Petition for Writ of Certiorari — Spell v. Regents of the University of California

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{,) Supreme Court, U.S

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001953 JUN 2 7 2001

: NO OFFICE OF THE CLERK

In The

Supreme Court of the United States

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ANGELA R. SPELL,

Petitioner,

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA;

ERNEST L. LEWIS; DONAL A. WALSH; D. ROBERTO

PAEZ, AND GEORGE A. KAYSEN,

Respondents.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

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James M. BrRADEN

Law Orrices oF JAMES M. BRADEN

44 Montgomery Street, Suite 1210

San Francisco, CA 94104

(415) 398-6865

Counsel of Record for

Petitioner Angela Spell

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Petitioner Angela Spell’s claims for racial, gender,

and disability discrimination in connection with her dis-

missal from the University of California at Davis Medical

School were dismissed on summary judgment after the

following events occurred: (1) Her attorney took no dis-

covery; (2) The district court denied Petitioner’s request,

to which defendants even stipulated, for an extension of

the discovery deadline; (3) The court also denied her

request to remove the attorney from the case; (4) The

attorney then failed to timely oppose defendants’ motion

for summary judgment; (5) The court then belatedly

removed the attorney and permitted Petitioner to oppose

pro se the summary judgment motion after continuing the

hearing date; (6) But Petitioner, who lacked legal training,

was unable to properly authenticate the substantial evi-

dence she had of disputed material facts that would

preclude summary judgment.

The district court implicitly, and the Ninth Circuit

Court of Appeals explicitly, held that any attorney error,

no matter how egregious, is an insufficient ground for

relief from summary judgment under FRCP Rule 60(b)(1)

and (6). >

The question presented is whether the district court

and the Ninth Circuit erred in holding that attorney error,

as a matter of law, is per se an insufficient ground for

relief from summary judgment under FRCP Rule 60(b)(1)

and (6).

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TABLE OF CONTENTS

Page

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Boi ee ft Mp re re re ry Ter ee er ee 1

STATEMENT OF JURISDICTION. ......0.<cccccsecee 1

STATUTORY PROVISIONS INVOLVED............. 2

STATEMENS GO TEGO GAGs 66 cc ss cckscccccnnioces 2

REASONS FOR GRANTING THE WRIT ........... 11

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TABLE OF AUTHORITIES

Page

Cases

Allmerica Financial Life Insurance & Annuity Co. v.

Llewellyn, 139 F.3d 664 (9th Cir. 1998)............. 16

Augusta Fiberglass Coatings, Inc. v. Fodor Contract-

ing Corp., 843 F.2d 808 (4th Cir. 1988)............. 14

Bohlin v. Banning Co., 6 F.3d 350 (5th Cir. 1993) ..... 17

Canfield v. Van Atta Buick/GMC Truck, Inc., 127 F.3d

TE MED oh ov ni vad dundee 6 shssb0eee cocoons 14

Castro v. Bd. of Ed. of the City of Chicago, 214 F.3d

I Mg od 60a wi cas bos netceewesdonsve 14

Cheney v. Anchor Glass Container Corp., 71 F.3d 848

ae hi i6icbh ssn 4ssdeeeindeeee Se 14

Engelson v. Burlington Northern R.R. Co., 972 F.2d

i nS a tank Vbaen ede 6000 isch sce vedss 16

Pelican Production Corp. v. Marino, 893 F.2d 1143

Ee Siw ckadav eb thaethandntndssastaecs 16

Pioneer Inv. Services v. Brunswick Assoc., 507 U.S.

ee BA ls BOP CAPM EDs 6 ccc ccdsckcicccaces passim

Pratt v. Philbrook, 109 F.3d 18 (1st Cir. 1997)......... 14

Servants of the Paracalete v. Does, 204 F.3d 1005

ME EWA 6654 Aven ks Cann shun ¥edoenevees 16

Stutson v. United States, 516 U.S. 193, 116 S.Ct. 600

a is a ON Ee Os 15, 16

iv

TABLE OF AUTHORITIES - Continued

Page

STATUTES

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ep Maa ae RR oi ne xhwddaneesd sess dnnevedseceuaney 2

@ ie fe RRR ry rere ee rey rem 2

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RuLEs

Bankruptcy Rule 9006(b)(1) ..«..........ccccsccscess 15

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Pe Be Gs obo heb ks dbo cadncnsn denkedeess passim

PETITION FOR A WRIT OF CERTIORARI

Petitioner Angela Spell (“Petitioner”) respectfully

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The district court’s opinion (per Hon. Garland E.

Burrell, Jr.) granting respondents’ motion for summary

judgment (Appendix (“Pet.App.” C-1 to C-20)), is an

unpublished opinion. Also unpublished are the district

court’s subsequent opinions denying Petitioner’s two

motions for reconsideration under Rules 59 and 60

(Pet.App. B-1 to B-4), the court of appeals’ opinion (per

Hon. Judges Wallace, Beezer and Fernandez) affirming

the district court’s order denying Petitioner’s motion for

reconsideration (Pet.App. A-1 to A-2), and the court of

appeals’ opinion denying Petitioner’s petition for a hear-

ing en banc (Pet.App. H-1).

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STATEMENT OF JURISDICTION

The Ninth Circuit Court of Appeals entered its opin-

ion and order on September 25, 2000, and denied rehear-

ing en banc on February 27, 2001. Justice O’Connor

subsequently extended time to file this petition for writ of

certiorari to and including June 27, 2001. Petitioner

invokes this Court’s jurisdiction under 28 U.S.C.

§ 1254(1). ;

STATUTORY PROVISIONS INVOLVED

Federal Rules of Civil Procedure, Rule 60(b) is rele-

vant to this petition.

STATEMENT OF THE CASE

Petitioner is an African-American woman who

attended the University of California at Davis Medical

School (“University”). Respondent The Regents of the

University of California (“Regents”) is a State of Califor-

nia public entity that operates the University. Respon-

dents Ernest L. Lewis, Donal A. Walsh, D. Roberto Paez,

and George A. Kaysen are administrators and/or faculty

members of Regents and the University.

Petitioner’s claims are based on racially discrimina-

tory disparate treatment, disparate impact, and retalia-

tion, in violation of Title VI of the Civil Rights Act of 1964

(42 U.S.C. § 2000d); on violations of the rights to equal

protection and due process of law under the Fourteenth

Amendment and to freedom of speech under the First

Amendment to the U.S. Constitution, as protected by 42

U.S.C. § 1983; on violation of the Americans With Disabil-

ities Act (42 U.S.C. § 12101) (failure to provide reasonable

accommodation for a learning disability); on Title IX gen-

der discrimination (20 U.S.C. § 1681); and on the Family

Educational Rights and Privacy Act (20 U.S.C. § 1232g).

Petitioner sought damages as well as preliminary and

permanent injunctive relief against respondents regard-

ing the expungement of substandard grades she received

as a result of respondents’ violations of the aforemen-

tioned laws.

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Because of the gross neglect of her case perpetrated

by Petitioner’s attorney Miles Washington, Petitioner was

unable to file any legally effective opposition to respon-

dents’ motion for summary judgment, which the district

court granted.

Washington began by failing to conduct any discov-

ery or attend critical depositions in the case. On Septem-

ber 18, 1998, twe!ve days before the close of discovery

(September 30), he informed Petitioner that he intended

to withdraw as counsel, and that he would secure an

extension of time regarding discovery cut-off dates only if

Petitioner stipulated to his withdrawal. Under that duress

from her attorney, Petitioner did so stipulate.

