Opposition Brief — Nelson v. University of Alabama System

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Supreme Court, U.S.

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No. 91-1843 : JUN 17 1999 |

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InN THE

Supreme Court of the United States

OCTOBER TERM, 1991

JAMES DAVIS NELSON, JR.,

Petitioner,

V.

UNIVERSITY OF ALABAMA SYSTEM, et al.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Alabama

BRIEF OF RESPONDENTS IN OPPOSITION

PAUL E. SKIDMORE *

GEORGE B. GORDON

Office of Counsel

THE UNIVERSITY OF ALABAMA

SYSTEM

P.O. Box 870106

Tuscaloosa, AL 35487-0106

(205) 348-5490

* Counsel of Record Attorneys for Respondents

June 1992

tienen

WILSON - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

QUESTION PRESENTED

I. Is summary judgment properly entered under Rule

56 of the Alabama Rules of Civil Procedure subject to

challenge in federal court as a deprivation of due process,

where respondents conclusively demonstrated that there

are no genuine issues of material fact to be tried, and

petitioner, after discovery, has failed to produce any evi-

dence indicating that genuine issues of material fact do

exist?

(i)

il

PARTIES TO THE PROCEEDINGS BELOW

In addition to the parties listed in the caption and in

the petition for writ of certiorari, Dr. James G. Taafe is

a party. Mr. Winton Blount, Mr. Sam Earl] Hobbs, Dr.

Joab L. Thomas, Dr. Thomas Bartlett, and Dr. Douglas

Jones, who were defendants-appellees in the proceedings

below, no longer hold offices as officials, and therefore are

not parties in this Court. See Sup. Ct. R. 35.3.

TABLE OF CONTENTS

Page

cca sninensinvaisancsinismasibnbennnehonn iv

I ais as cmcsnsicksennsbaccaasnibnenteepsnmaenniions 1

EET a OE 1

STATEMENT OF THE CASE .....W000oo. eee 2

Nee ai cic acc cpetnancitbesihshasnnaibnanisalanatints 2

er EY aesnsanasenninesciennamcee 2

2. The Events Leading to Petitioner’s Lawsuit.. 3

B. What This Case Is Not About ........-...-.22-..e... 8

1. It Is Not About Non-Academic Grievances.... 8

2. It Is Not About The Merits of Petitioner’s

EE ROI once accsenennniessnennshocsonne 9

C. This Case Is About Summary Judgment .............. 9

D. Questions Raised Below ..............0.0002... 02. 11

REASONS FOR THE DENYING WRIT ...............-- 11

I. SUMMARY JUDGMENT DOES NOT DENY

ONE’S RIGHT TO A JURY TRIAL _............ 11

II. THE DECISION BELOW IS CORRECT........... 12

III. THIS CASE IS NOT IMPORTANT AND PRE-

SENTS NO SUBSTANTIAL FEDERAL IS-

RE 14

ERE CC 15

(iii)

iv

TABLE OF AUTHORITIES

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

5 | ROOM ECR RC ome A ti 1 Ta

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).........

Fidelity & Deposit Co. of Maryland v. United States

to Use of Smoot, 187 U.S. 315 (1902) —......0.......

Goodman v. Lukens Steel Co., 482 U.S. 656

fj SSSI EB Rae RENE RERP EOD Ser tier ar LOE Se ae

Hammond v. Auburn University, 669 F. Supp.

1555 (M.D. Ala. 1987), aff’d, 858 F.2d 744 (11th

Cir. 1988), cert. denied, 106 S. Ct. 1134 (1989)...

Hightower & Co. v. United States Fidelity and

Guar. Co., 527 So. 2d 698 (Ala. 1988) .................

Lujan v. National Wildlife Fed’n, 110 S. Ct. 3177

GNI tcc ceeca th abeneleci capstan anacide meena mmamiasckans

Poller v. Columbia Broadcasting Sys., Inc., 368 U.S.

RI I eke cil nc ceed emit ios

Rice v. Sioux City Memorial Park Cemetery, 349

ee ee ID einai ee a ceeaciaeaceaeaaialesctenamnanieandics

Rogers v. Missouri Pac. R.R., 352 U.S. 500 (1957)...

MISCELLANEOUS

ee ee aaonatarensaanoae

I a 5 cacaeiaailininn

pm Re ee ” ener ne et Tn Ta AS wh NA

Ala. R. Civ. P. 59.1 ......... FOE ek Se RM MY Mn IE

13

12, 15

15

14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-1843

JAMES DAVIS NELSON, JR.,

" Petitioner,

UNIVERSITY OF ALABAMA SYSTEM, et al.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Alabama

BRIEF OF RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the Supreme Court of Alabama is re-

ported as Nelson v. University of Alabama Sys., 594

So. 2d 632 (Ala. 1992). A copy of this opinion appears in

the appendix to this brief because portions of the text are

omitted from the opinion reproduced in the petition. Brief

in Opposition [hereinafter “Opp. Br.”] at la, Nelson

v. University of Alabama Sys., 594 So. 2d 632 (Ala.

