practical examination with wounds that [she] admitted
… were self-inflicted and related to stress”;
(3) “threatening suicide as a condition of whether or
not [she] remained in the DPT program”; and (4) without
notifying any of the faculty, missing a week of class, which
caused her to miss multiple exams and a quiz and prevented
her from turning in her assignments. (Id.). Dr.
Hudson explained that because these behaviors indicated an
inability to fulfill the responsibilities of being a physical
therapist, specifically the promotion of “the health,
vitality, and wellbeing of others, ” Plaintiff was
being dismissed from the Program. (Id.).
Plaintiff was dismissed from the Program, Elizabeth
Aspinwall, WCU's Assistant Director of Counseling and
Psychological Services completed a petition for involuntary
commitment against Plaintiff, pursuant to N.C. Gen. Stat.
§ 122C-261. (Id. at ¶ 33). A local
magistrate approved the petition, and Plaintiff was taken to
Raleigh, North Carolina, for about one week. (Id. at
¶ 34; Def.'s Ex. 1). The Petition expired after one
week, and Plaintiff was released from custody. (Id.
at ¶ 34).
STANDARD OF REVIEW
have moved for dismissal of Plaintiff's claims under Rule
12(b)(1) and Rule 12(b)(2) of the Federal Rules of Civil
Procedure based on sovereign immunity and, alternatively,
under Rule 12(b)(6) of the Federal Rules of Civil Procedure
based on failure to state a claim. When determining the
existence of subject matter jurisdiction, the Court may look
to evidence outside the pleadings without converting a Rule
12(b)(1) motion to a motion for summary judgment. See,
e.g., Evans v. B. F. Perkins Co., 166 F.3d 642,
647 (4th Cir. 1999). “When a defendant challenges
subject matter jurisdiction pursuant to Rule 12(b)(1),
‘the district court is to regard the pleadings as mere
evidence on the issue, and may consider evidence outside the
pleadings without converting the proceeding to one for
summary judgment.'” Id. (citations
omitted). The plaintiff bears the burden of proving subject
matter jurisdiction exists. Id.
Rule 12(b)(2) challenges to jurisdiction, the pleading's
allegations are merely evidence on the issue and are not
controlling. “When personal jurisdiction is properly
challenged under Rule 12(b)(2), the jurisdictional question
is to be resolved by the judge, with the burden on the
plaintiff ultimately to prove grounds for jurisdiction by a
preponderance of the ...