Armed with that agreement from Petitioner, Wash-

ington proposed to defendants’ counsel a substantial

extension of the discovery deadlines. Remarkably, defen-

dants’ counsel, Gordon & Rees - a respected San Fran-

cisco law firm that is well known for its aggressive

defense of litigation on behalf of the Regents - recognized

that it was only appropriate that Petitioner be allowed

additional time to conduct discovery if Petitioner was

going to be losing her attorney who had conducted no

discovery.

Indeed, on September 22, 1998, Gordon & Rees for-

warded the stipulation with Washington to the court

under cover of a letter stating that “Petitioner’s counsel,

Miles Washington, has indicated that he will be with-

drawing from this case, and Petitioner will represent

herself. For that reason, we enclose a stipulation to

extend the deadlines for expert disclosures, completion of

discovery, [and] hearings on dispositive motions.”

(Pet.App. I-1 to I-2; J-1 to J-2).

Amazingly, the district court, on September 30, 1998,

nevertheless denied the parties’ joint request to continue

the discovery deadlines, stating without giving any rea-

sons that the request was “not justified by good cause.”

(Pet.App. G-1). This was a manifest abuse of discretion

because defendants could not possibly be prejudiced by a

discovery extension that they had not only signed, but

had written a separate letter asking the court to approve.

Two days later, on October 2, 1998, attorney Washing-

ton asked the court to approve the stipulation for his

withdrawal from the case that he had extracted under

duress from Petitioner. The court, however, denied the

request on October 6 because it “was troubling [that] a

prior request indicated that Petitioner’s counsel failed to

conduct all desired discovery.” (Pet.App. F-1). The court

readily acknowledged that allowing Petitioner’s attorney

to withdraw “would force Petitioner to assume self-repre-

sentation at a critical stage of the proceeding . . . and the

request fails to address Ms. Spell’s awareness of this

plight.” (Pet.App. F-2). |

Petitioner was thus left with an attorney who had let

the discovery deadline pass without doing any discovery

work, whose stipulated discovery extension had been

rejected by the court, and who wanted to withdraw from

the case he had botched. Yet there was still time, if

Washington had begun to perform, for him at least to

take proper measures to be ready to oppose defendants’

inevitable motion for summary judgment.

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Because Petitioner lacked confidence that Washing-

ton really would protect her interest in the future, she

filed on October 23, 1998 her own motion to reopen

discovery and to remove Washington as her attorney.

However, the court on October 28 refused, for a second

time, to remove Washington as her attorney or to reopen

or extend discovery. (Pet.App. E-1 to E-4). Thus, Peti-

tioner was still stuck with an attorney who was doing

nothing to protect her interests.

What Petitioner did not know when she asked the

district court to remove Washington was that defendants

had filed, one week earlier on October 16, 1998, their

motion for summary judgment, which was noticed for

hearing on November 16. Petitioner’s opposition was due

November 2. In a further act of negligence and miscon-

duct that topped even his appalling previous record,

attorney Washington did not even bother to confer with

Petitioner until 4:00 in the afternoon of the due date,

November 2, regarding information from her necessary to

oppose the summary judgment motion! Accordingly, on

November 4, Petitioner filed her own pro se request that

the hearing date be continued, which the court did grant.

Having thus been provided with strong new grounds

to have Washington removed as her counsel, Petitioner

on November 16, 1998 once again asked the court for that

relief. Her three-page single-spaced letter made such a

compelling presentation of Washington’s negligence that

the court finally was persuaded, the next day on Novem-

ber 17, to remove Washington as counsel. The court noted

that Washington had placed Petitioner in an “untenable

situation,” and had “continued to do nothing but harm.”

In the same order, the court also granted Petitioner

until December 7, 1998 to file her opposition to defen-

dants’ motion for summary judgment. Petitioner did not

receive the court’s order until November 23, and thus had

only two weeks, acting pro se, to oppose a massive,

sophisticated summary judgment motion.

Petitioner did file her opposition to summary judg-

ment in pro se on December 7, and simultaneously

requested for a third time that discovery be reopened. For

the third time, however, the court denied her request,

stating that Petitioner had failed to state good cause for

reopening discovery under Rule 56. (Pet.App. C-1 to C-2,

n.1).

Because of Washington’s negligence in failing to

oppose defendants’ motion for summary judgment, and

the refusal of the district court to grant Petitioner’s more

than reasonable multiple requests for extension of discov-

ery deadlines (as, again, even defendants stipulated to in

light of Washington’s imminent withdrawal from the

case), Petitioner was forced to oppose defendant’s

motions pro se with only two weeks to do a job that she

was not trained to do. Not surprisingly, Petitioner simply

was not capable of preparing an effective summary judg-

ment opposition in that amount of time.

Thus, the district court granted summary judgment

because it deemed inadmissible official letters and other

documents from Petitioner setting forth the disputed

material facts that should preclude summary judgment.

Petitioner had, in fact, failed to submit evidence in the

appropriate evidentiary format. For example, she

attached letters written by witnesses to her own letter to

the court, rather than providing sworn declarations from

the authors of the letters affirming that they wrote them.

No competent attorney would have made this mistake.

Nevertheless, Petitioner’s evidence, while not prop-

erly presented in the format required for admissibility,

was indeed probative of her claims and did, at the very

least, indicate that there were important material facts in

dispute. This evidence included, inter alia, the following

letters from important witnesses who had personal

knowledge of the retaliation and discrimination Peti-

tioner faced at the hands of defendants: (1) A March 24,

1998 letter from a professor of U.C. Davis School of

Medicine asking that Petitioner’s dismissal from the

school be rescinded, as she was illegally placed on aca-

demic probation (Pet.App. K-1 to K-3); and (2) An April

30, 1997 letter from another professor of the School of

Medicine substantiating that Petitioner was “not given a

fair opportunity to demonstrate her skills and to learn”

(Pet.App. L-1 to L-3).

Petitioner also presented actual evidence (regardless

of whether it technically complied with the evidentiary

rules that lawyers know) that strongly corroborated these

professors’ favorable opinions. For example, she pre-

sented documentary evidence that she met national aca-

demic standards by passing her first medical board

licensing examination, including records from her

i national examination demonstrating proficiency in the

: nephrology course that the University used as a bogus

ground to dismiss her. Petitioner also presented records

indicating that she passed the very pediatrics course that

the University said she failed in order to justify its second

dismissal of her from the medical school.

This evidence, and many other items of evidence that

Petitioner was not able to present properly as a pro se

litigant, could easily have been presented by any mini-

mally diligent attorney who, unlike Washington, had

immediately informed his client on October 16, 1998

when the summary judgment motion was served that

proper opposition had to be filed within just over two

weeks. It is thus indisputable that the mistake or neglect

of attorney Washington constituted excusable neglect

insofar as holding Washington’s failure against Petitioner

was concerned.

Accordingly, after summary judgment was granted,

Petitioner filed on February 26, 1999, a Rule 60(b) motion

for relief therefrom, this time attaching the appropriate

declarations and evidence necessary to demonstrate dis-

puted issues of material fact that should preclude sum-

mary judgment. In addition to the two professors’ letters

noted above, Petitioner submitted a massive amount of

additional evidence, of which the following is merely a

small portion: Affidavits regarding white students who

acknowledged that they received preferential treatment;

an affidavit from another non-minority student stating

that she received many accommodations from the Univer-

sity, which were instrumental in her successfully com-

pleting the program; and several affidavits from minority

students delineating the discrimination that they faced at

the hands of the University.

However, the district court refused to consider this

evidence, stating that it could not deem it newly-found

evidence under Rule 60(b)(1), and that Rule 60 cannot be

used to reargue matters that previously were “argued

and disposed of” before the court. (Pet.App. B-3 to B-4).

