Nguyen v. University of St. Augustine for Health Sciences

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

LUKE NGUYEN,

Plaintiff,

vs. Case No. 3:21-cv-173-MMH-MCR

UNIVERSITY OF ST. AUGUSTINE

FOR HEALTH SCIENCES,

Defendant.

/

O R D E R

THIS CAUSE is before the Court on Defendant’s Motion for Summary

Judgment (Doc. 52; Motion), filed August 10, 2022. Plaintiff Luke Nguyen filed

a response in opposition to the Motion. See Plaintiff’s Response to Defendant’s

Motion for Summary Judgment (52) (Doc. 57; Response), filed September 9,

2022. Defendant University of St. Augustine for Health Sciences (USAHS) filed

a reply. See Defendant’s Reply to Plaintiff’s Response to Defendant’s Motion

for Summary Judgment (Doc. 58; Reply), filed September 23, 2022.

Accordingly, this matter is ripe for review.

I. Background1

In the summer of 2016, Nguyen enrolled in the accelerated Doctor of

Physical Therapy (DPT) program at the USAHS campus in St. Augustine,

Florida. See Videotaped Deposition of Luke Phuoc Nguyen (Doc. 53-7; Nguyen

Dep.) at 5. When he enrolled, Nguyen received a student handbook setting forth

USAHS’s policies. Id. At the time, he reviewed a paragraph in the handbook

informing him that he should contact the student services office to learn how to

request reasonable accommodations if needed. Id. at 6, 68. In his first

trimester, Summer 2016, Nguyen passed all of his courses. Id. at 6, 71. In Fall

2016, however, Nguyen withdrew from his courses after experiencing a severe

panic attack. Id. at 7, 71. On September 19, 2016, a mental health professional

diagnosed Nguyen with generalized anxiety disorder (GAD) and attention

deficit hyperactivity disorder (ADHD). Id. at 7–8. After Nguyen received these

diagnoses, his academic advisor Lisa Chase and the accelerated DPT program

director Jeff Rot recommended that Nguyen transfer to the “flex” DPT program.

Id. at 8. Although the flex DPT program took longer to complete, it allowed

students to take fewer classes each trimester than the accelerated program. Id.

1 Unless otherwise noted, the facts recited herein are undisputed. For the purposes of

resolving the Motion, the Court views all disputed facts and reasonable inferences in the light

most favorable to Nguyen. However, the Court notes that these facts may differ from those

ultimately proved at trial. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

The Court’s citations to page numbers in documents in the record refer to the CM-ECF-

stamped page numbers located at the top of each page, rather than a document’s internal page

numbers, if any.

at 10. Following Chase and Rot’s advice, Nguyen took a leave of absence for the

rest of the Fall trimester and transitioned to the flex DPT program in Spring

2017. Id. at 8–9, 38, 73–74. At the time, Nguyen requested no other

accommodations. Id. at 9.

In the Spring, Summer, and Fall trimesters of 2017, Nguyen passed his

classes but expressed apprehension about his timed examinations. Id. at 10–

11, 71. During Summer 2017, Nguyen told his Biomechanics professor that,

because of his GAD, he “had concerns about the amount of time that was given”

for the examination. Id. at 10–11. The professor recommended that Nguyen

practice so that he would be more confident in his knowledge. Id. at 11.

Similarly, in Fall 2017, Nguyen informed two professors that he had “concerns”

about the practical examinations in his courses. Id. These professors also

advised him to practice and study more. Id. According to Nguyen, none of the

professors referred him to the disability services office, and he did not know

that he could request an accommodation from that office. Id.

In Spring 2018, Nguyen passed his two courses with some difficulty,

earning a C+ and a C. Id. at 12, 71. One of those classes was Musculoskeletal

I, taught by David Kempfert. Id. at 12. After Nguyen failed a practical

examination in the class, Kempfert gave him a retake request form to fill out.

Id. On the form, Nguyen stated that the testing conditions “were not fair”

because of “noise” and because the professor “was leading answers to the

partner.” Id. Kempfert did not approve the request form and characterized it

as unprofessional. Id. After meeting with Kempfert and the flex DPT program

director Debra Gray, Nguyen believed that the three of them reached an

“understanding.” Id. at 12–13. Nguyen then retook the examination but failed

“because of time.” Id. at 13. After failing the retake, Nguyen told his examiner,

Margaret Wicinski, about his GAD and ADHD. Id. Wicinski advised him to

practice more. Id.

USAHS gave Nguyen approval for a second retake of the examination.

Id. at 14. Before the second retake, Nguyen asked Gray and Kempfert whether

he could use a sheet of paper and a pencil during his examination. Id. at 15.

Gray and Kempfert did not allow him to have those materials. Id.

Nevertheless, Nguyen passed the second retake and passed the course. Id. at

14. In this lawsuit, Nguyen testifies that he wanted a sheet of paper and a

pencil because of his GAD and ADHD. Id. at 15.

In the other class that Nguyen took in Spring 2018, General Therapeutic

Exercise, he also had to retake an examination. Id. at 16. Before he retook the

examination, Nguyen told his instructor, Wicinski, in an email that he was

worried about time management on the examination. Id. Although Nguyen did

not mention his GAD or ADHD in that email, he assumed that Wicinski would

connect his time management concerns to a previous conversation about his

learning disabilities. Id. Nguyen asked Wicinski whether he could have the

most time-consuming skill tested first. Id. at 16, 77–76. Wicinski replied that

Nguyen could ask the examiner to go in the order Nguyen wanted. Id. Nguyen

passed the retake. Id. at 17. After Nguyen passed the course, Wicinski told

him that she still had concerns that he lacked foundational knowledge

necessary to succeed in future classes. Id. at 17, 79–80; Declaration of Dr.

Margaret Wicinski (Doc. 53-2; Wicinski Decl.) at 2. At the time, Nguyen agreed

with the assessment. Nguyen Dep. at 17, 80. Despite Nguyen’s difficulties in

Musculoskeletal I and General Therapeutic Exercise, he did not request any

accommodations from USAHS’s disability services office in Spring 2018. Id. at

17. In Summer 2018, Nguyen passed his courses and did not request any

accommodations. Id. at 17, 72.

