# Longo v. Aspinwall

> District Court, W.D. North Carolina · July 17, 2019

URL: https://www.frixlaw.com/law-library/cases/10254737

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** July 17, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:19-cv-58-MOC-WCM

JENNIFER LONGO, )
)
Plaintiff, )
)
vs. ) ORDER
)
ELIZABETH ASPINWALL, individually and in )
her official capacity as an employee of Western )
Carolina University, and WESTERN )
NORTH CAROLINA UNIVERSITY, )
)
Defendants. )
__________________________________________)

THIS MATTER comes before the Court on a Motion to Dismiss by Defendants
Elizabeth Aspinwall and Western Carolina University. (Doc. No. 15).
I. PROCEDURAL BACKGROUND
After 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.
Defendants 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
1
claims of False Imprisonment, Abuse of Process, Malicious Prosecution, and “Infliction of
Mental Distress” against Elizabeth Aspinwall, in both her individual and official capacities.
On 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 disposition.
II. FACTUAL BACKGROUND
Plaintiff 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).
After 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
2
she would be able to complete all of the essential functions of the program, which is a
requirement for all students. (Id.).
On 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.).
After 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
3
one week. (Id. at ¶ 34; Def.’s Ex. 1).1 The Petition expired after one week, and Plaintiff was
released from custody. (Id. at ¶ 34).
III. STANDARD OF REVIEW
Defendants 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.
For 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
evidence.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir.
2003).
Federal Rule of Civil Procedure 12(b)(6) provides that a motion may be dismissed for
failure to state a claim upon which relief can be granted. A motion to dismiss pursuant to Rule

1 As the magistrate’s order was referenced by Plaintiff’s complaint, the Court takes judicial
notice of this document.
4
12(b)(6) tests the sufficiency of the complaint without resolving contests of fact or the merits of a
claim. Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992), cert. denied, 510
U.S. 828 (1993). Thus, the Rule 12(b)(6) inquiry is limited to determining if the allegations
constitute “a short and plain statement of the claim showing the pleader is entitled to relief”
pursuant to Federal Rule of Civil Procedure 8(a)(2). To survive a defendant’s motion to dismiss,

factual allegations in the complaint must be sufficient to “raise a right to relief above a
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a complaint
will survive if it contains “enough facts to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
For the purposes of a Rule 12(b)(6) analysis, a claim has facial plausibility “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). The
Court must draw all reasonable factual inferences in favor of the plaintiff. Priority Auto Grp.,
Inc. v. Ford Motor Co., 757 F.3d 137, 139 (4th Cir. 2014). In a Rule 12(b)(6) analysis, the Court

must separate facts from legal conclusions, as mere conclusions are not entitled to a presumption
of truth. Iqbal, 556 U.S. at 678. Importantly, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. However, well-pleaded
factual allegations are entitled to a presumption of truth, and the court should determine whether
the allegations plausibly give rise to an entitlement to relief. Id. at 679.
IV. DISCUSSION
A. Plaintiff’s Disability Discrimination Claim under the ADA and under the
Rehabilitation Act against Defendant WCU
“Pursuant to Title II of the ADA, ‘no qualified individual with a disability shall, by
5
reason of such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subject to discrimination by any such
entity.’” Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999) (quoting 42 U.S.C. § 12132).
“Similarly, the Rehabilitation Act states that ‘no otherwise qualified individual with a disability .
. . shall, solely by reason of his or her 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.’” Betts v. Rector & Visitors of the Univ. of Va., 145 F. App’x 7, 10 (4th
Cir. 2005) (quoting 29 U.S.C. § 794(a)). “The ADA and the Rehabilitation Act are generally
construed to impose the same requirements.” Id.
To state a claim under the ADA, a plaintiff must allege that: “(1) she has a disability, (2)
she is otherwise qualified to receive the benefits of a public service, program, or activity, and (3)
she was excluded from participation in or denied the benefits of such service, program, or
activity, or otherwise discriminated against, on the basis of her disability.” See Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir. 2005); Baird, 192 F.3d

