Jonathan A. Sasser v. Board of Regents of the University System of Georgia

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14433

Non-Argument Calendar

____________________

JONATHAN A. SASSER,

Plaintiff-Appellant,

versus

BOARD OF REGENTS OF THE UNIVERSITY

SYSTEM OF GEORGIA,

UNIVERSITY OF GEORGIA,

JERE WADE MOREHEAD,

Individually and as President, University of Georgia,

UNIVERSITY OF GEORGIA EQUAL OPPORTUNITY OFFICE,

ERYN JANYCE DAWKINS,

Individually and as Director Equal Opportunity Office,

University of Georgia, et al.,

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2 Opinion of the Court 21-14433

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-04022-SDG

____________________

Before NEWSOM, BRANCH, and GRANT, Circuit Judges

PER CURIAM:

Plaintiff Jonathan Sasser (“Sasser”) appeals pro se the district

court’s dismissal of his second amended complaint alleging

violations of his First Amendment right to freedom of speech while

attending the University of Georgia (“UGA”) as a student and

athlete on the UGA baseball team. Because the district court’s

dismissal was proper, we affirm.

I. Factual Background

On or about September 29, 2018, Sasser attended a home

UGA football game and, while in attendance, used a racial slur in

reference to one of the players. Over a period of days following

the football game, Sasser met with his baseball coach and various

officials from the UGA Athletic Association (“UGAAA”) to discuss

the incident. On or about October 3, 2018, these individuals

informed Sasser he would be removed from the baseball team.

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During this same period, the director of UGA’s Equal

Opportunity Office (“EOO”), Defendant Eryn Janyce Dawkins,

conducted an investigation that concluded with Sasser’s

suspension for the remainder of the fall 2018 semester. Sasser

appealed his suspension and removal from the baseball team but

Defendant Jere Wade Morehead, UGA’s President, upheld the

decisions. After a second appeal, the Board of Regents of the

University System of Georgia (“the Board of Regents”) also upheld

the decisions.

Sasser filed suit against UGA, the Board of Regents, the

EOO, and the UGAAA under the pseudonym “John Doe” asserting

seven causes of action alleging free speech, due process, and equal

protection violations, as well as breach of contract, and seeking

declaratory and injunctive relief. He also named the following four

school officials in both their official and personal capacities for

violating his First Amendment rights: Morehead, Dawkins,

Edward McMillian Tate (UGA’s Vice Chancellor of Legal Affairs),

and C. Dean Alford, P.E. (a UGA Regent).

Sasser amended his complaint to seek additional forms of

relief, including reversal of his removal from the UGA baseball

team and expungement of his record. The district court ordered

him to file a second amended complaint identifying himself by

name. In his second amended complaint, Sasser finally identified

himself alleging that the disciplinary actions violated his

constitutional rights under 42 U.S.C. § 1983 and were taken in

retaliation for his exercise of his First Amendment freedoms.

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Sasser also brought Fourteenth Amendment equal protection and

due process claims, and a breach of contract claim. Additionally,

he sought declaratory and injunctive relief.

Following motions to dismiss filed by each Defendant, the

district court dismissed Sasser’s second amended complaint.

The district court dismissed all claims against UGA and the

EOO because, as member institutions of the Board, neither are

legal entities that can be sued. The district court also dismissed all

claims against the Board of Regents, concluding that it was entitled

to Eleventh Amendment sovereign immunity. As for the UGAAA,

the district court accepted Sasser’s argument that the UGAAA was

an “arm of the state” and dismissed the claims against it as being

barred by Eleventh Amendment sovereign immunity. Finally, the

district court dismissed the claims against the individual

Defendants in their official capacity on sovereign immunity

grounds, concluding that, because Sasser based those claims solely

on past conduct, Ex Parte Young, 209 U.S. 123 (1908), did not apply.

As for the remaining claims against the individual

Defendants in their personal capacities, the district court concluded

that the Defendants were entitled to qualified immunity, finding

that Sasser had not alleged a constitutional violation, “let alone one

[that was] clearly established.” The district court dismissed Sasser’s

equal protection, due process, and breach of contract claims—each

for failure to state a claim. Because none of Sasser’s claims

remained, the district court dismissed his claims for declaratory and

injunctive relief.