In Fall 2018, Nguyen passed three of his courses but failed

Musculoskeletal II Mock Clinic (Mock Clinic), taught by Wicinski. Id. at 17–18,

72. At the beginning of the trimester, Nguyen received and reviewed a syllabus

for Mock Clinic. Id. at 18–19. The syllabus for Mock Clinic said that the highest

grade that could be awarded for a retake of a practical examination was a 75%.

Id. at 19, 87. The syllabus mandated that there “is expected to be no sharing of

information about the practical exams.” Id. at 92. Like this syllabus, USAHS’s

student handbook in Fall 2018 prohibited “giving or receiving information about

the content of an exam.” Id. at 37, 144. The syllabus for Mock Clinic also

informed the students that they could request accommodations by contacting

staff in the disability services office. Id. at 19, 88. Likewise, the student

handbook stated that a student must complete the “reasonable accommodation

request form” on the online student portal to request an accommodation. Id. at

37, 145. The handbook noted that students should expect “to maintain the

standards that apply to all University students and request only the

accommodations approved by this process.” Id.

On October 27, 2018, Mock Clinic had a midterm in which students

performed a physical examination of a simulated patient (another student) and

then did written work diagnosing the patient and proposing a treatment plan.

Id. at 18, 95. Only the written work was graded. Id. at 18; Wicinski Decl. at 3.

Because only the written work was graded, USAHS’s policy did not allow

retakes of the examination. Wicinski Decl. at 3. Nguyen misunderstood an

instruction that he could not receive help from anyone during the examination.

Nguyen Dep. at 18. As a consequence, Nguyen did not inquire further of the

simulated patient while he was performing his written work. Id. Nguyen

received a 29% on the midterm. Id. at 19; Wicinski Decl. at 3. The midterm

was worth 25% of the total grade in the class. Nguyen Dep. at 19, 85; Wicinski

Decl. at 2. According to Wicinski, because of Nguyen’s midterm grade and the

grade on his unit assignments, Nguyen had to earn a “minimum final grade of

87.4% on the Mock Clinic final exam to pass the course.” Wicinski Decl. at 5.

Near the end of the trimester, Nguyen experienced another panic attack.

Nguyen Dep. at 20. On November 30, 2018, Nguyen asked Wicinski to postpone

his final examination, originally scheduled for December 1, until after he saw

his primary care physician on December 6. Id. at 21, 97–98, 102; Wicinski Decl.

at 5. Wicinski granted this request, scheduling the examination for December

8. Nguyen Dep. at 21–22, 105. On December 3, Nguyen told Wicinski that he

felt better. Id. at 21. Three days later, on December 6, Nguyen emailed

Wicinski to inform her that his doctors said that he was “okay to continue with

school” and that his psychiatrist recommended that he “explore the option of

time and a half for examination [sic] in the future.” Id. at 22, 104. Nguyen said

that he was going to research USAHS’s requirements for requesting time and a

half and discuss time and a half with his psychiatrist during a scheduled

appointment on December 10. Id.

The final examination had two parts: a practical examination of a patient

and a written portion in which the student wrote a plan of care for the patient.

Id. at 22–23, 86; Wicinski Decl. at 3. According to Wicinski, writing the plan of

care “immediately following the examination” is an essential requirement of the

course because it “mimics the expectation in the clinic.” Wicinski Decl. at 4. To

pass the final examination, a student needed to achieve at least an 80% score

on each portion of the examination. Id.; Nguyen Dep. at 86.

When Nguyen took the final examination on December 8, 2018, he scored

a 74% on the practical examination, short of the 80% required to pass. Nguyen

Dep. at 23; Wicinski Decl. at 5. Wicinski states that Nguyen asked for his score

on the practical examination immediately after completing it and explained to

Wicinski that, “if he did not pass, there was no reason to write the plan of care

because he would fail the course.”2 Wicinski Decl. at 31. After receiving his

grade on the practical examination, Nguyen had an anxiety attack. Nguyen

Dep. at 23. He informed Wicinski that he was having an anxiety attack and

wanted to speak to his advisor. Id. Wicinski declares that Nguyen “chose not

to write the Plan of Care” after learning his score on the practical examination.

Wicinski Decl. at 5. According to Wicinski, Nguyen “became emotionally upset”

and “slightly argumentative about the feedback he received from his practical.”

Id. at 31. Because of the panic attack, Nguyen cannot recall exactly what he

said to Wicinski after the first portion of the examination. Nguyen Dep. at 23.

But he testifies, “I strongly believe that I did not tell them I could not complete

the—I would not do that—because I wanted to pass the exam.” Id. at 23–24.

Because Nguyen did not complete the plan of care, Wicinski awarded him a

2 In an email dated December 11, 2018, Nguyen stated that he could not pass Mock

Clinic without passing the final examination on the first attempt. Nguyen Dep. at 107–08.

Nguyen now believes that he was incorrect at the time and that he could have passed the

course with a final examination score of 75%, the maximum score with the “penalties for the

first retake.” Id. at 27.

grade of 0% on the written portion of the final. Wicinski Decl. at 5.

Consequently, Nguyen received an F in Mock Clinic. Id.

On the week of December 9, 2018, Nguyen attempted to contact USAHS’s

disability services office. Nguyen Dep. at 24. Nguyen first went to the

administration building at the St. Augustine campus of USAHS and asked for

the disability services office. Id. The staff in the administration building sent

Nguyen to another building on campus where an employee gave Nguyen a card

for Ryan Davis, USAHS’s manager for student affairs and disability services.

Id.; Declaration of Laura Kauffman (Doc. 53-4; Kauffman Decl.) at 1. In this

role, Davis was responsible for “identifying and delivering appropriate ADA

accommodations” for students at all of USAHS’s campuses. Kauffman Decl. at

2, 6. Nguyen called Davis and left a voicemail for him on December 10, 2018.

Nguyen Dep. at 24–25. When Davis called back, Nguyen explained his

struggles in previous classes and how his professors thought he was unprepared

even though he told them about his learning disabilities and offered them proof

that he was preparing according to their advice. Id. at 25. Nguyen explained

that he would likely have a retake of his final examination in Mock Clinic and

asked whether he could get accommodations for that practical examination. Id.

Davis said he would work on it. Id. Nguyen left another voicemail for Davis on

December 10, 2018, referencing their earlier conversation and asking about the

accommodation request form. Id. at 25–26. In a December 11, 2018 email,

Davis sent Nguyen a “Reasonable Accommodation Request Form” and a related

information sheet. Id. at 26, 106–11. Nguyen filled out—but never turned in—

the accommodation request form. Id. at 28.