at 467. To allege a violation of § 504 of the Rehabilitation Act, a plaintiff must allege that (1)
she has a disability; (2) she is otherwise qualified; (3) she was excluded from participation in,
was denied the benefits of, or was subjected to discrimination solely by reason of her disability;
and (4) WCU receives federal assistance. Proctor v. Prince George’s Hosp. Ctr., 32 F. Supp. 2d
820, 826 (D. Md. 1998) (citing Doe v. Univ. of Md., 50 F.3d 1261, 1265 (4th Cir. 1995)). “An
otherwise qualified person is one who is able to meet all of a program’s requirements in spite of
his handicap.” Se. Cmty. Coll. v. Davis, 442 U.S. 397, 406 (1979). Conversely, the Act
“imposes no requirement upon an educational institution to lower or to effect substantial
modifications of standards to accommodate a handicapped person.” Id. at 413.
6
In her Amended Complaint, Plaintiff alleges that Defendant WCU intentionally
discriminated against her by dismissing her from the program, even though she was in good
academic standing and was performing all of her required tasks. (Doc. No. 12 at ¶ 39). Plaintiff
also claims that Defendant WCU failed to accommodate her based on her alleged disabilities,
which include major depressive disorder, post-traumatic stress disorder, an eating disorder, and

anxiety. These allegations are enough to withstand Defendants’ motion to dismiss under the
standards of Iqbal and Twombly. Therefore, the Court will deny Defendants’ motion to dismiss
Plaintiff’s ADA and Rehabilitation Act claims, including her failure to accommodate claim.2
B. Plaintiff’s State Law Claims of False Imprisonment, Abuse of Process,
Malicious Prosecution, and Intentional Infliction of Emotional Distress against
Defendant Aspinwall In Her Official Capacity
Next, Plaintiff’s claims against Defendant Aspinwall in her official capacity as an
employee of WCU will be dismissed. The claims of false imprisonment, abuse of process,
malicious prosecution, and infliction of mental distress3 are intentional torts. “A governmental

entity and its officers or employees when sued in their official capacity are immune from suits

2 Defendants correctly note that courts must give great deference to an educational institution’s
determination regarding the necessary qualifications for their students, citing Halpern v. Wake
Forest Univ. Health Sci., 669 F.3d 454, 463 (4th Cir. 2012) (“Because we are likewise at a
comparative disadvantage in determining whether Halpern is qualified to continue in the Doctor
of Medicine program … we accord great respect to Wake Forest’s professional judgments on
these issues.”). The Halpern case, however, was decided on summary judgment, rather than on a
motion to dismiss.

3 “Infliction of mental distress” is not a cognizable claim. It is unclear from her Amended
Complaint whether Plaintiff is alleging intentional or negligent infliction of emotional distress.
The Court here treats it as a claim of intentional infliction of emotional distress, as the rest of the
named torts are all intentional acts. If Plaintiff is alleging negligent infliction of emotional
distress, then the claim is subject to dismissal, as this court does not have jurisdiction over claims
of negligence by state agencies. See N.C. GEN. STAT. § 143-291.
7
based on tort claims, unless there has been some waiver.”4 Aune v. Univ. of N.C., 120 N.C.
App. 430, 436, 462 S.E.2d 678, 683 (1995) (citation omitted). For tort claims, North Carolina
has provided a limited waiver of sovereign immunity by enacting the Tort Claims Act. Davis v.
N.C. State Highway Comm’n, 271 N.C. 405, 408, 156 S.E.2d 685, 687 (1967).
The Tort Claims Act establishes the Industrial Commission as the designated court for

“the purpose of hearing and passing upon tort claims against [state agencies].” N.C. GEN. STAT.
§ 143-291(a) (2017). Furthermore, the Tort Claims Act “authorizes recovery only for negligent
torts. Intentional torts committed by agents and officers of the State are not compensable under
the Tort Claims Act.” Wojsko v. State, 47 N.C. App. 605, 610, 267 S.E.2d 708, 711 (1980); see
also Hooper v. North Carolina, 379 F. Supp. 2d 804, 812 (M.D.N.C. 2005) (“[T]he State of
North Carolina has not waived its sovereign immunity regarding any tort claims other than
claims of negligence brought before the Industrial Commission under Article 31 of Chapter 143
of the Tort Claims Act.”).
At all relevant times, Defendant Aspinwall was an employee of WCU, a North Carolina

state agency funded by the North Carolina General Assembly. N.C. GEN. STAT. § 116-4 (2017).
A judgment against WCU or against Aspinwall in her official capacity would be a judgment
against the State of North Carolina. Huang v. Bd. of Governors of Univ. of N.C., 902 F.2d 1134,
1138 (4th Cir. 1990). Accordingly, sovereign immunity bars Plaintiff from pursuing her
intentional tort claims against WCU and Aspinwall in her official capacity. See Raygor v.
Regents of the Univ. of Minn., 534 U.S. 533, 540-41 (2002); Pennhurst State Sch. & Hosp. v.