In her legal memorandum in support of the Rule

60(b) motion, Petitioner plainly and clearly raised the

issue that Rule 60(b) relief can be granted, and should

have been granted to her, based on attorney error or

neglect. However, the district court’s opinion simply

ignores this argument. The opinion does explain that the

properly authenticated evidence belatedly presented by

Petitioner could have been presented in the original

opposition to summary judgment. But the court does not

address that it was attorney error by Washington that

caused that failure of presentation in the first place. By

failing even to address Petitioner’s attorney error point,

the court abused its discretion.

The Ninth Circuit justified the district court’s failure

even to address the attorney error issue by holding that,

as a matter of law, “attorney error is insufficient ground

for relief under both FRCP 60(b)(1) and (6).” (Pet.App.

A-1 to A-2). This ruling directly contradicts the United

States Supreme Court’s ruling in Pioneer Inv. Services v.

Brunswick Assoc., 507 U.S. 380, 113 S.Ct. 1489 (1993), that

attorney error or neglect certainly can be - though of

course it is not necessarily — grounds for relief under that

Rule. The Ninth Circuit’s ruling also is contrary to the

holdings of at least five other circuit courts of appeal that

have applied Pioneer to hold that attorney error or neglect

certainly can be remedied under Rule 60(b).}

1 The Ninth Circuit also ruled that Petitioner’s Rule 60(b)

motion should be denied because it “merely reiterated the

arguments that she had previously presented to the district

court.” But this is not an independent ground for the court’s

ruling, separate and apart from the insufficiency of attorney

error ruling. Rather, the precise point of this case is that

10

Under the rule of Pioneer, as applied in those five

other circuits, the district courts must apply certain equi-

table tests. Whether application of those tests should

result in Rule 60(b) relief in the instant case arguably is

an issue for determination upon remand after this Court’s

corrects the Ninth Circuit’s explicit, and the district

court’s implicit, errors of law. What cannot be disputed,

however, is that it is plain error to fail and refuse to make

any equitable evaluation at all, based on the notion that

attorney error cannot, as a matter of law, be a ground for

Rule 60(b) relief.

Because plain error was committed here, Petitioner

respectfully requests that this Court grant the petition for

writ of certiorari, summarily vacate the judgment of the

Ninth Circuit Court of Appeals without necessity for

briefing in this Court on the merits, and remand this case

to the Ninth Circuit for further consideration in light of

this Court’s decision in the Pioneer case that attorney

error can be a ground for relief from judgment under rule

60(b). Alternatively, the writ should be granted and the

case calendered for plenary review by full briefing and

oral argument.

Petitioner’s first filing, which the Ninth Circuit said the second

filing “merely reiterated,” was fatally flawed because of the

attorney error that the court held, as a matter of law, could not

be cured under Rule 60(b). Thus, the original attorney error

irrevocably doomed all further filings Petitioner could have

made.

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REASONS FOR GRANTING THE WRIT

The petition should be granted for four simple rea-

sons.

(1) This Court granted certiorari almost ten years

ago in Pioneer Inv. Services v. Brunswick Assoc., 507 U.S.

380, 113 S.Ct. 1489 (1993), to resolve a conflict among the

circuit courts as to whether attorney error could consti-

tute “excusable neglect” justifying relief from an adverse

judgment against the client. Id. at 387 & n.3. The Court’s

decision eight years ago appeared to make clear that the

answer is “Yes.” The very fact the Court once granted

plenary review on this question shows that it is of suffi-

cient intrinsic importance to be worthy of this Court’s

consideration on the merits. The Court must have

thought at the time that there was a pervasive national

problem of attorney neglect of their clients’ cases that

caused all manner of adverse consequences to the clients,

including entry of judgment against them. There is no

reason to think attorney conduct has substantially

improved in the past decade. Indeed, there is plenty of

evidence, as even quick perusal of the “attorney error”

case law will indicate, that it continues to be widespread

and may even have gotten worse.

(2) Attorney error that a client is not permitted to

correct through Rule 60(b) relief from judgment (or simi-

lar “excusable neglect” provisions under other federal

rules) is particularly pernicious when a malpractice

action against the offending attorney just will not afford

full relief. In the instant case, for example, a malpractice

action would not afford Petitioner the specific relief nec-

essary to make her whole. Petitioner sought declaratory

12

relief from the substandard grades she received because

of the University’s discrimination against her. Without

Rule 60(b) relief, these grades on her transcript have

stigmatized her, and will forever continue to stigmatize

her, as an incompetent person. Petitioner’s prospects for

securing acceptance at any other institution is nil, not to

mention that the improper grades will haunt her for the

rest of her professional career.

(3) This Court may have thought its 1993 decision

in Pioneer definitively determined that attorney error can

be grounds for relief under “excusable neglect” provi-

sions such as Rule 60(b). But at least three of the circuit

courts, including the Ninth Circuit in the instant case and

in two cases cited in the opinion below, apparently don’t

think that is so. On the other hand, at least five circuit

courts appear to have followed Pioneer in holding that

attorney error is grounds for Rule 60(b) “excusable

neglect” relief. This is a virtually classic case of “circuit

conflict” that is a presumptive basis for this Court to

grant the writ of certiorari. Even if this Court were now

writing on a clean slate, a five to three split among the

circuits would indicate that the Court should take the

matter up and settle it.

(4) But the Court is not writing on a clean slate

because, as noted above, the Court already perceived a

similar circuit split almost a decade ago and thought it

was resolving the matter. That some of the circuits are not

adhering to that resolution - as dramatically evidenced

by the Ninth Circuit’s bald statement below that attorney

may never be grounds for Rule 60(b) relief — suggests that

the Court does not even have to accept this case for full

oS el Oe Ok AS eR me me -

13

plenary review and attempt for a second time to resolve

the circuit split.

Rather, the Court could very reasonably grant the

petition for writ of certiorari, summarily vacate the judg-

ment of the Ninth Circuit, and remand for further pro-

ceedings consistent with the holding of Pioneer that

attorney error must be given full and fair review as an

equitable ground for Rule 60(b) relief in this case.

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LEGAL ARGUMENT

The Ninth Circuit Court of Appeals affirmed the

district court’s denial of Petitioner’s Rule 60(b) motion by

invoking a rule of law — that attorney error can never be

the basis for relief under Rule 60(b) from a judgment -

that is contrary to this Court’s ruling in Pioneer Inv.

Services v. Brunswick Assoc., 507 U.S. 380, 113 S.Ct. 1489

(1993). While a majority of the circuit courts have fol-

lowed Pioneer by holding that attorney error can be a

basis for relief, the Ninth Circuit, along with the Fifth and

Tenth Circuits, fails to follow Pioneer by establishing a per

se rule that attorney error can never qualify.

The Supreme Court should grant certiorari both to

resolve this substantial division of authority among the

circuits, and to clarify and reaffirm that this Court’s deci-

sion in Pioneer requires that the district courts give full

and fair consideration to claims of attorney error as a

basis for relief under Rule 60(b) from judgments.

14

Alternatively, because the district court and the

~ Ninth Circuit committed plain error in establishing a per

se rule that is foreclosed by the Pioneer decision, this

Court should grant certiorari and then summarily vacate

the judgment of the Ninth Circuit, without need for fur-

ther briefing or argument in this Court, and remand this

matter to the Ninth Circuit for further proceedings con-

sistent with Pioneer.