At some point in December 2018, Nguyen learned from another student

in Mock Clinic that Nguyen had misunderstood the directions for the midterm

examination and could have received more information from the patient. Id. at

34. As a result, Nguyen emailed Wicinski on December 18, 2018, to formally

appeal his midterm grade and to ask to complete the “class requirements” for

Mock Clinic. Id. at 30, 114–15. In the appeal, Nguyen stated that “he did not

have enough data to adequately write an effective plan of care” on the midterm

examination because he “erroneously deferred muscle length testing and

subsequent elongation tissue stress.” Id. at 114. Nguyen also referred to a

“miscommunication of expectations and procedure” that showed that his

midterm grade did not reflect his “comprehension and execution of the course

requirements.” Id. at 30, 115. Nguyen said that he “misinterpreted the testing

procedures” and did not ask questions of the patient for further relevant

information. Id. at 30, 114.

On December 21, 2018, Wicinski and Jessica Schreiner denied the appeal

of the midterm grade. Id. at 30–31, 116. Wicinski and Schreiner explained that

Nguyen had enough data to complete the midterm successfully but failed

because he made an “error in clinical reasoning” and “deferred steps that were

vital for passing the examination.” Id. at 30–31, 116. Nguyen further appealed

to Gray. Id. at 31–32. On January 11, 2019, Gray also denied the appeal and

stated that Nguyen’s grade in Mock Clinic “will stand.” Id. In his emails

appealing his midterm grade to Wicinski and Gray, Nguyen never mentioned

his ADHD or GAD. Id.

On December 18, 2018, in addition to appealing his midterm grade,

Nguyen verbally asked Wicinski and Gray if he could complete the written

portion of his final examination. Id. at 27, 29. Gray told him to wait until after

the midterm grade appeal was processed. Id. at 28. Nguyen testifies that his

request to complete the final examination included the understanding that

completing the examination allowed the opportunity for a retake. Id. at 39. But

he did not specifically ask for a “retake” because he never completed the first

attempt. Id. at 28, 39. At the time, the student handbook said that, to request

a retake of a practical examination, “[i]t is the student’s responsibility to contact

the faculty instructor within one to two business days of failing the exam.” Id.

at 38, 222. In addition, the student handbook required students to “submit a

written plan of remediation to the faculty instructor that will effectively prepare

the student for their first retake practical examination.” Id. at 222. Nguyen

never submitted a remediation plan for Wicinski’s approval. Id. at 28; Wicinski

Decl. at 6. In Nguyen’s experience, typically USAHS or the professor would

reach out to schedule a retake. Nguyen Dep. at 27. Because of USAHS’s retake

policy, the maximum score that Nguyen could have received on a retake of the

final examination was a 75%. Id. at 38, 222; Wicinski Decl. at 5. Therefore,

according to Wicinski, even if Nguyen had retaken the final examination and

gotten a 75%, he could only have gotten a 62% in the course because of his low

midterm grade and would not have passed the course. Wicinski Decl. at 6.

The student handbook said that a “student will be dismissed from the

program if an F is received in any course.” Nguyen Dep. at 38, 153, 225. In

accordance with that policy, on December 21, 2018, USAHS dismissed Nguyen

from the flex DPT program because of his grade in Mock Clinic. Id. at 32–33,

117. Nguyen appealed his dismissal. Id. at 33, 38.

On January 10, 2019, the academic appeals committee met to consider

Nguyen’s appeal. Id. at 34. The chair of the committee, Lindsay Perry states

that, at the meeting, Nguyen admitted that he “chose not to complete the plan

of care due to not having enough points to pass the course.” Declaration of

Lindsay Perry (Doc. 53-8; Perry Decl.) at 2. Nguyen told the committee about

his ongoing discussions with Davis to try to get accommodations for his

disabilities. Nguyen Dep. at 35. But Nguyen was informed that “he would not

be allowed to have [accommodations] on [practical examinations] due to needing

to replicate real-life experiences.” Perry Decl. at 9; see also Nguyen Dep. at 28–

29 (explaining that Gray told Nguyen that no additional time would be granted

for practical examinations). In addition, Nguyen reported to the committee that

his midterm grade appeal had been denied. Nguyen Dep. at 34. Nguyen

explained that he had appealed after another student told him that he could

have gotten more information from his partner. Id. at 34, 54. A committee

member said that talking to another student about the examination was a

violation of academic integrity. Perry Decl. at 5. Nguyen admitted that he

knew that discussing the practical examination with another student was

wrong. Id. at 9.

The committee unanimously denied Nguyen’s appeal and notified him on

January 14, 2019. Nguyen Dep. at 35, 118–19; Perry Decl. at 2–3. The

committee based its decision on several factors:

 Concerns based on display of decreased self-awareness,

professional integrity, and academic integrity based on

behaviors related to this dismissal.

 Downward trend in academic performance from term to

term demonstrating a pattern of being provided with

information and advice but not being actionable to make

meaningful change in performance.

 Concern for emotional dysregulation as reported in the

academic appeal report of argumentative behavior, thus

demonstrating unprofessionalism.

 Lack of immediate accepting of responsibility of his own

performance leading to dismissal, rather described factors

that contributed to the experience.

 Lack of seeking clarification when misunderstanding

directions, thus making decisions on assumptions, thus

demonstrating lack of proactive and resourceful behaviors.

Perry Decl. at 5–6. Nguyen did not attempt to appeal the committee’s decision

to the president of USAHS until February 11, 2019. Nguyen Dep. at 36.

USAHS denied that appeal as untimely. Id. at 37.

Nguyen initiated this action on February 19, 2021, by filing Plaintiff’s

Complaint for Violations of Title III of the Americans with Disabilities Act,

Section 504 of the Rehabilitation Act, Breach of Contract, Negligence,

Defamation (Doc. 1; Complaint). In Count I of the Complaint, Nguyen alleges

that USAHS violated Title III of the Americans with Disabilities Act (ADA), 42

U.S.C. § 12101 et seq., because USAHS was aware of Nguyen’s disability after

November 30, 2018, but did not provide Nguyen with reasonable

accommodations. Complaint ¶¶ 25–26. Nguyen asserts that “[a]s a result of

Defendants’ failure to implement reasonable accommodations,” USAHS

violated the ADA by

a) Failing to recognize that Plaintiff had a disability due to ADHD

and GAD.

b) Failing to enable Plaintiff to file a reasonable accommodation

request in a timely manner.

c) Failing to provide a disability accommodation coordinator for

the St. Augustine campus of USA.

d) Failing to provide Plaintiff with accommodations after learning

of Plaintiff’s disability.

e) Denying Plaintiff the equal/same opportunity to receive an

education as those without a disability.