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On appeal, proceeding pro se, Sasser challenges the dismissal

of his claims against the individual Defendants acting in their

personal capacities on the grounds of qualified immunity.1 Because

1

Sasser has abandoned all other claims on appeal. An appellant can abandon

a claim by: (1) making only passing reference to it, (2) raising it in a perfunctory

manner without supporting arguments and authority, (3) referring to it only

in the “statement of the case” or “summary of the argument,” or (4) referring

to the issue as mere background to the appellant’s main arguments. Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 681–82 (11th Cir. 2014). While we

will liberally construe pro se pleadings, issues not briefed on appeal are

normally deemed abandoned and will not be considered. Timson v. Sampson,

518 F.3d 870, 874 (11th Cir. 2008).

Sasser does not challenge the district court’s determination that his

First Amendment claims against the Board of Regents or the individual

Defendants acting in their official capacity are barred by sovereign immunity.

The same is true for his claims for declaratory and injunctive relief based on

the alleged First Amendment violations. While Sasser’s briefing refers broadly

to “immunity/qualified immunity” for the individual Defendants, it focuses

on arguments related to qualified immunity only. He has therefore

abandoned his claims based upon sovereign immunity. Even if he had not

abandoned these claims, however, they would fail on the merits because the

Board of Regents, as an arm or instrumentality of the State of Georgia is

entitled to sovereign immunity. See, e.g., Stroud v. McIntosh, 722 F.3d 1294,

1297 (11th Cir. 2013) (“There is no dispute that the Board [of Regents of the

University System of Georgia] is an arm of the state for the purposes of

asserting sovereign immunity.”). Similarly, the individual Defendants, as

alleged agents of the Board of Regents, are also entitled to sovereign

immunity. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991).

As for his claims against the individual Defendants in their official

capacities for injunctive and declaratory relief, Sasser does not challenge the

district court’s determination that Ex parte Young, 209 U.S. 123 (1908), did not

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6 Opinion of the Court 21-14433

the district court did not err in dismissing Sasser’s second amended

complaint, we affirm.

II. Discussion

We review de novo a district court’s order granting the

Defendants’ motion to dismiss. McDonald v. S. Farm Bureau Life

Ins. Co., 291 F.3d 718, 722 (11th Cir. 2002).

apply and the individual Defendants were entitled to sovereign immunity on

those claims as well.

Likewise, Sasser does not mention his equal protection or breach of

contract claims on appeal. Id. Additionally, Sasser raised his due process

claims for the first time in his reply brief. While this Court construes briefs

filed by pro se litigants liberally, we will not address issues raised for the first

time in an appellant’s reply brief. United States v. Levy, 379 F.3d 1241, 1244

(11th Cir. 2004).

Sasser also has not challenged on appeal the district court’s dismissal

of his claims against UGA or the EOO on the grounds that neither are legal

entities capable of being sued in their own capacities. See Timson, 518 F.3d at

874. Even if he had not abandoned those claims, they would fail on the merits

because neither UGA nor the EOO are distinct, legal entities capable of being

sued under Georgia law. Bd. of Regents of the Univ. Sys. of Ga. v. Doe, 278

Ga. App. 878, 878 (2006) (holding that member institutions of the Board are

not “separate or distinct” legal entities and thus “cannot sue or be sued”).

Lastly, Sasser does not challenge the district court’s dismissal of his

claims against the UGAAA. See Timson, 518 F.3d at 874. Even if he had not,

his challenge would fail on the merits because the UGAAA is a private

corporation, not a state actor, and therefore cannot be liable under § 1983.

O.C.G.A. §§ 20-3-78, 20-3-79(a).

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A. Qualified Immunity for the individual

Defendants acting in their personal capacities

Because Sasser has abandoned all his other claims, the

remaining issue on appeal is Sasser’s § 1983 claim against the

individual Defendants for monetary damages based upon alleged

First Amendment violations. Even assuming that Sasser can show

that his First Amendment right to free speech was violated, he has

not shown that the allegedly violated right was clearly established.

The individual Defendants are therefore entitled to qualified

immunity for the claim against them in their personal capacities.

A complaint stating a claim for relief must contain “a short

and plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a)(2). Factual allegations in a complaint

“must be enough to raise a right to relief above the speculative

level, on the assumption that all the allegations in the complaint

are true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations omitted). A plaintiff’s allegations must amount to more

than “labels and conclusions.” Id.