1992) (No. 91-1873).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(a). The petition was timely filed.

2

STATEMENT OF THE CASE

A. The Facts:

1. Proceedings Below.

Petitioner filed suit on April 26, 1989, alleging consti-

tutional claims as well as claims of fraud, deceit, libel,

slander, and “academic fraud.”

On May 25, 1989, respondents filed a motion to dismiss

raising a variety of defenses, including sovereign immu-

nity,. qualified immunity, and estoppel. At the motion

hearing on July 27, 1989, the trial court granted a con-

tinuance to permit petitioner to amend his complaint.

Petitioner filed an amended complaint on September 1,

1989.

Respondents’ motion to dismiss was argued Novem-

ber 8, 1989. ©n December 28, 1989, the trial court dis-

missed all but three counts of the amended complaint

which alleged 42 U.S.C. § 1983 claims of denial of pro-

cedural due process, equal protection, and conspiracy. As

to these remaining claims the court also dismissed many

of the named respondents.' Opp. Br. at 6a.

Following almost ten months of discovery,- respondents

on October 31, 1990, filed a motion for summary judg-

ment, which was supported by several affidavits. The

motion was set for hearing on December 7, 1990. Before

the hearing date, petitioner noticed three depositions and

obtained a continuance of the summary judgment hearing.

On January 11, 1991, petitioner moved for summary

judgment. The trial court heard arguments on both sum-

mary judgment motions on February 19, 1991, and subse-

quently entered summary judgment in favor of all re-

spondents on all claims on February 21, 1991.

On March 18, 1991, petitioner filed with the trial: court

a motion -to alter, amend, or vacate the summary judg-

1QOn appeal to the Alabama Supreme Court, petitioner did not

challenge the trial court’s ruling on respondents’ motion to dismiss.

3

ment which was set for hearing on April 10, 1991. When

the trial court did not issue a ruling within ninety days

after the hearing, the motion was denied procedurally.

Ala. R. Civ. P. 59.1.

Thereafter, petitioner pursued an appeal to the Su-

preme Court of Alabama. On January 24, 1992, the Ala-

bama Supreme Court affirmed the trial court’s judgment,

and on February 21, 1992, denied his request for re-

hearing.”

2. The Events Leading To Petitioner's Lawsuit.

In the 1986 fall semester, the University admitted pe-

titioner to pursue a course of study in the Capstone Col-

lege of Nursing. At the conclusion of the 1986 fall

semester, petitioner was placed on indefinite academic

suspension from the University. With the assistance of

Dean Mobley, the University waived petitioner’s suspen-

sion and allowed him to enroll in nursing courses for the

1987 spring semester. In the 1987 spring semester, pe-

titioner enrolled in two courses: Nursing 214—“Medica-

tion Calculations” and Nursing 256—“Nursing Process.”

Nursing 256 is a clinical course. It has a theoretical

phase and a clinical phase. The theoretical phase con-

sists of lectures concerning the subject matter of the

course. The clinical phase has two parts. In the first

part, students practice nursing skills in a simulated en-

vironment. In the second part, students gain real-life

nursing experiences from working in hospitals or other

patient care facilities. In order to pass Nursing 256, a

student must obtain a passing grade, which is based on

tests and papers, in the theoretical part of the course,

must obtain a satisfactory evaluation in the clinical part

of the course, and must sit for the National League of

Nursing Achievement Test (“NLN test”). Petitioner

2 Petitioner was represented by counsel throughout all lower court

proceedings.

4

failed Nursing 256 because he received an unsatisfactory

clinical evaluation, and he did not sit for the NLN test.

As a consequence of his poor academic performance in

the 1987 spring semester, petitioner was placed again on

indefinite academic suspension.

Following the end of the semester in May, 1987, peti-

tioner for the first time began to voice complaints about

his instructor in Nursing 256. His complaints alleged in-

competency on the part of his instructor, Professor

Adams, rather than some impropriety relating to his

grade in Nursing 256. After talking with Dean Mobley

and Associate Dean Awtrey, petitioner was advised by

each of them that if he was displeased with his grade in

Nursing 256, he could file an academic grievance under

the University-Wide Academic Grievance Procedures.

The University-Wide Academic Grievance Procedures is

a process by which a student can request a multi-level,

non-judicial review of an academic action that adversely

affects the student’s course grade. The review process

begins with attempts to mediate the grievance through

informal conferences in the academic department where

the academic action occurred and ends with a more formal

appeal hearing before a panel consisting of University

administrators, a faculty member, and a student. At the

conferences and hearings the student has a right to repre-

sentation. Under this procedure, because the Nursing Col-

lege is not divided into academic departments, the dean

of the College handles the initial stages of the grievance.

