The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:21-cv-00110-MR-WCM
DONNA GARRETT )
)
Plaintiff, )
)
v. )
)
DR. DON TOMAS, in his personal )
and official capacity as President )
of Southwestern Community )
College; DR. THOM BROOKS, in ) ORDER
his personal capacity and official )
capacity as Executive Vice )
President of Instruction and )
Student Services of Southwestern )
Community College; DR. MITCH )
FISCHER in his personal capacity )
and official capacity as Dean of )
Health Science of Southwestern )
Community College; WENDY )
BUCHANAN, in her personal )
capacity and official capacity )
as Director of the Nursing Program )
of Southwestern Community )
College; and THE TRUSTEES OF )
SOUTHWESTERN COMMUNITY )
COLLEGE, )
)
Defendants. )
___________________________ )
This matter is before the Court on Defendants’ Motion to Dismiss (Doc.
3), which has been referred to the undersigned pursuant to 28 U.S.C. § 636 for
the entry of a recommendation.
The undersigned has reviewed the parties’ briefing relative to the Motion
to Dismiss, as well as relevant authorities, and finds that a more thorough
discussion of certain issues may aid in the decisional process. Specifically, the
parties will be directed to address the following:
1. The extent to which courts have made affirmative findings regarding
the existence of a constitutionally protected right to continued
enrollment at an institution of higher education for purposes of a
claim alleging violation of the due process requirements of the North
Carolina Constitution or the Constitution of the United States, and
noting whether such decisions have been rendered at the motion to
dismiss stage, summary judgment, or at trial.
2. Whether a constitutionally protected right to continued enrollment at
an institution of higher education was “clearly established” at all
times relevant to this matter, for purposes of Defendants’ qualified
immunity defense. See e.g., Doe v. White, 440 F. Supp. 3d 1074 (N.D.
Cal. 2020), aff'd, No. 20-15450, 2021 WL 2206459 (9th Cir. June 1,
2021).
Each side shall submit a supplemental brief on these topics, with each
brief not to exceed 10 pages in length, on or before July 16, 2021.
It is so ordered.
Signed: June 30, 2021
oJ
Y/
W. Carleton Metcalf / ta
United States Magistrate Judge alts