Rule 60(b)(1) provides that relief from judgment may

be obtained in the following instances: “mistake, inadver-

tence, surprise, or excusable neglect.” F.R.C.P., Rule

60(b)(1). Under the rubric of “excusable neglect,” courts

in at least five circuits held that attorney error may be

sufficient cause to grant relief from judgment. See, e.g.,

Pratt v. Philbrook, 109 F.3d 18, 19 (1st Cir. 1997); Canfield v.

Van Atta Buick/GMC Truck, Inc., 127 F.3d 248, 250 (2d Cir.

1997); Augusta Fiberglass Coatings, Inc. v. Fodor Contracting

Corp., 843 F.2d 808, 811 (4th Cir. 1988); Castro v. Bd. of Ed.

of the City of Chicago, 214 F.3d 932, 934 (7th Cir. 2000);

Cheney v. Anchor Glass Container Corp., 71 F.3d 848, 849

(11th Cir. 1996).

However, the Ninth Circuit in the instant case, fol-

lowing two prior decisions of that court that it cites, joins

the Fifth and Tenth Circuits in holding that attorney error

may never be a basis for Rule 60(b) relief from judgment.

These three circuits have thus failed to follow the teach-

ing of Pioneer.

In Pioneer, this Court held that a creditor should be

able to file his Proof of Claim late because his attorney

failed to inform him that he must file it by a date certain.

While acknowledging the general principle that the acts

a ,

15:

and omissions of an attorney are attributable to and bind

his or her clients, this Court clearly held that there cannot

be a per se rule that the attorney’s error must always

foreclose the client’s right to obtain relief from the conse-

quences of that error. Id. at 381.

In Pioneer, the creditor was granted relief on the basis

of Bankruptcy Rule 9006(b)(1) that allows courts to accept

late filings on the basis of “excusable neglect,” which also

is one of the predicates for relief from judgment con-

tained in Rule 60(b). Indeed, Pioneer explicitly linked the

bankruptcy rule with Rule 60(b): “[A]t least for the pur-

poses of Rule 60(b), ‘excusable neglect’ is understood to

encompass situations in which the failure to comply with

a filing deadline is attributable to negligence.” Id. at 394.

In 1996, three years after Pioneer, this Court made

clear that the Pioneer holding is not confined to the bank-

ruptcy field, as the United States had originally argued

before the Solicitor General reversed that position.

Rather, said the Court, the Pioneer principle applies as

well to client relief from the consequences of attorney

error (untimely appellate filing) under the similar “excus-

able neglect” provision of Rule 4 of the Federal Rules of

Appellate Procedure. Stutson v. United States, 516 U.S.

193, 197, 116 S.Ct. 600 (1996). Accordingly, just as we

primarily request here, the Stutson Court granted cer-

tiorari, summarily vacated the erroneous ruling of the

circuit court, and remanded for further consideration in

light of Pioneer. Id. at 197-98.

By parity of reasoning, if attorney error may afford a

basis for relief from judgment arising from attorney error

16

under the “excusable neglect” provision of the bank-

ruptcy rule and the appellate procedure rule, the same

legal principle should apply when “excusable neglect” is

used in Rule 60(b), as indeed this Court’s reference to

Rule 60(b) in the Pioneer decision has already indicated.

As noted above, at least five of the circuits appear, in

deciding Rule 60(b) attorney error cases, to have under-

stood this Court’s message from the Pioneer and Stutson

cases. But at least three other circuits, including the

Ninth, apparently have not understood the message. This

is rather surprising, given that this Court expressly

granted certiorari in Pioneer to resolve circuit conflict

existing almost ten years ago with respect to rules of

procedure such as Federal Rules of Appellate Procedure,

Rule 4(a)(5), Rule 60 and others regarding excusable

neglect. 507 U.S. at 387.

The Ninth Circuit’s erroneous ruling in the instant

case is thoroughly discussed above in this petition. The

two prior Ninth Circuit decisions the court cites -

Allmerica Financial Life Insurance & Annuity Co. v.

Llewellyn, 139 F.3d 664, 666 (9th Cir. 1998) and Engelson v.

Burlington Northern R.R. Co., 972 F.2d 1038, 1043-44 (9th

Cir. 1992) - apply the same incorrect per se rule that

attorney error cannot be Rule 60(b) excusable neglect.

The Tenth Circuit also got it wrong in Servants of the

Paracalete v. Does, 204 F.3d 1005, 1010 (10th Cir. 2000),

holding that confusion between local and lead counsel

regarding entry of judgment was insufficient under Rule

60(b)(1) to constitute excusable neglect in the context of

Rule 4(a)(5) of the Federal Rules of Appellate Procedure.

See also, Pelican Production Corp. v. Marino, 893 F.2d 1143,

17

1146 (10th Cir. 1990) (“carelessness by a litigant or his

counsel does not afford a basis for relief under Rule

60(b)(1)”). Similarly, the Fifth Circuit in Bohlin v. Banning

Co., 6 F.3d 350, 357 (5th Cir. 1993), held that “when the

reason asserted in justifying relief is one attributable

solely to counsel's carelessness with or misapprehension

of the law or the applicable rules of court”, relief on the

basis of Rule 60(b)(1) is improper.

This conflict among the circuits regarding relief from

attorney error speaks volumes about the enormous injus-

tice that visits many clients in this nation. The cases cited

above, including the instant case, apparently constitute

only a small fraction of the enormously distressing range

of attorney error that destroys the rights of diligent cli-

ents. The facts herein are particularly egregious in regard

to attorney Miles Washington’s dereliction of duty that

destroyed Petitioner’s case. But hers is far from the only

such case, and quite probably far from the worst such

case.

CONCLUSION

This Court almost a decade ago thought the problem

of clients being victimized by attorney error was perva-

sive enough for the Court to step in to provide some

guidance. The problem remains pervasive, but some dis-

trict and circuit courts are not getting the message.

Accordingly, the Court should once again step in, either

(a) by granting the petition and summarily reversing and

remanding to the Ninth Circuit and the district court for

full and fair consideration of Petitioner’s claim for relief

18

under Rule 60(b) from the judgment against her, or (b)

granting the petition and setting the matter for plenary

consideration through the regular briefing and argument

process in this Court.

Respectfully submitted,

James M. BrRADEN

Law Orrfices OF JAMES M. BRADEN

44 Montgomery Street, Suite 1210

San Francisco, CA 94104

(415) 398-6865

Counsel of Record for

Petitioner Angela Spell

ee a oe mee ee ee

A-1

APPENDIX A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 99-16216

D.C. No. CV-96-01472-GEB

ANGELA R. SPELL,

Plaintiff-Appellant,

MEMORANDUM}

(Filed Sep. 25, 2000)

V.

THE REGENTS OF THE

UNIVERSITY OF

CALIFORNIA; ERNEST

L. LEWIS; DONAL A.

WALSH; D. ROBERTO

PAEZ; GEORGE A. _

KAYSEN,

Defendants-Appellees.

wee eee ee wae wes wees wes

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Submitted September 11, 20002

Before: WALLACE, BEEZER, and FERNANDEZ, Circuit

Judges.

1 This disposition is not appropriate for publication and

may not be cited to or by the courts of this circuit except as may

be provided by 9th Cir. R. 36-3.

* The panel unanimously finds this case suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

Spell’s request for oral argument is denied.

A-2

Angela R. Spell appeals pro se the district court’s

order denying her motion pursuant to Federal Rule of

Civil Procedure 60(b). We have jurisdiction pursuant to 28

U.S.C. § 1291. We review for abuse of discretion the

denial of a Rule 60(b) motion for relief from judgment.

See Maraziti v. Thorpe, 52 F.3d 252, 253 (9th Cir. 1995), and

we affirm.