If the grievance is not resolved at the dean’s level, then

the Office for Academic Affairs becomes involved.

An academic grievance is a complaint about an action

which directly affects the grade that a student received on

a test or in a course. A grievable academic action may

involve a mathematical error in computing a student’s

grade, a change in the course requirements, or other such

similar matters. Academic grievances do not encompass

5

Student complaints about conduct of faculty members or

administrators that are unrelated to grades or course

requirements.

On September 14, 1987, petitioner met with Dean Mob-

ley and gave to her a written complaint. In this com-

plaint petitioner asked the University to fire Assistant

Professors Nelson and Adams for alleged criminal acts,

collusion, lack of professionalism, and mental cruelty.

Although petitioner asked for reinstatement in the Uni-

versity, he did not complain that he had been unfairly

graded in Nursing 256. The matters alleged by petitioner

were not academic grievances; however, since Dean Mob-

ley knew that he had received a failing grade in N ursing

256, she gave him a copy of the University-Wide Aca-

demic Grievance Procedures.

Subsequently, petitioner spoke with Dr. Sayers, Vice

President for Academic Affairs, about his complaints

against his professors. Dr. Sayers told petitioner that the

only option available to him would be to contest his grade

in Nursing 256 by filing an academic grievance, which

would be handled initially by Dean Mobley.

After several meetings with petitioner, Dean Mobley

sent him a letter on December 7, 1987. In her letter she

recounted their previous meetings and reminded him of

their discussions about the academic grievance procedures,

She explained to him that until she received a written

academic grievance about his Nursing 256 grade, there

could be no hearing. She also suggested that he could

contact Dr. Buttram, Director of Student Services, for as-

sistance in drafting an academic grievance. Clerk’s Rec-

ord [hereinafter “CR.”] at 581-82.

On December 9, 1987, petitioner submitted to Dean

Mobley academic grievances against Associate Dean

Awtrey and Assistant Professors Nelson and Adams.

Dean Mobley then promptly initiated the procedures out-

lined in the University-Wide Academic Grievance Proce-

dures,

| i

6

Also in accordance with the procedural guidelines, Dean

Mobley met with petitioner in January, 1988, to discuss

the procedures for processing his academic grievances. At

this conference petitioner explained to her that he had

asked several non-University agencies to conduct investi-

gations and that he wanted to receive a response from

these external agencies before continuing with the aca-

demic grievance procedures. Based on petitioner’s re-

quest, Dean Mobley agreed to delay the grievance proce-

dures until he contacted her. Deposition of James Davi:

Nelson (2/7/90) [hereinafter “Nelson Dep.”] at 57-59.

Shortly thereafter, Dean Mobley, fearing that peti-

tioner’s delay request might indefinitely postpone the pro-

ceedings and hopeful that the informal conferences pro-

vided for in the procedures might resolve the matter or

narrow the issues involved, reconsidered her decision to

grant his request for a delay. CR. at 584-85. On Feb-

ruary 2, 1988, Dean Mobley sent petitioner a letter ex-

plaining her decision to move ahead with the grievance

procedures. She then resumed the academic grievance

procedures by scheduling informal conferences between

petitioner and the individuals who were named in his aca-

demic grievances. On February 2, 1988, she notified him

of the dates for these informal conferences. CR. at

630-35.

Approximately three weeks later, petitioner filed com-

plaints against Dean Mobley, one of which was based

upon her resumption of the academic grievance proce-

dures. Along with these complaints, petitioner again

asked for a delay in the academic grievance procedures

and demanded Dean Mobley’s recusal from the academic

grievance procedures. Nelson Dep. at 63-65, Def. Exs.

4, 5.

As a result of petitioner’s complaints and demands,

Dean Mobley recused herself and notified petitioner that

the informal conferences were canceled and that the Office

7

of Academic Affairs would contact him about his aca-

demic grievances.

A few days later, Dr. Donald Crump, Assistant Aca-

demic Vice President in the Office of Academic Affairs,

contacted petitioner and scheduled a meeting with peti-

tioner for February 29, 1988, to discuss the handling of

his academic grievances.

The meeting on February 29, 1988, was attended by

Dr. Crump, Kenneth L. Goodwin, petitioner, and several

of petitioner’s friends. Mr. Goodwin attended the meet-

ing at Dr. Crump’s request and was introduced by Dr.

Crump as one of the University’s attorneys. During the

meeting Mr. Goodwin and Dr. Crump asked petitioner

several questions to determine how he wanted his academic

grievances handled in view of Dean Mobley’s removal

from the academic grievance procedures. CR. at 547-49.