Id. ¶ 27. In addition, Nguyen alleges that USAHS discriminated “by failing to

provide a full and equal opportunity to enjoy the services” USAHS provides. Id.

¶ 28. In Count II of the Complaint, Nguyen alleges that USAHS violated section

504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, by failing “to make

reasonable accommodations that meet Plaintiff’s needs.” Complaint ¶ 38–39.

In Counts III, IV, and V, Nguyen asserts state law claims for breach of contract,

negligence, and defamation, respectively. See id. ¶¶ 41–59.

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure (Rule(s)), “[t]he

court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” Rule 56(a). The record to be considered on a motion for

summary judgment may include “depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other

materials.” Rule 56(c)(1)(A).3 An issue is genuine when the evidence is such

3 Rule 56 was revised in 2010 “to improve the procedures for presenting and deciding

summary-judgment motions.” Rule 56 Advisory Committee’s Note 2010 Amends.

The standard for granting summary judgment remains unchanged. The

language of subdivision (a) continues to require that there be no genuine

dispute as to any material fact and that the movant be entitled to judgment as

a matter of law. The amendments will not affect continuing development of

the decisional law construing and applying these phrases.

Id. “[A]lthough the interpretations in the advisory committee[’s] notes are not binding, they

are highly persuasive.” Campbell v. Shinseki, 546 F. App’x 874, 879 n.3 (11th Cir. 2013).

Thus, case law construing the former Rule 56 standard of review remains viable and is

applicable here.

that a reasonable jury could return a verdict in favor of the nonmovant. See

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting

Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A]

mere scintilla of evidence in support of the non-moving party’s position is

insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Est. of

Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no genuine

issues of material fact to be determined at trial. See Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged

its burden, the non-moving party must then go beyond the pleadings, and by its

own affidavits, or by depositions, answers to interrogatories, and admissions on

file, designate specific facts showing that there is a genuine issue for trial.”

Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593–94 (11th Cir. 1995)

(internal citations and quotation marks omitted). Substantive law determines

the materiality of facts, and “[o]nly disputes over facts that might affect the

outcome of the suit under the governing law will properly preclude the entry of

In citing to Campbell, the Court notes that it does not rely on unpublished opinions as

binding precedent; however, they may be cited in this Order when the Court finds them

persuasive on a particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir.

2022); see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

summary judgment.” Anderson, 477 U.S. at 248; see also McCormick v. City of

Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (“The mere existence of

some factual dispute will not defeat summary judgment unless the factual

dispute is material to an issue affecting the outcome of the case.”). In

determining whether summary judgment is appropriate, a court “must view all

evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,

1578 (11th Cir. 1994)).

III. Discussion

Having carefully reviewed the arguments, record, and applicable law, the

Court finds that USAHS’s Motion is due to be granted as to Nguyen’s federal

claims.

A. Disability Discrimination

1. Claims in the Complaint

As an initial matter, the Court must determine what types of ADA and

Rehabilitation Act claims Nguyen presents in his Complaint. A discrimination

claim under Title III of the ADA or under the Rehabilitation Act “can be based

on either a conventional ‘disparate treatment’ theory, or a theory that the

defendant failed to make ‘reasonable accommodations,’ or both.” Forbes v. St.

Thomas Univ., Inc., 768 F. Supp. 2d 1222, 1227 (S.D. Fla. 2010);4 see Schwarz

v. City of Treasure Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008). USAHS

asserts that it is “difficult to determine from the allegations in the Complaint if

Nguyen alleges both disparate treatment and failure to accommodate claims.”

Motion at 10.

Although the Court agrees that Nguyen’s claims could be clearer, the

Court concludes that Nguyen asserts only a failure to provide reasonable

accommodations. In Count I of the Complaint, Nguyen alleges that USAHS

violated Title III of the ADA by not providing him with “reasonable

accommodations” and that “[a]s a result of Defendants’ failure to implement

reasonable accommodations,” USAHS violated the ADA. Complaint ¶¶ 26–27.

While Nguyen asserts that USAHS denied him the “full and equal opportunity

to enjoy the services” USAHS provides, id. ¶ 28, the previous paragraph

expressly alleges that “[d]enying Plaintiff the equal/same opportunity to receive

an education as those without a disability” is a result of the alleged failure “to

implement reasonable accommodations,” id. ¶ 27. Similarly, in Count II,

Nguyen alleges that USAHS violated the Rehabilitation Act by failing “to make

reasonable accommodations that meet Plaintiff’s needs.” Id. ¶ 38. Moreover,

4 The Court notes that although decisions of other district courts are not binding, they

may be cited as persuasive authority. See Stone v. First Union Corp., 371 F.3d 1305, 1310

(11th Cir. 2004) (noting that, “[a]lthough a district court would not be bound to follow any

other district court’s determination, the decision would have significant persuasive effects”).

in Nguyen’s Response, he focuses his arguments on the alleged failure to

provide reasonable accommodations. See Response at 11–14. Nguyen’s sole

argument about intentional discrimination is that USAHS was deliberately

indifferent in failing to provide accommodations. See id. at 14–15. Therefore,

the Court similarly focuses its discussion on whether USAHS violated Title III

and the Rehabilitation Act by failing to provide reasonable accommodations.5

2. Parties’ Arguments

USAHS argues that it had no duty to provide reasonable accommodations

to Nguyen because he was not a “qualified individual” for the purposes of the

DPT program based on his academic performance and unprofessional

behaviors. Motion at 14–15. USAHS also contends that it had no duty to

affirmatively investigate whether Nguyen needed accommodations because he

never requested accommodations before failing Mock Clinic. Id. at 17; Reply at

2–3. Moreover, USAHS asserts that completing the written portion of the Mock

Clinic final is not a reasonable accommodation because it would require USAHS

to substantially modify its program of study and lower its essential standards.