The district court did not abuse its discretion in

denying Spell’s motion for reconsideration because

“attorney error is insufficient grounds for relief under

both Rule 60(b)(1) and (6),” see American Fin. Life Ins. &

Annuity Co. v. Llewellyn, 139 F.3d 664, 666 (9th Cir. 1998);

Engleson v. Burlington N. R.R. Co., 972 F.2d 1038, 1043-44

(9th Cir. 1992), and because Spell’s Rule 60(b) motion

merely reiterated the arguments that she had previously

presented to the district court, see Maraziti, 52 F.3d at 255.

AFFIRMED.

B-1

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANGELA R. SPELL,

Plaintiff,

CIV-S-96-1472

GEB PAN

ORDER*

(Filed

May 12, 1999)

V.

THE REGENTS OF THE

UNIVERSITY OF CALIFORNIA;

ERNEST L. LEWIS; DONAL

A. WALSH; D. ROBERTO PAEZ;

and GEORGE A. KAYSEN,

Defendants.

eee eee eee eee eee

Pending are two motions by Plaintiff for reconsidera-

tion of the Order filed January 14, 1999, which granted

Defendants’ motion for summary judgment.! For the rea-

sons stated below, the motions are denied.

* This case was determined to be suitable for decision

without oral argument. L.R. 78-230(h).

1 On April 26, 1999, the hearing date on Plaintiff’s first

motion for reconsideration, Plaintiff sent a letter to the Court

requesting that the hearing on that motion be vacated in favor of

a hearing on a second motion for reconsideration which Plaintiff

proposed to be rescheduled for May 24, 1999. See Letter from A.

Spell to the Court of Apr. 26, 1999, at 2-3. However, since the

first motion had already been fully briefed and taken under

submission by the time the Court received Plaintiff’s April 26

letter, Plaintiff’s request to vacate the first hearing date is moot.

On April 28, 1999, Plaintiff noticed and filed a largely

duplicative second motion for reconsideration with a

B-2

“A district court may reconsider its grant of sum-

mary judgment under either Federal Rule of Civil Pro-

cedure 59(e) (motion to alter or amend a judgment) or

Rule 60(b) (relief from judgment).” School Dist. No. 1J,

Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

Cir. 1993). Under Rule 59(e), which expressly requires

that a motion to alter or amend a judgment must be

served no later than ten days after entry of judgment,

Plaintiff’s motions are time-barred. Judgment was

entered for Defendants on January 14, 1999. Plaintiff did

not file and serve her first motion until February 3, 1999,

and her second motion until April 28, 1999. Therefore, to

the extent the motions seek relief under Rule 59, they are

denied as untimely. See Carter v. United States, 973 F.2d

1479, 1488 (9th Cir. 1992).

“proposed” hearing date of May 24, 1999. In response,

Defendants’ attorney sent a letter to the Court requesting “an

order indicating whether or not this second motion for

reconsideration will be entertained by the court, and how we

should proceed further, if at all.” Letter from M. Bruno to the

Court dated May 5, 1999, at 2 (ordered to be filed concurrently

herewith). Plaintiff followed with a letter proposing a hearing

date of June 21, 1999, “on the original and all related motions”

and requesting “that the Court require the Defendants to send

all future mail service by certified mail with a return

receipt....” Letter from A. Spell to the Court dated May 7, 1999,

at 3 (ordered to be filed concurrently herewith). The parties are

admonished that “[o]riginal documents to be filed or lodged

shall not be mailed to the chambers of a Judge” in lieu of filing

or lodging as required by the Local Rules. L.R. 5-134(a). Given

the dispositions of Plaintiff’s motions for reconsideration, the

parties’ respective requests are denied as moot.

B-3

Under Rule 60(b) Plaintiff’s motions are timely, but to

obtain the relief she seeks, Plaintiff must demonstrate (1)

newly discovered evidence; (2) mistake, surprise, or

excusable neglect; (3) fraud; (4) a void judgment; (5) a

satisfied or discharged judgment; or (6) “ ‘extraordinary

circumstances’ which would justify relief.” ACandS, 5

F.3d at 1263; L.R. 78-230(k). Plaintiff fails to do this.

The evidence Plaintiff offers in support of her

motions does not constitute “newly discovered evidence”

within the meaning of Rule 60. “Evidence is not ‘newly

discovered’ . . . if it was in the moving party’s possession

at the time of trial or could have been discovered with

reasonable diligence.” Coastal Transfer Co. v. Toyota Motor

Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987). The major-

ity of affidavits and other documents Plaintiff offers as

“new evidence” predate the due date for Plaintiff’s sum-

mary judgment opposition papers. Plaintiff fails to satisfy

her burden of showing, as required in a motion for recon-

sideration of a grant of summary judgment based upon

newly discovered evidence, that the evidence she now

provides could not have been discovered and produced

at summary judgment. See Frederick S. Wyle Professional

Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 1985).

Instead, Plaintiff claims ignorance as a pro se litigant “of

the requirement for attachment of material evidence to

support each claim.” Pl.’s Opening Br. filed Apr. 28, 1999,

at 22. However, “pro se litigants must follow the same

rules of procedure that govern other litigants.” King v.

Ativeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff’s failure

to timely file documents in opposition to summary judg-

ment “does not turn the late filed documents into ‘newly

discovered evidence.’ ” ACandS, 5 F.3d at 1263.

B-4

Nor has Plaintiff otherwise demonstrated why the

Court should reconsider the January 14 Order. The argu-

ments Plaintiff offers in support of her position are essen-

tially restatements of prior arguments. “A motion for

reconsideration is not to be used as a means to reargue

matters already argued and disposed of” or as an attempt

to relitigate “a point of disagreement between the Court

and the litigant.” Wave v. First Citizen's Nat'l Bank, 846 F.

Supp. 310, 314 n.3 (M.D. Pa.), aff'd, 31 F.3d 1175 (3d Cir.

1994). In sum, because Plaintiff’s motions for reconsidera-

tion do not present the type of newly discovered evidence

or other “extraordinary circumstance” that would war-

rant disturbing the judgment in favor of Defendants

under Rule 60(b), they are denied. See Maraziti v. Thorpe,

52 F.3d 252, 254-55 (9th Cir. 1995).

No motions for reconsideration, rehearing, clarifica-

tion, stay, or any other submissions shall be filed or

entertained in this closed docket.

IT IS SO ORDERED.

DATED: May 12, 1999

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

UNITED STATES DISTRICT

JUDGE

C-1

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANGELA R. SPELL, ) CIV S-96-1472 GEB PAN

Plaintiffs, ORDER*

V. (Filed Jan. 14, 1999)

THE REGENTS OF THE

UNIVERSITY OF

CALIFORNIA, ERNEST L.

LEWIS, DONAL A.

WALSH, D. ROBERTO

PAEZ, and GEORGE A.

KAYSEN,

Defendants.

ee ee ee es ae ws

Defendants the Regents of the University of Califor-

nia (“Regents”), Ernest L. Lewis (“Lewis”), Donal A.

Walsh (“Walsh”), D. Roberto Paez (“Paez”), and George

A. Kaysen (“Kaysen”) move for summary adjudication of

each of Plaintiff’s nine causes of action. Plaintiff opposes

the motion.! For the reasons stated below, the motion is

granted.

* This case was determined to be suitable for decision

without oral argument. L.R. 78-230(h).

1 As a preliminary matter, Plaintiff requests “an extension

of discovery time for additional document requests,

interrogatories and to depose [] four witnesses of the Court

deems this necessary, just and proper in order for the plaintiff to

further oppose Defendant’s Motion for Summary Judgment.”

See Pl.’s Opp’n at 2. Plaintiff’s request is denied for at least two

separate reasons.