During this meeting petitioner asked for a third time

that the University delay any further action on his aca-

demic grievances until he had. heard from the non-

University agencies that were allegedly conducting in-

vestigations at his request. Petitioner said that when he

heard from these agencies, he would contact Dr. Crump

to discuss resumption of the academic grievance proce-

dures. Dr. Crump granted petitioner’s request for an

indefinite delay in the academic grievance procedures. CR.

at 548-59; Nelson Dep. at 36-37.

Shortly thereafter, petitioner filed numerous non-

academic complaints unrelated to his N ursing 256 grade

against Dr. Crump, Mr. Goodwin, Academic Vice Presi-

dent Sayers, University President Thomas, Chancellor

Bartlett, and Governor Guy Hunt. Along with these com-

plaints, petitioner continued to demand that the Univer-

sity take no further action on his academic grievances

until the conclusion of the investigations by the external

8

agencies.? Nelson Dep. at 105-08, 112-18, Def. Exs. 9, 10,

11, 12.

From the time petitioner initially submitted his aca-

demic grievances on December 9, 1987, until the filing of

his lawsuit on April 26, 1989, petitioner never contacted

Dr. Crump to request a resumption of the academic griev-

ance procedures. Nelson Dep. at 118. In accordance with

petitioner’s demands, Dr. Crump never recommenced the

grievance procedures.

B. What This Case Is Not About.

1. The Case Is Not About Non-Academic Grievances.

This case does not concern petitioner’s non-academic

complaints against his instructors and other University

officials.

Petitioner filed multiple non-academic grievances

against Dean Mobley, Assistant Academic Vice President

Crump, and a host of other University officials. Although

petitioner had a right to complain about non-academic

matters, he had no right to a hearing on them, and of-

fered no evidence to the contrary.

Since petitioner has no right to a hearing on non-

academic complaints, he has not suffered a denial of due

process, and the absence of a hearing on his non-academic

complaints is not probative of his academic grievance due

process claim. Further, petitioner abandoned any claims

concerning his non-academic complaints when he admitted

to the Alabama Supreme Court in his reply brief that his

appeal did not concern non-academic grievances.

3 At his deposition on February 7, 1990, petitioner acknowledged

that he stilthad not received a reply from the outside agencies.

4 These non-academic grievances alleged such matters as “un-

professionality with respect to using an adjective in which she could

not and would not define.” Nelson Dep., Def. Ex. 6.

9

2. The Case Is Not About The Merits of Petitioner’s

Academic Grievances.

The merits of petitioner’s academic grievance are not

before this Court. The petition contains numerous state-

ments about the loss of petitioner’s final examination,°

the alleged conflicts with his instructors, and the alleged

fabricated documents. Petitioner says the lower courts

ignored these matters and therefore erred in granting re-

spondents’ summary judgment.

Petitioner’s contention is preposterous. The trial court’s

summary judgment order clearly indicated that it was

“making no ruling as to the merits of plaintiff’s griev-

ances .. . since those matters are not before this court,

and are not ripe for review by a Circuit Court.” Petition

for Writ of Certiorari [hereinafter “Pet.”] at a-12,

Nelson v. University of Alabama Sys., 594 So. 2d 632

(Ala. 1992) (No. 91-1873).

C. This Case Is About Summary Judgment.

This case concerns whether the trial court properly en-

tered summary judgment in accordance with the stand-

ards in Rule 56 of the Alabama Rules of Civil Procedure.

Petitioner argues not only in the courts below but also to

this Court that he presented substantial evidence that

was sufficient to preclude summary judgment in the re-

spondents’ favor; however, the record shows otherwise.

It is uncontradicted that the lack of a hearing on the

academic grievances was due solely to petitioner’s re-

peated requests for an indefinite halt to the due process

proceedings. Nowhere in any of the evidence does peti-

tioner ever deny that he asked for delays in the hearings.

The courts below correctly concluded that there was no

basis for his academic grievance due process claim.

5 Petitioner claims his September 14, 1987 non-academic griev-

ance notified the University not to lose his final examination. How-

ever, that complaint does not reference either his final examination

or his grades. CR. at 598-601.

10

Petitioner also argues here and below that there are

material facts which support his equal protection claim.

Petitioner again points to no specific facts which would

show that there is an issue for trial.

Respondents’ undisputed evidence showed that the stu-

dents with whom petitioner compared himself to support

his equal protection claim were not similarly situated.

For example, petitioner alleges that unlike a female stu-

dent, he was not permitted to make-up the NLN

test. The record shows that to make-up a test, a stu-

dent must receive prior permission from the instructor.

CR. at 663. The female student who was allowed to take

the NLN test on a make-up date had requested permis-

sion to take the test at another time prior to the scheduled

test date. Deposition of Janice Nelson (11/27/90) at

38-39. Prior to the NLN test date, petitioner did not con-

tact any of his instructors to request permission to miss

the test and take it on another date. CR. at 663-64, 690.