5 If Nguyen were making a disparate treatment claim about his dismissal from the

program, summary judgment would be due to be granted in USAHS’s favor on that claim.

Nguyen has pointed to no evidence suggesting that USAHS’s proffered reasons for dismissing

him and for refusing to readmit him were a pretext for discrimination. Zainulabeddin v. Univ.

of S. Fla. Bd. of Trustees, 749 F. App’x 776, 783 (11th Cir. 2018) (per curiam) (“Zainulabeddin

has not shown that USF’s legitimate, non-discriminatory and non-retaliatory reason for her

dismissal—poor academic performance—was actually a smokescreen for disability

discrimination or retaliation.”).

Motion at 18–19. According to USAHS, it had no duty to grant retroactive

accommodations after Nguyen had already failed the examination. Reply at 4.

Finally, USAHS argues that it always had a disability services coordinator for

the St. Augustine campus and that Nguyen’s failure to use USAHS’s system for

requesting accommodations is fatal to his claim. Motion at 20; Reply at 4–6.

In his Response, Nguyen asserts that summary judgment is

inappropriate because there is a dispute of fact as to whether USAHS ignored

Nguyen’s disabilities by failing to advise him that he was required to go to the

disability services office to request accommodations. Response at 11–12.

Nguyen represents that he did not know about the disability services office and

that he relied on USAHS “to advise him of what course of action to take with

his medical disability diagnoses.” Id. at 12. Nguyen argues that USAHS denied

his “repeated[]” requests “to be given additional time to take exams” and denied

him “a plan for implementing learning and passing based on Plaintiff’s

disabilities.” Id. at 13–14. Nguyen also maintains that his request for a sheet

of paper and pencil during examinations was denied. Id. at 13. Nguyen argues

that he can show intentional discrimination to obtain compensatory damages

because USAHS denied him “an accommodation of more time [and] use of paper

and pencil” and because USAHS’s professors and administrators failed to tell

Nguyen that he was required to go to the disability services office to request an

accommodation. Id. at 14–15. Finally, Nguyen asserts that USAHS’s “policies

and procedures for ADA compliance are deficient and contributed to the

miscommunications between Plaintiff, the administration and disability

services.” Id. at 15.

3. Applicable Law

Title III of the ADA “prohibits discrimination by a ‘place of public

accommodation,’ which is a private entity that offers commercial services to the

public.” A.L. ex rel. D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d

1270, 1289 (11th Cir. 2018) (quoting 42 U.S.C. § 12182(a)).6 Similarly, the

Rehabilitation Act requires that “[n]o otherwise qualified individual with a

disability in the United States . . . shall, solely by reason of her or his disability,

be excluded from the participation in, be denied the benefits of, or be subjected

to discrimination under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a). The Eleventh Circuit has found that claims

under Title III of the ADA and the Rehabilitation Act “are governed by the same

substantive standard of liability.” Silva v. Baptist Health S. Fla., Inc., 856 F.3d

6 In the Response, Nguyen cites to section 309 of the ADA, which governs

“examinations or courses related to applications, licensing, certification, or credentialing for

secondary or postsecondary education, professional, or trade purposes.” 42 U.S.C. § 12189;

see Response at 12. Section 309 may implicate a different legal standard from the rest of Title

III. See Albert v. Ass’n of Certified Anti-Money Laundering Specialists, LLC, No. 21-12333,

2022 WL 1415867, at *2 (11th Cir. May 4, 2022) (per curiam). While USAHS plainly is a

“postgraduate private school” covered by the main provisions of Title III, 42 U.S.C. §

12181(7)(J), the Court questions whether USAHS’s program meets the specific definition in

section 309. For that reason and because Nguyen does not specifically bring his claim under

section 309 in the Complaint, the Court will analyze Nguyen’s claim under the normal Title

III standards.

824, 830–31 (11th Cir. 2017).7 “To prevail, a disabled person must prove that

he . . . was excluded from participation in or denied the benefits of the [school’s]

services, programs, or activities, or otherwise was discriminated against on

account of [his] disability.”8 Id.

Under Title III, discrimination includes “a failure to make reasonable

modifications in policies, practices, or procedures, when such modifications are

necessary to afford such goods, services, facilities, privileges, advantages, or

accommodations to individuals with disabilities.” 42 U.S.C. § 12182(b)(2)(A)(ii).

However, this failure to make modifications is not discriminatory if the “entity

can demonstrate that making such modifications would fundamentally alter the

nature of such goods, services, facilities, privileges, advantages, or

accommodations.” Id. Accordingly, it is the plaintiff’s burden to prove “not only

that he is disabled but also that his requested modification is both ‘reasonable’

and ‘necessary.’” A.L., 900 F.3d at 1292. The defendant “bears the burden of

proof on the fundamental alteration inquiry.” Id.

7 Although Title III of the ADA and the Rehabilitation Act have important differences,

those differences are not relevant here. See Schwarz, 544 F.3d at 1212 n.6. Compare A.L.,

900 F.3d at 1290 (“Title III provides for only injunctive relief.”), with Silva, 856 F.3d at 831

(noting in a case with a Rehabilitation Act claim that a plaintiff could recover damages if the

defendant was “deliberately indifferent to her federally protected rights”).

8 For the purposes of resolving the Motion, USAHS does not dispute that Nguyen is

disabled. See Motion at 10 n.74. The parties also do not dispute that USAHS is a “place of

public accommodation” covered by the ADA and a “program or activity receiving Federal

financial assistance” under the Rehabilitation Act. 42 U.S.C. § 12181(7)(J); 29 U.S.C. §

794(b)(2)(A).

Similarly, under the Rehabilitation Act, “[i]n certain circumstances, an

educational institution’s refusal to accommodate the needs of a disabled person

amounts to discrimination against that person because of his disability.”

Goldberg v. Fla. Int’l Univ., 838 F. App’x 487, 492 (11th Cir. 2020) (per curiam);

J.A.M. v. Nova Se. Univ., Inc., 646 F. App’x 921, 926 (11th Cir. 2016) (per

curiam). But, like Title III, “the Rehabilitation Act ‘imposes no requirement

upon an educational institution to lower or to effect substantial modifications

of standards to accommodate a handicapped person.’” Goldberg, 838 F. App’x

at 492 (quoting Se. Cmty. Coll. v. Davis, 442 U.S. 397, 413 (1979)); J.A.M., 646

F. App’x at 926 (quoting Davis, 442 U.S. at 413). Indeed, a “professional school’s

unwillingness to make ‘major adjustments’ to its program to accommodate the

disabled does not constitute disability discrimination.” Goldberg, 838 F. App’x

at 492; see J.A.M., 646 F. App’x at 926–27.