C-2

First, Plaintiff fails to demonstrate that her request is

justified by good cause. As Plaintiff was informed in the Order

filed October 28, 1998, modification of deadlines imposed in a

scheduling order issued under Federal Rule of Civil Procedure

16, requires a showing that the requested modification is

justified by good cause. Since the time for conducting discovery

has passed under the applicable Rule 16 orders, Plaintiff was

required to show that reopening discovery is supported by good

cause. “Rule 16(b)’s“good cause’ standard primarily considers

the diligence of the party seeking the amendment. . . . If that

party was not diligent, the inquiry should end.” Johnson v.

Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Here,

Plaintiff faults her previous attorney’s failure to conduct

“professional discovery,” see Pl.’s Opp’n at 2, but as Plaintiff

was informed in the October 28 Order, “as a general rule an

attorney’s blunder binds his client.” See Order filed Oct. 28,

1998, at 3 (quoting Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315 (1st

Cir. 1998)). Since Plaintiff has failed to show that even through

the exercise of diligence she could not meet the deadline in the

Rule 16 scheduling order, the inquiry should end. See Johnson,

975 F.2d at 609. Furthermore, “the movant cannot complain if

[she] fails to pursue discovery diligently before summary

judgment.” Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439,

1442 (9th Cir. 1986).

Second, Plaintiff failed to provide an affidavit setting forth

particular facts expected from discovery and she failed to show

how the proposed discovery would preclude summary

adjudication of any issue. “References in memoranda and

declarations to a need for discovery do not qualify as motions

under [Federal] Rule [of Civil Procedural] 56(f).” Brae, 790 F.2d

at 1443. Rather, Rule 56(f) requires litigants to submit affidavits

setting forth the particular facts expected from further

discovery. “Failure to comply with the requirements of Rule

56(f) is a proper ground for denying discovery and proceeding

to summary judgment.” Id.

C-3

I.

BACKGROUND

Plaintiff, who is an African-American female,

enrolled at the University of California, Davis School of

Medicine (“UCDSOM”) in September 1991. During the

first quarter there, Plaintiff proposed and UCDSOM

accepted that she be allowed to “split” her first-year

course load, making her eligible for a Doctor of Medicine

degree in five years instead of four. At the end of the first

quarter, Plaintiff took her Psychiatry final examination

late. At the end of her second quarter, Plaintiff took the

Physiology final examination late. During the fourth

quarter, she sought to take a Pathology midterm examina-

tion late but elected to drop the course instead.

During the Fall quarter of her second year at

UCDSOM, on the day of the Hematology final examina-

tion, Plaintiff requested that Dr. Frederick Meyers, chief

of the Oncology/Hematology division, postpone the

examination. Plaintiff cited personal problems involving

a domestic violence situation a week and a half earlier as

the reason for her unpreparedness to sit for the éxamina-

tion as scheduled. Dr. Meyers rescheduled Plaintiff's

examination for the following Monday. Plaintiff traveled

to San Francisco on the Saturday before the rescheduled

examination to go dancing with friends at a nightclub

and did not return home until Sunday, and on Monday,

immediately before the rescheduled examination was to

commence, Plaintiff telephoned Dr. Meyers to request an

“incomplete” in Hematology. Dr. Meyers insisted that

C-4

Plaintiff take the examination, as rescheduled, but Plain-

tiff refused, after which time she was assigned an “F” or

failing grade in the course.

As a result of having received the failing grade,

Plaintiff was called before the Student Evaluation Sub-

committee (“SEC”), which recommended that Plaintiff be

allowed to repeat Hematology and placed on academic

probation until the end of the quarter following the quar-

ter in which she was to remediate her deficiency. Plaintiff

then applied to retroactively drop Hematology but was

refused because her application was late.

In the Winter quarter of her second year at

UCDSOM, after receiving a “D” grade on the Neurologi-

cal Core examination as well as the re-examination and a

“Y” grade in her Family Practice Preceptorship, which

indicates work in progress of non-passing quality, Plain-

tiff was called before the SEC again. The SEC recom-

mended that Plaintiff take a leave of absence and

required her to repeat her second year in its entirety and

to remain on probation until she completed her second

year curriculum.

In the Fall quarter of her third year, Plaintiff earned

one “B” and two “C” grades. In the Winter quarter,

Plaintiff requested postponement of her Pharmacology

final examination but failed the examination when she

did take it, as rescheduled. On a re-examination, Plaintiff

earned a “C” grade in the class.

In the Fall quarter of Plaintiff’s fourth year at

UCDSOM, Plaintiff was diagnosed with a learning dis-

ability for which the University’s Disability Resource

Center prescribed additional time on tests and suggested

C-5

that Plaintiff use audio-taped books to assist in her read-

ing.

In the Spring quarter of Plaintiff's fourth year, on the

day of the Nephrology final examination, Plaintiff

requested that Defendant Dr. Kaysen postpone the exam-

ination for her, citing recent housing difficulties occa-

sioned by purchasing a new home as the reason for her

unpreparedness. Dr. Kaysen assured Plaintiff that she

would do well on the examination if she had attended:

classes and studied the materials, but Plaintiff indicated

to him that she had not. Dr. Kaysen required Plaintiff to

take the exarnination, which she failed. The re-examina-

tion was scheduled for June 21, 1995, five days after

Plaintiff sat for the four-day United States Medical

Licensing Examination (“USMLE’”), step I. After the third

day of the USMLE, Plaintiff learned that her son was

missing. Plaintiff completed the fourth day of the USMLE

and learned her son’s whereabouts either the next day or

the day after. On June 20, 1995, Plaintiff’s then-fiancé

called Defendant Associate Dean Lewis to explain the

situation and to request rescheduling of the already-

rescheduled Nephrology examination. Plaintiff herself

did not contact Dean Lewis. The postponement was

denied, and Plaintiff failed the re-examination.

Plaintiff was then called before the SEC a third time,

and the SEC recommended that she be allowed to retake

the Nephrology examination and to gain credit by exam-

ination. The Promotions Board considered the SEC’s rec-

ommendation but determined, in view of Plaintiff’s

record in its entirety, that Plaintiff should be dismissed.

Plaintiff was dismissed on July 31, 1995.

C-6

Plaintiff appealed her dismissal and was reinstated

on the basis of “clemency,” which carried with it certain

conditions, including no further delays in her academic

schedule, as she had yet to complete the curriculum of

the second year, and that she remain on probation for the

remainder of her medical school career. Plaintiff re-

entered UCDSOM in March 1996 and received a “Y”

grade in her Pediatrics rotation, having received both an

“Unsatisfactory” on the hospital component and a failing

grade on the nationally standardized written examina-

tion.

After Plaintiff received these grades, she was called

once more before the SEC, which made a series of recom-

mendations short of dismissal. The Promotions Board

rejected these recommendations and unanimously voted

to dismiss Plaintiff, after considering her entire record.

Plaintiff was dismissed on November 25, 1996. She

applied for an extension of her registration pending

appeal of her dismissal, which was denied.

On August 14, 1996, Plaintiff filed this action. She

alleges claims under 42 U.S.C. § 1983 (“section 1983”), 42

U.S.C. § 2000d, et seq. (“Title VI”), 20 U.S.C. § 1681 (“Title

IX”), 29 U.S.C. § 794 (“Rehabilitation Act”), 42 U.S.C.

§ 12101, et seq. (“Americans with Disabilities” or

“ADA”), and 20 U.S.C. § 1232g (“Family Educational

Rights and Privacy Act” or “FERPA”).

Il.