Petitioner offered no evidence that female students who

waited until after the NLN test date to request a make-up

date were allowed to take the test on another date.

As another example, petitioner, who was academically

suspended at the end of the 1987 spring semester, as-

serts he was denied the same opportunity as two female

students to repeat a failed course. Yet, respondents’ un-

controverted evidence shows that the two female students

who were allowed to repeat Nursing 214 in the 1987

summer term were in good standing academically at the

University at the end of the 1987 spring term. CR. at

895-97. Petitioner produced no evidence that female stu-

dents who were academically suspended at the end of the

1987 spring term were permitted to repeat a course

during the summer semester.

Petitioner’s conspiracy claim fails because he offered

no material facts establishing his academic grievance due

process and equal protection claims. Therefore, summary

judgment on this count was correct.

11

D. Questions Raised Below.

In his motion to vacate, alter or amend the summary

judgment which was filed with the trial court, petitioner

raised the issue that the trial court had failed to consider

evidence which would have precluded summary judgment.

CR. at 985, 1012. After hearing this motion, the court

declined to rule, and after ninety days the motion was

denied procedurally. Ala. R. Civ. P. 59.1. On appeal to

the Supreme Court of Alabama, petitioner raised the

same question. Appellant’s Opening Brief at 16-17, Nel-

son v. University of Alabama Sys. (No. 1901633). The

Alabama Supreme Court affirmed the trial court’s entry

of summary judgment for the respondents.*

In the text of his application and brief for rehearing

to the Alabama Supreme Court petitioner for the first

time claims that the erroneous entry of summary judg-

ment constituted a deprivation of due process. Appel-

lant’s Application for Rehearing and Rehearing Brief

at 4, 57, Nelson v. University of Alabama Sys. (No.

1901633). The application for rehearing was denied

without opinion. Pet. at a-10-11.

REASONS FOR DENYING THE WRIT

Petitioner alleges that the entry of summary judgment

against him constitutes a denial of his right to a jury

trial. Petitioner further asserts that the lower courts

ignored evidence which establishes genuine issues for trial.

Petitioner’s contentions are unfounded in law and in fact.

I. SUMMARY JUDGMENT DOES NOT DENY ONE’S

RIGHT TO A JURY TRIAL.

Summary judgment is a proper method for disposing of

a case in which a trial is unnecessary, but only when there

are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. In one

sense, the purpose of summary judgment is to decide

® Review of summary judgment on appeal is de novo. Hightower

& Co. v. United States Fidelity and Guar. Co., 527 So. 2d 698 (Ala.

1988).

12

whether the non-moving party has a right to a jury trial.

When petitioner failed to establish the existence of any

genuine issues of material fact, a trial was unneeded.

Courts should exercise caution to avoid denying a non-

moving party a jury trial where disputed material facts

exist. But when a court is convinced that there are no

controverted material facts, then the court’s entry of

judgment against the non-moving party is proper and is

not a denial of that party’s right to a jury trial. See, e.g.,

Fidelity & Deposit Co. of Maryland v. United States to

Use of Smoot, 187 U.S. 315 (1902); Poller v. Columbia

Broadcasting Sys., Inc., 368 U.S. 464 (1962).

II. THE DECISION BELOW IS CORRECT.

The lower court correctly applied the summary judgment

standard outlined in Rule 56(c) of the Alabama Rules

of Civil Procedure. After respondents made a prima facie

showing that there were no disputed material facts and

that they were entitled to judgment as a matter of law,

the burden of production shifted to petitioner to establish

genuine issues of material fact. Ala. R. Civ. P. 56(e).

Petitioner failed to carry this burden.

Petitioner does not here or in the courts below articu-

late any specific material facts that would preclude sum-

mary judgment. As he did below, petitioner urges con-

sideration of the extensive extraneous evidence relating

to his non-academic grievances and the merits of his aca-

demic grievances as proof of the disputed material facts

supporting his claims, and points to nothing else. The

courts below properly found this evidence immaterial and

inadequate to preclude summary judgment.

Standards for granting summary judgment are well

settled. When the moving party makes a prima facie

showing that there are no genuine issues of material fact

and that it is entitled to judgment as a matter of law,

then in order to defeat the entry of summary judgment

the non-moving party must produce evidence to establish

13

the existence of material facts. See, e.g., Celotex Corp. v.

Catrett, 477 U.S. 317 (1986) ; Anderson v. Liberty Lobby,

Inc., 477 U.S. 242 (1986). Hammond v. Auburn Univer-

sity, 669 F. Supp. 1555 (M.D. Ala. 1987), aff'd 858 F.2d

744 (11th Cir. 1988), cert. denied, 106 S. Ct. 1134

(1989).