4 Moreover, the removal of a case does not impact the determination of the state's immunity
from suit because a state is not deemed to have waived its protection of state sovereign immunity
by voluntarily removing an action to federal court. Stewart v. North Carolina, 393 F.3d 484, 490
(4th Cir. 2005).
8
Halderman, 465 U.S. 89, 120 (1984); Huang, 902 F.2d at 1138. In sum, sovereign immunity
bars Plaintiff’s claims of false imprisonment, abuse of process, malicious prosecution, and
intentional infliction of emotional distress against WCU and Aspinwall in her official capacity.
Therefore, Plaintiff’s official capacity claims of false imprisonment, abuse of process, malicious
prosecution, and intentional infliction of emotional distress against Defendants will be

dismissed.5
C. Plaintiff’s Claims Against Defendant Aspinwall In Her Individual Capacity
Here, Plaintiff has also sued Defendant Aspinwall in her individual capacity, alleging
North Carolina state law claims of false imprisonment, malicious prosecution, intentional
infliction of emotional distress, and abuse of process against her. Defendants contend that,
despite Plaintiff’s allegation that she is suing Aspinwall in her individual capacity, the suit is
really an official capacity suit. In support, Defendants cite Martin v. Wood, 772 F.3d 192 (4th
Cir. 2014), where the plaintiff sued her supervisors, who were employees of the Commonwealth
of Virginia, alleging that they failed to compensate her for overtime hours to which she was

entitled under the Fair Labor Standards Act. The plaintiff intentionally failed to name as a
defendant the Commonwealth of Virginia in order to avoid a sovereign immunity bar. The
Fourth Circuit held that the plaintiff’s FLSA claims against the individual defendants were in
substance “official capacity” rather than “individual capacity” claims. Thus, the Commonwealth
of Virginia was the real party in interest and Eleventh Amendment sovereign immunity therefore
required dismissal of the suit. In its opinion, the Martin court stated that:

5 In her response, Plaintiff argues that that sovereign immunity should not bar these claims
being brought against Aspinwall in her official capacity and WCU. Plaintiff presents no case
law to support this claim, and Plaintiff’s position is clearly contrary to well-established case law
that the State of North Carolina has not waived sovereign immunity for intentional torts.

9
To identify the real, substantial party in interest, we thus examine the substance of
the claims states in the complaint, positing inquiries such as: (1) were the
allegedly unlawful actions of the state officials “tied inextricably to their official
duties,” Lizzi v. Alexander, 255 F.3d 128, 136 (4th Cir. 2001), aff’d, 534 U.S.
1081 (2002); (2) if the state officials had authorized the desired relief at the
outset, would the burden have been borne by the State, cf. Pennhurst, 465 U.S. at
109, n.7; (3) would a judgment against the state officials be “institutional and
official in character,” such that it would operate against the State, id. at 108; (4)
were the actions of the state officials taken to further personal interests distinct
from the State’s interests, id.; and (5) were the state officials’ actions ultra vires,
id. at 111; Lizzi, 255 F.3d at 136.

Id. at 196.
Defendants contend that dismissal of Plaintiff’s state law claims against Defendant
Aspinwall in her individual capacity is appropriate under the five-factor test of Martin v. Wood
because Defendant Aspinwall’s action of completing the involuntary commitment form was
inextricably tied to her official duties as WCU’s Assistant Director of Counseling and
Psychological Services, and the action was conducted “during the course and scope of her
employment at Western Carolina.” (Doc. No. 12 at ¶ 33). Defendants further contend that
Plaintiff has also not alleged any facts to show that Aspinwall took any actions to further her
personal interests, or that her actions were ultra vires. Defendants contend that Plaintiff cannot
circumvent sovereign immunity by suing Defendant Aspinwall in her individual capacity, when
her conduct of completing the petition for involuntary commitment was directly connected to her
official duties as WCU’s Assistant Director of Counseling and Psychological Services.
Under North Carolina law “[t]he crucial question for determining whether a defendant is
sued in an individual or official capacity is the nature of the relief sought, not the nature of the
act or omission alleged.” Meyer v. Walls, 347 N.C. 97, 489 S.E.2d 880, 887 (1997) (internal
quotation marks omitted). “A suit against a defendant in his individual capacity means that the
plaintiff seeks recovery from the defendant directly; a suit against a defendant in his official
10
capacity means that the plaintiff seeks recovery from the entity of which the public servant
defendant is an agent.” Id. At this early stage in the litigation, Plaintiff’s allegations sufficiently
assert claims against Defendant Aspinwall in her individual capacity.6 See Stewart v. North
Carolina, 393 F.3d 484, 491 (4th Cir. 2005).
Defendants contend, alternatively, that Plaintiff fails to state a claim against Defendant