STANDARD OF REVIEW

Summary judgment is proper where no genuine issue

exists as to any material fact and the movant is entitled to

C-7

judgment as a matter of law. Fed. R. Civ. P. 56(c). Viewing

the evidence in the light most favorable to the nonmo-

vant, the court must determine whether the movant has

demonstrated the absence of any genuine issue of mate-

rial fact. State of Alaska v. United States, 754 F.2d 851, 853

(9th Cir.), cert. denied, 474 U.S. 968 (1985).

Once the movant has made a prima facie showing

that no genuine issue exists as to any material fact, the

burden of showing otherwise shifts to the nonmovant.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986);

Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp.,

475 U.S. 574, 585-87 (1986). The nonmovant must then

affirmatively establish a genuine issue of material fact as

to each element for which it has the burden of proof.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

nonmovant cannot avoid summary judgment simply by

resting on its pleadings or relying on mere allegations or

denials” where it bears the burden of showing a genuine

issue of material fact. Fed. R. Civ. P. 56(e); Gasaway v.

Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir.

1994). In short, where the record could not lead a rational

trier of fact to find for the nonmovant, there is no genuine

issue for trial and summary judgment must be granted.

Matsushita, 475 U.S. at 585-87.

HI.

ANALYSIS

A. Individual Liability Under Title VI and Title IX

The individual Defendants seek summary judgment

on Plaintiff’s claims under Title VI and Title IX, arguing

C-8

that neither statute permits actions against individuals.

Although Plaintiff contends that individual liability

under these statutes was decided in this Court’s order

filed October 31, 1997, this argument both misconstrues

the order and misses the mark.? As the Supreme Court

noted in Cannon v. University of Chicago, 441 U.S. 677, 695

(1979), both statutes prohibit discrimination by educa-

tional institutions, and both provide administrative

remedies for ending federal aid to institutions which

discriminate. Thus, the goal of both Title VI and Title IX is

to prevent institutional discrimination, and only the insti-

tutional recipients of federal funds, as opposed to indi-

viduals, may be sued for damages. See Lipsett v. University

of Puerto Rico, 864 F.2d 881, 901 (1st Cir. 1988); Doe v.

Petaluma City Sch. Dist., 830 F. Supp. 1560, 1576-77 (N.D.

Cal. 1993), rev'd on other grounds, 54 F.3d 1447 (9th Cir.

_1995). Accordingly, the individual Defendants are

granted summary judgment on Plaintiff’s claims under

Title VI and Title IX.

B. Race Discrimination Under Title VI

The Regents argue that Plaintiff's claim of race dis-

crimination under Title VI must fail because she cannot

show that she was dismissed from UCDSOM without

valid cause, nor can she show that other, similarly situ-

ated non-minority students were treated differently. See

2 The order dismissed Plaintiff’s claim under Title IX as

against the individual Defendants, stating that the Supreme

Court has not recognized an implied cause of action against

individuals under Title IX. See Order filed Oct. 31, 1997, at 3.

C-9

Defs.’ Mot. at 25. Plaintiff counters that disputed facts

regarding more favorable treatment of non-minority stu-

dents make summary adjudication of Plaintiff’s Title VI

race discrimination claim inappropriate. See Pl.’s Opp’n

at 5.

“In Guardians Association v. Civil Service Commission of

City of New York, 463 U.S. 582, 103 S.Ct. 3221, 77 L.Ed.2d

866 (1983), a majority of the Court held that a violation of

Title VI required proof of discriminatory intent.” Larry P.

v. Riles, 793 F.2d 969, 981 (9th Cir. 1986). The Regents have

presented evidence unrefuted by Plaintiff that demon-

strates purely academic reasons for the alleged adverse

actions Plaintiff experienced. For example, before decid-

ing to dismiss her, “the Promotions Board carefully and

deliberately considered [Plaintiff’s] entire record [at

UCDSOM] and came to the conclusion that she had not

demonstrated the personal and academic responsibility

necessary to complete the medical school curriculum and

to function as a safe and responsible physician.” See

Lewis Decl., J 21. Indeed, Plaintiff had failed three

courses, despite numerous postponements of final exam-

inations, had taken a leave of absence, was on academic

probation for the majority of her medical school career,

and by the time she was dismissed the second time, had

been “subject to dismissal twice before, dismissed once,

and reinstated but still showed the same problems which

plagued her earlier.” Id. at WL 16, 17, 18, 21.

Although Plaintiff contends that “[e]vidence exists

showing a pattern of more favorable treatment for white

students to accommodate personal exigencies,” see Pl.’s

Opp’n at 5, she has failed to proffer such evidence. Plain-

tiff styles her response to Defendants’ undisputed facts as

C-10

a declaration, but the incidents she recounts as evidence

of more favorable treatment of non-minority medical stu-

dents are not based on personal knowledge, and only

declarations based on personal knowledge can be consid-

ered on summary judgment. See Fed. R. Civ. P. 56(e)

(affidavits supporting summary judgment must be based

on personal knowledge); Lujan v. National Wildlife Federa-

tion, 497 U.S. 871, 888 (1990) (stating that the object of

Federal Rule of Civil Procedure 56(d) “is not to replace

conclusory allegations of the complaint or answer with

conclusory allegations of an affidavit”). Similarly, while

Plaintiff catalogues numerous “racist and abusive

remarks” allegedly made about others by Lewis, see Pl.’s

Decl. of Disputed Facts at 15-18, and “racist statements”

allegedly made about Plaintiff by Walsh, see id. at 12-13,

these statements are all inadmissible hearsay.? See Fed. R.

Civ. P. 56(e).

The Supreme Court has admonished that “[w]hen

judges are asked to review the substance of a genuinely

academic decision, . . . they should show great respect for

the faculty’s professional judgment [and] may not over-

ride it unless it is such a substantial departure from

accepted academic norms as to demonstrate that the per-

son or committee responsible did not actually exercise

professional judgment.” Regents of the University of Michi-

gan v. Ewing, 474 U.S. 214, 225 (1985). Here, the evidence

3 Plaintiff’s failure to produce admissible evidence may be

attributable to her pro se status; however, “[p]ro se litigants must

follow the same rules of procedure that govern other litigants.”

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).

cect ttt, CCE CTC TEC TT

C-11

shows that Plaintiff’s unsatisfactory grades and dis-

missals from UCDSOM were academic decisions that did

not not depart from the accepted academic norms,-and

Plaintiff’s “[mJere conclusory assertions of discrimina-

tory intent . . . cannot be sufficient to avert summary

judgment.” Lindsey v. Shalmy, 29 F.3d 1382, 1385 (9th Cir.

1994). Accordingly, the Regents are granted summary

adjudication of Plaintiff’s claim of race discrimination

under Title VI.

C. Gender Discrimination under Title IX

The Regents next argue that Plaintiff has failed to

raise a triable issue of fact of gender discrimination under

Title IX. The pertinent provision of Title IX provides that:

“No person in the United States shall, on the basis of sex,

be excluded from participation in, be denied the benefits

of, or be subjected to discrimination under any education

program or activity receiving Federal financial assis-

tance....” 20 U.S.C. § 1681(a). Thus, in order to prevail

on a Title IX claim for gender discrimination, Plaintiff

must show that the Regents discriminated against her

because of her gender.