Section 1983 prohibits officials acting under color of state

law from depriving another of their constitutional rights. 42 U.S.C.

§ 1983. Qualified immunity protects a defendant from liability

under § 1983 for discretionary acts, “as long as [those] acts do not

violate clearly established . . . constitutional rights of which a

reasonable person would have known.” Jackson v. Sauls, 206 F.3d

1156, 1164 (11th Cir. 2000). “The immunity protects all but the

plainly incompetent or those who knowingly violate the law.”

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Jordan v. Mosley, 487 F.3d 1350, 1354 (11th Cir. 2007) (quotation

omitted).

Overcoming the official’s qualified immunity defense

ordinarily involves a two-part inquiry. Id. at 1137. We consider:

(1) “[whether] the facts, construed in the light most favorable to

the plaintiff, show that a constitutional right has been violated; and

(2) whether the right violated was clearly established.” Roberts v.

Spielman, 643 F.3d 899, 904 (11th Cir. 2011) (quotation omitted).

Both elements must be satisfied to overcome qualified immunity.

Id. A court may address these factors in either order it deems most

appropriate, see Case v. Eslinger, 555 F.3d 1317, 1325–26 (11th Cir.

2009), and a public official is entitled to qualified immunity if the

plaintiff fails to establish either one, see Pearson v. Callahan, 555

U.S. 223, 236 (2009).

The controlling question in the “clearly established” prong

of the qualified immunity analysis is whether the individual

Defendants received “fair warning” that their conduct was

unconstitutional. Wade v. United States, 13 F.4th 1217, 1225 (11th

Cir. 2021). This “standard is a demanding one.” Cantu v. City of

Dothan, 974 F.3d 1217, 1235 (11th Cir. 2020). This is especially true

in the context of the First Amendment. See, e.g., Gaines v.

Wardynski, 871 F.3d 1203, 1220 (11th Cir. 2017) (“It is particularly

difficult to overcome the qualified immunity defense in the First

Amendment context.”); Maggio v. Sipple, 211 F.3d 1346, 1354 (11th

Cir. 2000) (“[A] defendant in a First Amendment suit will only

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rarely be on notice that his actions are unlawful.” (quotation

omitted)).

There are three methods by which a plaintiff can

demonstrate that a right was clearly established. We focus

primarily on the first method of the analysis, in which “the law can

be ‘clearly established’ for qualified immunity purposes only by

decisions of the U.S. Supreme Court, Eleventh Circuit Court of

Appeals, or the highest court of the state where the case arose.”

Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th

Cir. 1997). 2 “This method requires us to consider whether the

factual scenario that the official[s] faced is fairly distinguishable

from the circumstances facing [the] government official[s] in a

previous case.” Gaines, 871 F.3d at 1209 (quotation omitted).

“Although existing case law does not necessarily have to be

‘directly on point,’ it must be close enough to have put ‘the

statutory or constitutional question beyond debate.’” Id. at 1209–

10 (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)).

Sasser argues that Healy v. James, 408 U.S. 169 (1972), and

Papish v. Board of Curators of the University of Missouri, 410 U.S.

667 (1973), clearly establish a First Amendment violation in this

case. In doing so, he argues that Tinker v. Des Moines Independent

2

Plaintiffs can also satisfy the “clearly established” prong by pointing to “a

broader, clearly established principle that should control the novel facts of the

situation,” or by demonstrating that “the conduct involved in the case may so

obviously violate the constitution that prior case law is unnecessary.” Terrell

v. Smith, 668 F.3d 1244, 1255 (11th Cir. 2012). Sasser does neither here.

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Community School District, 393 U.S. 503 (1969), and Bethel School

District No. 403 v. Frazer, 478 U.S. 675 (1986), the cases upon

which the Defendants (and the district court) rely, dealt only with

high school students’ First Amendment rights, while Healy and

Papish address college and university students’ rights.