Petitioner has utterly failed to produce any evidence

which would preclude summary judgment. Respondents’

evidence of the initiation of the academic grievance pro-

cedures, of petitioner’s numerous requests for indefinite

delays in those procedures, of petitioner’s many com-

plaints against every University official involved in the

academic grievance process, and of the lack of similar-

ity between petitioner and other students who repeated

courses or tests stands uncontroverted by petitioner. Peti-

tioner has produced no evidence that he was entitled to a

hearing on his non-academic grievances, that he requested

the University to resume the academic grievance proce-

dures, or that any University official acted in any way,

individually or in concert with others, to deny petitioner

a hearing when he was rightfully entitled to one. Peti-

tioner’s allegations and conclusory statements to the con-

trary are powerless to preclude summary judgment.

See Lujan v. National Wildlife Fed’n, 110 S. Ct. 3177

(1990).

The decisions below also were fair. In December, 1987

petitioner availed himself of the opportunity to contest

a failing grade by initiating an academic grievance.

When he requested delays in that procedure, the Univer-

sity accommodated his wishes even though it was not

required to do so. Since the petitioner, not the Univer-

sity, sought and obtained a cessation of the due process

mechanism, he cannot now legitimately and in good faith

complain of unfair treatment. The lower courts’ deci-

sions confirm that petitioner was justly treated.

14

III. THIS CASE IS NOT IMPORTANT AND PRESENTS

NO SUBSTANTIAL FEDERAL ISSUES.

Petitioner asks this Court to review the factual find-

ings of the lower courts, but in doing so he does not

direct this Court’s attention to specific facts which estab-

lish a genuine issue of material fact. Rather, petitioner

urges this Court to sift through the entire record on the

chance it may discover a disputed material fact which

two other courts could not find.

A petition that merely asks for review of the suffi-

ciency of the evidence ignores this Court’s proper func-

tion. As Justice Frankfurter has admonished:

[T]he court in these four cases has merely re-

viewed evidence that has already been reviewed by

two lower courts, and doing so it ignores our stric-

tures to the bar that ‘We do not grant a certiorari to

review evidence and discuss specific facts.’ (citations

omitted).

Rogers v. Missouri Pac. R. R., 352 U.S. 500, 5387 (1957)

(Frankfurter, J., dissenting).

The courts below thoroughly reviewed the record in this

case. In the absence of obvious or exceptional errors,

this Court should refrain from reviewing the factual find-

ings of the lower courts. See Goodman v. Lukens Steel

Co., 482 U.S. 656 (1987).

This case does not present an important federal issue

that justifies review by this Court. The facts of the case

are unique to the parties involved, and the legal issues

have no broad public importance. The lower courts’ ap-

plication of the legal standards for summary judgment

is consistent with the decisions of other state courts of

last resort and U.S. courts of appeals. The summary judg-

ment cases cited by petitioner confirm that the law is

well settled. When a case will not resolve an unsettled

area of the law or address substantial or far-reaching

constitutional issues, certiorari should be denied. See

15

Rice v. Sioux City Memorial Park Cemetery, 349 U.S.

70 (1955).

CONCLUSION

The petition offers no compelling reasons for review by

this Court. No substantial constitutional issues are pre-

sented by the petition and the decisions by the lower

courts were correct.

In support of their summary judgment motion respond-

ents demonstrated that there were no issues for trial

and that they were entitled to judgment. When petitioner

did not produce the quantum of evidence necessary to

! establish disputed issues of material fact supporting his

claims, then the lower courts correctly concluded that

petitioner had no right to a trial on his allegations.

Justice Harlan has expressed the same sentiment:

[P]etitioner . . . was able to produce no evidence

to support his charges .... He should not be per-

mitted to proceed to trial just on the hope that in

the more formal atmosphere of the courtroom wit-

nesses will revise their testimony or that a clever

trial tactic will produce helpful evidence. Courts do

not exist to afford opportunities for such litigating

gambles. (citations omitted).

Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464,

468-69 (1962) (Harlan, J., dissenting).

For the foregoing reasons, the petition for certiorari

should be denied.

Respectfully submitted,

PAUL E. SKIDMORE *

GEORGE B. GORDON

Office of Counsel

THE UNIVERSITY OF ALABAMA

SYSTEM

P.O. Box 870106

Tuscaloosa, AL 35487-0106

(205) 348-5490

* Counsel of Record Attorneys for Respondents

June 1992

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APPENDIX

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APPENDIX

SUPREME COURT OF ALABAMA

OCTOBER TERM, 1991-92

1901633

JAMES DAVIS NELSON, JR.

V.

UNIVERSITY OF ALABAMA SYSTEM, et al.

Appeal from Tuscaloosa Circuit Court

(CV-89-409 )

_—_—_

SHORES, JUSTICE.