Aspinwall in her individual capacity for the torts of false imprisonment, abuse of process,
malicious prosecution, and intentional infliction of emotional distress. The Court finds under the
lenient, plausibility standard of Twombly and Iqbal, the motion to dismiss as to these claims will
be denied at this time, and the parties may raise their arguments on summary judgment after
conducting discovery.7

6 The Court, thus, finds that Martin v. Wood is not applicable to this case. Martin v. Wood
involved a Fair Labor Standards Act case. In that case, the plaintiff alleged that her employer
failed to compensate her for overtime hours she worked because her supervisors, who were the
only defendants in the case, refused to authorize such compensation. See Martin, 772 F.3d at
196. Since the plaintiff did not allege that her supervisors “acted in an ultra vires manner or
attempted to serve personal interests distinct from the [employer's] interests,” the Fourth Circuit
reversed the district court's ruling denying the supervisors' dismissal motion based on sovereign
immunity because “virtually every factor indicates that [the supervisors were] being sued in their
official capabilities” and the supervisors’ actions were “inextricably tied” to their official duties.”
Id. Here, however, Plaintiff has alleged in the Amended Complaint that Defendant Aspinwall
filed the involuntary petition “with malice” and with “lack of probable cause,” and that the
petition “was calculated to cause, and did cause, mental distress of a very serious kind to the
Plaintiff.” (Doc. No. 12 at 7). Plaintiff also alleges that Aspinwall filed the petition only after
Plaintiff was dismissed from WCU; Plaintiff, therefore, alleges that when Aspinwall filed the
petition she was not acting within the scope of her duties as WCU’s Assistant Director of
Counseling and Psychological Services.
7 Defendants have presented evidence, for instance, outside of the pleadings, tending to show
that, shortly before she was dismissed from the program, Plaintiff admitted to WCU school
officials that she had self-inflicted wounds and she further “threatened suicide as a condition of
whether or not [she] remained in the [WCU] program.” (Doc. No. 9-1 at 1). This evidence, if
presented on summary judgment, would certainly support Defendants’ contention that
Aspinwall’s action of filing the involuntary petition was reasonable and not done with malice
and that it was, in fact, done to protect Plaintiff. These facts would certainly be relevant to
Plaintiff’s state law claims against Aspinwall of false imprisonment, abuse of process, malicious
11
D. Plaintiff’s Claim for Punitive Damages as to the ADA and Rehabilitation Act
Claims
Finally, Defendants contend that Plaintiff’s claims for punitive damages as to the ADA
and Rehabilitation Act claims should be dismissed. The Court agrees. Government agencies are
immune from punitive damages under Title VII. 42 U.S.C. § 1981a(b)(1). By analogy,

Congress cannot have intended to subject state agencies to punitive damages on claims brought
under the ADA and the Rehabilitation Act. Accord Crain v. Cty. Bd. of Educ., No. 3:15cv188,
2015 WL 6449413, at *6 (W.D.N.C. Oct. 23, 2015). Thus, Plaintiff is not entitled to punitive
damages against WCU for a violation of the ADA or the Rehabilitation Act.
V. CONCLUSION
For the reasons stated herein, Defendants’ motion to dismiss is GRANTED as to Plaintiff’s
official capacity state law claims against Defendants WCU and Aspinwall. At this early stage in
the proceedings, Defendants’ motion to dismiss is DENIED as to Plaintiff’s state law tort claims
against Defendant Aspinwall in her individual capacity. Defendants’ motion to dismiss is

DENIED as to Plaintiff’s claim against WCU for disability discrimination under the ADA and
the Rehabilitation Act. Furthermore, Plaintiff is not entitled to punitive damages against WCU
for a violation of the ADA or the Rehabilitation Act. Thus, the motion to dismiss is GRANTED
as to Plaintiff’s claim for punitive damages as to Plaintiff’s claim for a violation of the ADA or
the Rehabilitation Act.
IT IS, THEREFORE, ORDERED that:

prosecution, and intentional infliction of emotional distress. Furthermore, had Aspinwall not
filed the petition for involuntary commitment, and if Plaintiff had then committed suicide,
Aspinwall may well have been exposed to a claim for negligence from Plaintiff’s family. In any
event, these issues are best resolved on summary judgment.
12
1. Defendants’ Motion to Dismiss (Doc. No. 15), is GRANTED in part and DENIED
in part in accordance with this Order.

Signed: July 16, 2019

Kee □□□ □□ Lee
Max O. Cogburn Jr
United States District Judge Felgen

13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254737. Public record. Not legal advice.