In Healy, the Supreme Court held that a college violated the

plaintiffs’ free association rights when it denied recognition of their

student group. Healy, 408 U.S. at 170–71. Citing Tinker, the Court

stated that “state colleges and universities are not enclaves immune

from the sweep of the First Amendment.” Id. at 180. Indeed, it

recognized that the protection of First Amendment freedoms is

“vital” on the campuses of colleges and universities, which

represent “the marketplace of ideas.” Id. One year later in Papish,

the Supreme Court held that the University of Missouri violated a

graduate student’s First Amendment rights by expelling him for

disseminating a student newspaper with an expletive-bearing

headline. Papish, 410 U.S. at 671. The Court reaffirmed Healy and

stated that while “a state university[ has an] undoubted prerogative

to enforce reasonable rules governing student conduct,” it may not

“shut off” the “dissemination of ideas—no matter how offensive to

good taste.” Id. at 669–70. In so holding, it also acknowledged that

universities nonetheless may apply “nondiscriminatory [and]

reasonable rules governing conduct” of students. Id.

Sasser is correct that Healy and Papish speak to the First

Amendment rights of university students. And, of course, the First

Amendment protects speech that is offensive and abhorrent.

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However, he has not pointed to a case from the United States

Supreme Court, our Court, or the Supreme Court of Georgia in

which a student was disciplined in violation of the First

Amendment for using a racial slur on campus during a school-

sponsored event. See Gaines, 871 F.3d at 1209. Both Healy and

Papish are factually distinguishable from this case. Healy

concerned the First Amendment right to free association, not the

freedom of speech, and addressed formal recognition of a student

group rather than the discipline of a student for his or her individual

speech. Healy, 408 U.S. at 170–71. Likewise, Papish addressed the

discipline of a student for distribution of a student newspaper

containing what the university argued was obscenity. Papish, 410

U.S. at 671. The facts of that case were materially different from

this case and thus cannot defeat qualified immunity.

And true, both Tinker and Bethel involved students in public

high schools. The plaintiffs in Tinker were high school students

who were disciplined for wearing black armbands in protest of the

Vietnam War, Tinker, 393 U.S. at 504, while the plaintiff in Bethel

was a high school student who delivered a speech riddled with

“elaborate, graphic, and explicit sexual” content, Bethel, 478 U.S.

at 678. The Supreme Court held that the school in Tinker violated

the plaintiffs’ rights by suspending them, Tinker, 393 U.S. at 514,

but in Bethel upheld the plaintiff’s suspension from school, Bethel,

478 U.S. at 686. Tinker “held that public schools may regulate

student expression when it ‘substantially interfere[s] with the work

of the school or impinge[s] upon the rights of other students.’” Doe

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v. Valencia Coll., 903 F.3d 1220, 1229 (11th Cir. 2018) (quoting

Tinker, 393 U.S. at 509). While the Court “ma[de] clear that

students do not ‘shed their constitutional rights to freedom of

speech or expression at the schoolhouse gate,’” Morse v. Frederick,

551 U.S. 393, 396 (2007) (quoting Tinker, 393 U.S. at 506), the Court

also held in Bethel that “the constitutional rights of students in

public school are not automatically coextensive with the rights of

adults in other settings,” Bethel, 478 U.S. at 682. For those reasons,

public schools are permitted to impose sanctions upon students “in

response to . . . offensively lewd and indecent speech.” Id. at 685.

Still, it is not clear to what extent Tinker applies to the

university setting, making it all the more obvious that the law in

this area is not so clearly established to put the individual

Defendants on notice so as to defeat qualified immunity. Indeed,

our Court has stated that “it’s not at all clear that Tinker[ ]. . .

applies in the university—as opposed to the elementary- and

secondary-school—setting,” acknowledging that the caselaw in

this area “sends mixed signals.” Speech First, Inc. v. Cartwright, 32

F.4th 1110, 1127 n.6 (11th Cir. 2022). Still, Sasser has not pointed

to a factually similar case that “truly compels . . . the conclusion . . .

that [the] Defendant[s] violated [his] federal rights.” Evans v.

Stephens, 407 F.3d 1272, 1282 (11th Cir. 2005) (en banc).

We therefore conclude that the district court did not err in

dismissing Sasser’s second amended complaint because, even if the

individual Defendants did violate Sasser’s rights, as he alleged,

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those rights were not clearly established, so they were entitled to

qualified immunity.

III. Conclusion

For these reasons, the district court did not err in dismissing

Sasser’s second amended complaint. Accordingly, we affirm.

AFFIRMED.