A former nursing student, James Davis Nelson, Jr.,

filed this action against the University of Alabama and

several of its faculty members and administrators on

April 26, 1989.' His suit sought monetary damages, re-

instatement in the University, and damages based on 42

1 The plaintiff’s complaint lists as defendants: “The University

of Alabama System, Trustees of the University of Alabama System,

and Trustees of the University of Alabama, Chairman, Hon. Gover-

nor Guy Hunt, Mr. Thomas Bar[t]lett, Former Chancellor, Mr. Sam

Earl Hobbs, Interim Chancellor, The University of Alabama, Dr.

Joab Thomas, Former President, Dr. Roger Sayers, Interim Presi-

dent, Dr. Douglas Jones, Vice-President Academic Affairs, Dr.

Donald Crump, Assistant Vice-President, Mr. Kenneth Goodwin,

Office of Counsel, Officially and Individually, Dr. Norma K. Mobley,

Former Dean, Capstone College of Nursing, Officially and Indi-

vidually, Dr. Janet Awtry, Dean, Capstone College of Nursing, Ms.

Janice Nelson, Course Leader Instructor, Officially and Individually,

and Ms. Marsha Adams, Assistant Professor of Nursing, Officially

and Individually,”

2a

U.S.C. § 1983 claims of denial of due process, denial of

equal protection (gender discrimination), and conspiracy.

The trial judge entered a summary judgment in favor of

the defendants. Nelson appealed. We affirm.

The record reflects that James Davis Nelson, Jr., en-

tered the University in the fall 1986 semester to pursue

a course in nursing. Because of poor grades, he was

placed on indefinite academic suspension at the end of the

fall semester. However, the University waived his sus-

pension and allowed him to enroll in nursing courses for

the 1987 spring semester. He enrolled in two courses—

Nursing 214, “Medication Calculations”; and Nursing

256, “Nursing Process.” At issue is his performance in

Nursing 256, a course that requires the student to ob-

tain a satisfactory evaluation in the clinical part of the

course and to sit for the National League of Nursing

Achievement Test. As a consequence of his poor academic

performance during the spring semester, he was again

placed upon indefinite academic suspension.

Following this suspension, Nelson complained to Dean

Mobley and Associate Dean Awtrey that the reason for

his failure was incompetence on the part of his profes-

sors. They advised him that he could file an academic

grievance under the University academic grievance pro-

cedure. On September 14, 1987, Nelson met with Dean

Mobley and gave her a written complaint in which he

asked that the University fire two professors. However,

Nelson did not submit a written academic grievance about

his grades until December 9, 1987. The record reflects

that a series of meetings and discovery procedures fol-

lowed. During this period, Nelson made repeated demands

for a delay in the grievance procedure. Nelson filed this

action on April 26, 1989.

The court heard motions for summary judgments by

both the plaintiff and the defendants. The judge entered

a summary judgment for the defendants, stating in his

order:

3a

“This cause came to be heard on February 19,

1991, on plaintiff’s motion for summary judgment

and defendant’s motion for summary judgment. Af-

ter reviewing all evidence submitted and arguments

and briefs of counsel, this court finds that although

there are disputed facts, there is no evidence of dis-

puted material facts. Defendants have presented sub-

stantial evidence rebutting plaintiff’s claims, and the

plaintiff has presented no substantial evidence in sup-

port of his claims of denial of due process, denial of

equal protection (gender discrimination), and civil

conspiracy, Therefore all defendants are entitled to

a summary judgment as to ail claims as a matter of

law, and it is ordered that summary judgment be

granted in favor of all defendants as to all of plain-

tiff’s claims. In so ordering, this court is making no

ruling as to the merits of plaintiff’s grievances, whick

have been filed against various officials of the Uni-

versity of Alabama, since those matters are not be-

fore this court, and are not ripe for review by a Cir-

cuit Court. Those grievances are still pending, and

the parties are encouraged to resolve those grievances

promptly without further delay.

“Costs of this action are taxed to the plaintiff for

which let execution issue.

“Ordered this 21st day of February, 1991.”

The issue before us is whether the trial court erred in

entering the summary judgment for the defendants. Rule

56, A. R. Civ. P., sets forth a two-tiered standard for de-

termining whether to enter a Summary judgment. In

order to enter a summary judgment, the trial court must

determine: 1) that there is no genuine issue of material

fact, and 2) that the moving party is entitled to a judg-

ment as a matter of law. In determining whether a sum-

mary judgment was properly entered, the reviewing —

court must view the evidence in a light most favorable to

the nonmovant. See Turner v. Systems Fuel, Inc., 475

4a

So.2d 589, 541 (Ala. 1985); Ryan v. Charles Townsend

Ford, Inc., 409 So.2d 784 (Ala. 1981). Rule 56 is read

in conjunction with the “substantial evidence rule”

(§ 12-21-12, Code 1975), for actions filed after June 11,

1987. See Bass v. SouthTrust Bank of Baldwin County,

538 So.2d 794, 797-98 (Ala. 1989). In order to defeat a

properly supported motion for summary judgment, the

plaintiff must present “substantial evidence,” i.e., “evi-

dence of such weight and quality that fair-minded per-

sons in the exercise of impartial judgment can reason-

ably infer the existence of the fact sought to be prov

West v. Founders Life Assurance Co. of Florida, 547

So.2d 870, 871 (Ala. 1989).