Notably, under both statutes, the “plaintiff bears the burden of

identifying a reasonable accommodation.” Goldberg, 838 F. App’x at 492.

Moreover, “the duty to provide a reasonable accommodation under the

Rehabilitation Act and ADA is not triggered ‘unless a specific demand for an

accommodation has been made.’” Id. (quoting Gaston v. Bellingrath Gardens &

Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999)); see Perez ex rel. F.V. v. Lake

Cnty. Rowing Ass’n, No. 21-10352, 2021 WL 4545090, at *4 (11th Cir. Oct. 5,

2021) (per curiam); Zainulabeddin, 749 F. App’x at 783–84.

4. Analysis

Nguyen asserts that USAHS should have given him the accommodations

of (1) additional time on examinations and (2) a blank sheet of paper and a

pencil during practical examinations. Nguyen Dep. at 43–44; Response at 15.

With regard to additional time on examinations, the Court concludes that this

claim fails because Nguyen never requested that accommodation. Although

Nguyen argues that he “repeatedly” asked his professors for additional time,

Response at 13, the record does not support that assertion. Nguyen admits that,

before December 6, 2018, he had not spoken to anyone at USAHS about getting

time and a half on his examinations. Nguyen Dep. at 22. During his program

at USAHS, Nguyen informed his professors of his concerns about time

management on examinations. Id. at 10–11, 13, 16. Sometimes he linked that

concern to his diagnoses. Id. at 10–11, 13. Sometimes he did not. Id. at 11, 16.

Although he mentioned these concerns, Nguyen never asked for additional

time.9 Nguyen seems to complain that his professors responded by giving him

advice on how to study and practice so that he could get faster. Id. at 11, 13.

However, when Nguyen received this advice, he usually did not express that

more time would be necessary, nor did he try to explain to his professors that

9 For one examination, Nguyen asked whether he could have the most time-consuming

skill tested first. Id. at 16, 76–77. Wicinski replied that Nguyen could ask the examiner to go

in the order Nguyen wanted. Id. Nguyen has not produced evidence about whether he asked

his examiner for a certain testing order and, if so, whether the request was granted.

the need for more practice was not the problem. Id. On one occasion in Spring

2018, Nguyen told Wicinski that he was already doing the practice strategies

that she suggested. Id. at 13–14. However, in that conversation, Nguyen never

suggested that he needed anything other than academic advice. See id.

Even on December 6, 2018, Nguyen did not ask for additional time on his

Mock Clinic final. In his email to Wicinski on December 6, Nguyen said that

his psychiatrist recommended that he “explore the option of time and a half for

examination [sic] in the future.” Id. at 22, 104. Nguyen told Wicinski that he

was going to discuss time and a half with his psychiatrist during a scheduled

appointment on December 10, two days after the final examination scheduled

for December 8. Id. Therefore, the statement that Nguyen should “explore the

option” was not an affirmative request for an accommodation on the December

8 examination. See Zainulabeddin, 749 F. App’x at 778–79, 783 n.7

(“Zainulabeddin’s earlier question to Dr. Specter about taking a leave of absence

cannot reasonably be construed as a request for an accommodation because she

did not clearly request a leave of absence and did not feel that she needed a

leave of absence at that time.”). Because Nguyen never requested the

accommodation of extra time, USAHS had no duty to provide him with it. See

Goldberg, 838 F. App’x at 492; Perez, 2021 WL 4545090, at *4.

Nguyen also asserts that USAHS wrongfully denied his request in Spring

2018 for a paper and pencil during practical examinations. Response at 5, 15.

First, the Court finds that this accommodation is not properly before the Court

because in the Complaint Nguyen does not allege the denial of this

accommodation or allege any wrongdoing before Fall 2018. See Goldberg, 838

F. App’x at 492 (“As an initial matter, while his brief lists numerous requests

and denials that occurred throughout his time at the medical school, his

complaint alleged only two . . . .” (footnote omitted)). Second, Nguyen presents

no evidence that he told Gray and Kempfert that he wanted the materials

because of his disabilities. See Nguyen Dep. at 15. Third, Nguyen has not

pointed to evidence suggesting that the proposed accommodation was

necessary, especially because Nguyen passed Musculoskeletal I without those

materials and because Nguyen never again asked for them. Consequently, the

Court concludes that Nguyen has presented no evidence that USAHS

wrongfully denied his requested accommodations.

Nguyen suggests that USAHS had a duty to investigate whether he

needed accommodations based on its knowledge of his diagnoses. See Response

at 11–12. To the extent Nguyen makes this assertion, it is unavailing under

the facts here.10 Nguyen “confuses the party upon whose burden it rests to

10 Nguyen cites to cases in the primary and secondary special education context to

argue that USAHS ignored Nguyen and denied him a “plan for implementing learning and

passing based on Plaintiff’s disabilities.” Id. at 11–13. These cases are inapplicable to

Nguyen’s claim because the Rehabilitation Act “has taken on a unique meaning in the special

education context” where federal regulations require public elementary and secondary schools

to “identify and locate” disabled students and evaluate students “who need or are suspected

to need” special education services. Mrs. H. v. Montgomery Cnty. Bd. of Educ., 784 F. Supp.

investigate and provide options for accommodations.” Perez, 2021 WL 4545090,

at *4. USAHS had no obligation to provide a reasonable accommodation until

Nguyen met his “burden of identifying an accommodation and demonstrating

that it is reasonable.” Id. (quoting Frazier-White v. Gee, 818 F.3d 1249, 1255–

56 (11th Cir. 2016)); see Goldberg, 838 F. App’x at 492 n.2 (“Included among

these ‘denials’ are multiple accommodations that Goldberg indisputably did not

request, but that he now argues the medical school should have known he

needed. Of course, the duty to provide reasonable accommodations does not

arise until a specific request is made.”).

Nguyen argues that his professors should have told him that he needed

to make an accommodation request through USAHS’s disability services office.