We have carefully examined the record in this case and

conclude that the judgment of the trial court should be

affirmed. The record in this case is lengthy, running to

five volumes; yet there is much extraneous matter and the

trial court correctly concluded that although there are

disputed facts, there is no evidence of disputed material

facts.

Nelson first contends that the defendants denied him

due process and discriminated against him because of his

gender. There is simply no evidence to substantiate this

claim. In fact, the evidence reflects that Nelson himself

requested that the academic grievance procedures be

halted, and he now claims the halt to be a denial of due

process to him.

Nelson further claims that the defendants conspired

to deny him a hearing on his academic grievances. He

presented no evidence to support this claim. A civil con-

spiracy requires a combination of two or more individuals

to accomplish an unlawful purpose or to accomplish a

lawful end by unlawful means. Barber v. Stephenson, 260

Ala. 151, 69 So.2d 251 (1953); Hidson v. Olin Corp., 527

So.2d 1288, 1285 (Ala. 1988). While it appears that Nel-

son’s contention-is_that University officials conspired to

shift his grievances among themselves and thus to deny

5a

him due process, the record reflects that any shifting of

Nelson’s academic grievances was due to Nelson’s own

actions. He has thus failed to show a wrong committed

upon which a claim of civil conspiracy could be based.

On a motion for summary judgment, when the movant

makes a prima facie showing that no genuine issue of

material fact exists and that the movant is entitled to a

judgment as a matter of law, as in the present case, the

burden shifts to the nonmovant to show “substantial evi-

dence” in support of his position. Bean v. Craig, 557

So.2d 1249, 1252 (Ala. 1990). The record reflects that, as

to each claim, Nelson failed to produce substantial evi-

dence to establish a genuine issue of material fact. A

summary judgment motion is not defeated by conclusory

allegations or speculation that fact issues exist, and bare

argument or conjecture will not satisfy the nonmoving

party’s burden to offer facts to defeat the motion. Wil-

liams v. Palmer, 277 Ala. 18, 168 So.2d 220 (1964) ;

Riggs v. Bell, 564 So.2d 882, 884 (Ala. 1990). Therefore,

the judgment of the trial court is due to be affirmed.

AFFIRMED.

Hornsby, C. J., and Maddox, Houston, and Kennedy,

JJ., concur.

6a

IN THE CIRCUIT COURT

FOR TUSCALOOSA COUNTY, ALABAMA

Civil Action No. CV89-409

JAMES DAVIS NELSON, JR.,

Plaintiff

vs

THE UNIVERSITY OF ALABAMA SYSTEM, et al.,

Defendants

NOTICE OF RULING

The defendant’s motion to dismiss being argued orally

on November 8, 1989 and briefs of counsel being consid-

ered it is hereby ordered as to each count separately:

COUNT I: Motion to Dismiss for failure to state a

claim granted in favor of all defendants on fraud claim.

COUNT II: Motion To Dismiss for failure to state

claim is granted in favor of all defendants. _

COUNT III: Motion To Dismiss for failure to state

claim is hereby granted as to all defendants.

COUNT IV: Motion To Dismiss for failure to state a

claim is hereby granted as to all defendants.

COUNT V: Motion To Dismiss for failure to state a

claim is hereby granted as to all defendants.

COUNT VI: Motion To Dismiss for failure to state a

claim denied as to defendants Dr. Donald Crump, Ken-

neth Goodwin, Dr. Norman Mobley, Dr. Janet Awtry,

Mrs. Janice Nelson, and Ms. Marsha Adams, and granted

as to all other defendants,

Be reeereerrriineatnens iemeanaaeeeaeatmaaiaitiie

7a

COUNT VII: Motion To Dismiss for failure to state

a claim denied as to defendants, University of Alabama,

Norma Mobley, Dr. Douglas Jones, Kenneth Goodwin, Dr.

Janet Awtry, Janice Nelson, Donald Crump, and Marsha

Adams, and granted as to all other defendants.

COUNT VIII: Motion To Dismiss denied as to de-

fendants, University of Alabama, Dr. Norma Mobley, Dr.

Janet Awtry, Mrs. Janice Nelson, and Mrs. Marsha

Adams and granted as to all other defendants.

This 28th day of December, 1989.

/s/ Thomas 8S. Wilson

Circuit Judge

Distribution:

Court file

Attorneys: Julia Asam

George B. Gordon/Stanley J. Murphy

Office file