Response at 12. However, the undisputed evidence is that USAHS informed

Nguyen that he was required to ask for accommodations through the disability

services office. When he enrolled, Nguyen received a student handbook with

USAHS’s policies regarding students. Nguyen Dep. at 5. Nguyen reviewed a

paragraph in the handbook informing him that he should contact the student

services office to learn how to request reasonable accommodations if needed. Id.

at 6. The student handbook available to Nguyen in Fall 2018 stated that a

2d 1247, 1260, 1262 (M.D. Ala. 2011) (quoting 34 C.F.R. § 104.32); see also J.S.R. by Childs v.

Dale Cnty. Bd. of Educ., No. 1:13-CV-582-WKW, 2015 WL 5692804, at *10 (M.D. Ala. Sept.

28, 2015) (noting in a special education case that the same standards apply in Rehabilitation

Act and Title II ADA cases). Nguyen has not demonstrated that this “unique” meaning applies

to him, an adult plaintiff in a professional degree program.

student must complete the “reasonable accommodation request form” on the

online student portal to request an accommodation. Id. at 37, 145. The

handbook also said that students should expect “to maintain the standards that

apply to all University students and request only the accommodations approved

by this process.” Id. In addition, in the syllabus for Mock Clinic in Fall 2018,

Wicinski informed the students that they could request accommodations by

contacting staff in the disability services office. Id. at 18–19, 88. Nguyen

reviewed the syllabus when he received it. Id. at 19. Indeed, on the week of

December 9, 2018, when Nguyen asked for the disability services office, USAHS

staff gave Nguyen the contact information for the disability services officer,

Davis. Id. at 24; Kauffman Decl. at 1. Nguyen then spoke with Davis the next

day. Nguyen Dep. at 24–25. Thus, to the extent that Nguyen relied on USAHS

“to advise him of what course of action to take with his medical disability

diagnoses,” Response at 12, the Court concludes that USAHS did advise him on

how to request accommodations. See Chenari v. George Washington Univ., 847

F.3d 740, 748–49 (D.C. Cir. 2017) (concluding that the defendant University

“did offer Chenari an accommodation” when “the University not only twice

offered Chenari counseling, but also, through its Disability Office and that

office’s website, offered all students a procedure for obtaining any reasonable

accommodation they might need”).

The Court also finds that Nguyen has not pointed to evidence that he was

entitled to accommodations after failing his Mock Clinic class. First, Nguyen

asked for his midterm grade in Mock Clinic to be changed. Nguyen Dep. at 30.

But Nguyen did not fail his midterm because of his disability. On the midterm

examination, Nguyen admits he failed because he misunderstood the

instructions and because he decided not to perform certain procedures after

making an error in clinical judgment. Id. at 18, 30–31, 114–16. Therefore,

USAHS had no obligation to provide him another chance. See Ellis v.

Morehouse Sch. of Med., 925 F. Supp. 1529, 1547 (N.D. Ga. 1996) (finding that

the defendant “had no responsibility to reasonably accommodate” the plaintiff’s

performance problems when the problems “were not related” to the plaintiff’s

disability); cf. Siefken v. Village of Arlington Heights, 65 F.3d 664, 666–67 (7th

Cir. 1995) (finding in an ADA Title I case that a “second chance” is not a

required accommodation).

Second, Nguyen asked to complete his final examination in Mock Clinic.

Nguyen Dep. at 27, 29. However, USAHS has produced unrebutted evidence

that allowing Nguyen to complete the second portion of the final examination

weeks later would be a fundamental alteration of the academic program

because the lengthy delay would not simulate conditions in clinical practice.

See Wicinski Decl. at 4. USAHS had no duty to implement an accommodation

that would fundamentally alter the program. See Goldberg, 838 F. App’x at

492; J.A.M., 646 F. App’x at 925–27.

Third, while Nguyen now believes that he should have been allowed to

retake the final examination, Nguyen Dep. at 38–39, he never asked to retake

the final examination and did not follow the school’s process for requesting a

retake. Id. at 28, 39; Wicinski Decl. at 6. Because Nguyen did not ask for this

accommodation, USAHS was not required to give it to him. See Goldberg, 838

F. App’x at 492; Perez, 2021 WL 4545090, at *4. Moreover, Nguyen could not

have passed the course by retaking his final examination because of the

mandatory limit on the grade of a retaken examination. See Wicinski Decl. at

6; Nguyen Dep. at 38, 222. As such, retaking the final examination was not a

reasonable accommodation.

Fourth, Nguyen asked to be readmitted to the DPT program. Nguyen

Dep. at 33, 38. Nguyen has presented no evidence to rebut the substance of any

of the several reasons that the academic appeals committee gave for not

readmitting him. Perry Decl. at 5–6. Because Nguyen no longer met the

academic and professional requirements for the DPT program, allowing him to

continue in the program would not be a reasonable accommodation. The ADA

and the Rehabilitation Act do not require USAHS to fundamentally alter its

program to accommodate Nguyen. See Goldberg, 838 F. App’x at 493; J.A.M.,

646 F. App’x at 925–27; Forbes, 768 F. Supp. 2d at 1232–33.

In sum, Nguyen has not identified any evidence raising an inference that

USAHS wrongfully failed to provide reasonable accommodations. Thus, the

Court finds that USAHS’s Motion is due to be granted as to Counts I and II.

B. State Law Claims

The Court must next consider whether to continue to exercise

supplemental jurisdiction over Nguyen’s state law claims for breach of contract,

negligence, and defamation in Counts III–V. At the time the instant case was

filed, the Court had original jurisdiction over the federal claims, see 28 U.S.C.

§ 1331, as well as supplemental jurisdiction over Nguyen’s state law claims

pursuant to 28 U.S.C. § 1367(a). See United Mine Workers v. Gibbs, 383 U.S.

715, 725 (1966). However, § 1367(c)(3) gives a court discretion to dismiss or

remand to state court claims before it on the basis of supplemental jurisdiction

if “the district court has dismissed all claims over which it has original

jurisdiction.” 28 U.S.C. § 1367(c)(3). Indeed, the Eleventh Circuit has held that

a district court may properly decline to exercise jurisdiction over supplemental

state law claims when the federal claims over which the Court had original

jurisdiction are dismissed on a motion for summary judgment, as is the case

here. See Murphy v. Fla. Keys Elec. Co-op Ass’n, Inc., 329 F.3d 1311, 1320 (11th

Cir. 2003) (affirming summary judgment on defendant’s contribution claim

invoking admiralty jurisdiction, and affirming dismissal of third-party

defendant’s state law counterclaim under 28 U.S.C. § 1367(c)); Graham v. State

Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999) (“If no federal claim

survives summary judgment, the court sees no reason why the other claims

should not be dismissed or remanded pursuant to 28 U.S.C. § 1367(c)(3).”);

Eubanks v. Gerwen, 40 F.3d 1157, 1162 (11th Cir. 1994) (stating that since the

“federal claims [had] been disposed of rather early on at the summary judgment

phase[,] . . . comity suggests that the remaining state law malicious prosecution

claim should be heard in state court”); see also Maschmeier v. Scott, 508 F.

Supp. 2d 1180, 1185–86 (M.D. Fla. 2007) (declining to exercise supplemental

jurisdiction over the plaintiff’s state law claim after granting summary

judgment in favor of the defendant on the plaintiff’s federal claims).

In deciding whether to exercise supplemental jurisdiction over state law

claims, district courts consider “the circumstances of the particular case, the

nature of the state law claims, the character of the governing state law, and the

relationship between the state and federal claims,” as well as “the values of

judicial economy, convenience, fairness, and comity.” City of Chicago v. Int’l

Coll. of Surgeons, 522 U.S. 156, 173 (1997) (internal quotations omitted) (citing

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). “[W]hen the balance

of these factors indicates that a case properly belongs in state court, as when

the federal-law claims have dropped out of the lawsuit in its early stages and

only state-law claims remain, the federal court should decline the exercise of

jurisdiction by dismissing the case without prejudice.” Cohill, 484 U.S. at 350

(footnote omitted) (citing Gibbs, 383 U.S. at 726–27); Gibbs, 383 U.S. at 726

(“Certainly, if the federal claims are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state claims should be dismissed as

well.”); see also Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir. 2004)

(stating that the Eleventh Circuit has “encouraged district courts to dismiss any

remaining state claims when . . . the federal claims have been dismissed prior

to trial” (citing L.A. Draper & Son v. Wheelabrator-Frye, Inc., 735 F.2d 414, 428

(11th Cir. 1984))). Notably, the Supreme Court’s directive in Cohill concerning

when a district court should decline to continue to exercise supplemental

jurisdiction did not “‘establish a mandatory rule to be applied inflexibly in all

cases,’” but “it did establish a general rule to be applied in all but extraordinary

cases.” Carr v. Tatangelo, 156 F. Supp. 2d 1369, 1380 (M.D. Ga. 2001) (citing

Cohill, 484 U.S. at 350 n.7), aff’d, 338 F.3d 1259 (11th Cir. 2003). Moreover,

because “[s]tate courts, not federal courts, should be the final arbiters of state

law,” dismissal of state law claims is strongly encouraged when federal claims

are dismissed prior to trial. Baggett v. First Nat’l Bank of Gainesville, 117 F.3d

1342, 1353 (11th Cir. 1997).

Here, the Court finds that judicial economy and convenience would not be

served by retaining jurisdiction over Nguyen’s state law claims. The Court has

concluded that summary judgment is due to be granted in favor of USAHS on

Nguyen’s federal claims. What remains are uniquely state law claims that are

best addressed by the state courts. When, as here, a plaintiff’s federal claims

are eliminated prior to trial, district courts are encouraged “to dismiss any

remaining state claims.” Murphy v. City of Aventura, 383 F. App’x 915, 919

(11th Cir. 2010) (citing Raney, 370 F.3d at 1089) (affirming dismissal of state

law claims following entry of summary judgment against plaintiff on the federal

employment law claims, and noting that the court, the Eleventh Circuit,

encourages district courts to take such action); see also Cohill, 484 U.S. at 350

n.7 (“[I]n the usual case in which all federal-law claims are eliminated before

trial, the balance of factors to be considered under the pendent jurisdiction

doctrine—judicial economy, convenience, fairness, and comity—will point

toward declining to exercise jurisdiction over the remaining state-law claims.”).

Therefore, the Court declines to continue to exercise supplemental jurisdiction

over Nguyen’s claims in Counts III–V.11 Those counts are due to be dismissed

without prejudice.

11 The Court notes that Nguyen will suffer no harm from the Court’s decision to decline

supplemental jurisdiction because federal law provides for the tolling of the state limitations

period while a state claim is pending in federal court. Specifically, 28 U.S.C. § 1367(d) provides

that:

[t]he period of limitations for any claim asserted under subsection (a), and for

any other claim in the same action that is voluntarily dismissed at the same

time as or after the dismissal of the claim under subsection (a), shall be tolled

while the claim is pending and for a period of 30 days after it is dismissed

unless State law provides for a longer tolling period.

As such, even if the statute of limitations has otherwise run on Nguyen’s state law claims,

Nguyen has at least thirty days to refile his claims in state court. See Dukes v. Georgia, 212

IV. Conclusion

The Court will grant summary judgment in favor of USAHS and against

Nguyen on Counts I and II of the Complaint. The Court declines to continue to

exercise supplemental jurisdiction over the state law claims in Counts III–V.

Accordingly, it is

ORDERED:

1. Defendant’s Motion for Summary Judgment (Doc. 52) is

GRANTED, in part, and DENIED, in part.

A. The Motion is GRANTED with respect to Counts I and II,

and the Clerk of the Court is directed to enter JUDGMENT

in favor of Defendant and against Plaintiff as to these counts.

B. The Motion is DENIED as to Counts III–V. In its discretion

under 28 U.S.C. § 1367(c), the Court declines to continue to

exercise jurisdiction over Plaintiff’s claims in Counts III–V,

and Counts III–V are DISMISSED without prejudice to

Plaintiff refiling these claims in state court if he so chooses.

F. App’x 916, 917–18 (11th Cir. 2006); Dusek v. JPMorgan Chase & Co., 132 F. Supp. 3d 1330,

1354 n.18 (M.D. Fla. 2015).

2. The Clerk of the Court is further directed to terminate any

remaining pending motions and deadlines as moot and close the

file.

DONE AND ORDERED in Jacksonville, Florida, on March 6, 20238.

MARCIA MORALES HOWARD

United States District Judge

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