Plaintiff has not made this showing. As with the

evidence Plaintiff proffers in support of her race discrimi-

nation claim, none of the evidence she proffers in support

of her gender discrimination claim is admissible. See, ¢.g.,

Pl.’s Decl. of Disputed Facts at 11. Moreover, the Regents

have produced unrefuted evidence showing that the aca-

demic treatment Plaintiff received at UCDSOM resulted

from Plaintiff's own academic shortcomings and was

C-12

unrelated to her gender, see Lewis decl., { 21, and Plain-

tiff has failed to produce evidence demonstrating that

these purely academic decisions should be disturbed. See

Ewing, 474 U.S. at 226 (stating that federal courts are “far

less . . suited to evaluate the substance of the multitude

of academic decisions that are made daily by faculty

members of public educational institutions — decisions

that require ‘an expert evaluation of cumulative informa-

tion and are not readily adapted to the procedural tools

of judicial or administrative decisionmaking’ ”). Accord-

ingly, the Regents are granted summary adjudication of

Plaintiff’s claim of gender discrimination under Title IX.

D. Retaliation Claim under Title VI and First Amend-

ment Claim

Although Defendants concede that Plaintiff engaged

in protected activity prior to her dismissal and denial of

an extension on her registration, Defendants argue that

they are entitled to summary adjudication of Plaintiff’s

Title VI retaliation claim and her First Amendment claim

because Plaintiff cannot establish a causal connection

between the protected activities and the adverse actions.

Plaintiff counters that “Telvidence exists showing a clear

causal link between [her] protected activity and retalia-

tory academic treatment.” See Pl.’s Opp’n at 3.

Title VI prohibits retaliation by a recipient of federal

funds against any individual for exercising rights under

Title VI. 34 C.ER. § 100.7(e). Although Plaintiff alleges a

separate cause of action under section 1983 for violation

of the First Amendment arising out of Defendants’

allegedly retaliatory acts against her for complaining of

ies me ch nA cht i A lanl te ATE ERE 6 ett.

C-13

disparate treatment, because the substance of Plaintiff’s

First Amendment cause of action and her cause of action

for retaliation under Title VI are the same, they are

analyzed together. A plaintiff may establish a prima facie

case of retaliation by showing that (1) she engaged or was

engaging in activity protected under Title VI, (2) the

defendant subjected her to an adverse action, and (3)

there was a causal link between the protected activity and

the defendant’s action. Yartzoff v. Thomas, 809 F.2d 1371,

1375 (9th Cir. 1987) (Title VII case); see Smith v. Barton, 914

F.2d 1330, 1336 (9th Cir. 1990) (stating that courts look to

Title VII to determine appropriate rules under Title VI).

Here, Plaintiff has failed to produce any admissible

evidence demonstrating a causal connection between pro-

tected activity in which she engaged and Defendants’

adverse actions. Rather, the evidence reveals that, despite

demonstrated leniency on the part of Defendants in

accommodating Plaintiff’s various difficulties, Plaintiff

was unable to meet the academic standards of a medical

student. Regardless of Plaintiff’s protected activities, “it

nevertheless remains true that [her] dismissal from

[UCDSOM] rested on an academic judgment that is not

beyond the pale of reasoned academic decision-making

when viewed against the background of [her] entire

career at [UCDSOM].” Ewing, 474 U.S. at 228. Therefore,

Defendants are granted summary adjudication of Plain-

tiff’s Title VI retaliation claim and section 1983 claim for

violation of the First Amendment.

C-14

E. Disparate Impact Claim under Title VI

The Regents next argue that they are entitled to sum-

mary adjudication on Plaintiff’s disparate impact claim.

First, the Regents argue that since Plaintiff is challenging

title VI itself, rather than the regulations designed to

implement the purposes of Title VI, Plaintiff’s claim of

disparate impact must fail because there can be no cause

of action for unintentional discrimination or disparate

impact under Title VI itself. See Defs.’ Mot. at 32. Second,

the Regents argue that even if Plaintiff’s claim were con-

strued as a claim to enforce Title VI’s regulations, it

would fail because the Regents have demonstrated an

educational necessity for enforcing academic standards.

See id. at 34. The Regents are correct on both arguments.

First, “Title VI itself directly reache[s] only instances

of intentional discrimination,” and Plaintiff has not sued

to enforce the statute’s regulations. Alexander v. Choate,

469 U.S. 287, 293 (1985). Second, even assuming Plaintiff’s

claim of disparate impact could be construed as a cause

of action brought to enforce the regulations, Plaintiff’s

claim still fails because it is factually unsupported. The

statistics Plaintiff proffers in support of this claim consti-

tute impermissible lay opinion or expert opinion by an

unqualified expert. Fed. R. Evid. 701, 702, 703. An “expert

opinion may defeat summary judgment if it appears the

expert is competent to give an opinion and the factual

basis for the opinion is disclosed” but an opinion “not of

sufficient quantum or quality [will not] create genuine

issues of material fact.” Triton Energy Corp. v. Square D

Co., 68 F.3d 1216, 1222 (9th Cir. 1995). Since Plaintiff's

C-15

opinion regarding enrollment trends in California medi-

cal schools is not “based upon specific facts,” the infer-

ences of disparate impact that Plaintiff seeks to draw

from it “are not of sufficient quantum or quality to create

genuine issues of material fact.” Id. Finally, even assum-

ing Plaintiff established a prima facie case of discrimina-

tory impact, the Regents have demonstrated that the

academic standards Plaintiff is apparently challenging

have “educational necessity,” Board of Education v. Harris,

444 U.S. 130, 151 (1979), to wit, ultimately “putting into

the community doctors who are competent to safely prac-

tice medicine and treat patients,” see Defs.’ Mot. at 35. As

the Supreme Court observed in Ewing, it is appropriate

for a university to conclude that a particular student’s

“sensitivity to difficulties in [her] personal life suggested

an inability to handle the stress inherent in a career in

medicine.” Ewing, 474 U.S. at 228 n.13. Therefore, the

Regents are granted summary adjudication of Plaintiff’s

Title VI claim of disparate impact.

F. FERPA Violations

Defendants next argue that summary adjudication

must be granted on Plaintiff’s FERPA cause of action

because she has not alleged an actionable violation of any

rights secured by FERPA. Plaintiff counters that her

FERPA claim should go to trial.

FERPA requires federally funded educational institu-

tions to provide post-secondary students an opportunity

to inspect their educational records and to have a hearing

to challenge alleged inaccuracies in the same and to con-

sent to release of information contained therein. 20 U.S.C.

Se ee een eT” |

C-16

§ 1232g(d). Here, Plaintiff alleges not that Defendants

denied her the right to inspect her records but the right to

“timely inspect” them. See P].’s Second Am. Compl., { 80.

However, FERPA secures no such right. See 20 U.S.C.

§ 1232g(a)(1)(A) (“No funds . . . shall be made available to

any State educational agency . . . that has a policy of

denying, or effectively prevents . . . students the right to

inspect and review education records . . . ”) (emphasis

added); see also Smith v. Duquesne Univ., 612 F. Supp. 72,

79 (W.D. Pa. 1985) (“The underlying purpose of FERPA

was not to grant individual students a right to privacy or

access to educational records, but to stem the growing

policy of so many institutions to carelessly release stu-

dent records.”). Plaintiff further contends that Defen-

dants’ alleged refusal to place certain items in her

academic record constitutes barring her from correcting

her record. See Pl.’s Second Am. Compl., {{ 40c, 54, 59.

However, the right secured by FERPA is to challenge the

accuracy of the record in a hearing, see 20 U.S.C.

§ 1232g(2), and Plaintiff has failed to present evidence

that she was denied this right. In fact, the evidence shows

that Plaintiff was offered the opportunity to review her

file after she complained items were missing from it. See

Lewis Decl., Exh. G. Finally, Plaintiff contends that the

confidentiality of her records was breached. See P1.’s Decl.

of Disputed Facts at 97. However, no private right of

action exists for confidentiality violations under FERPA;

instead, FERPA provides expressly that the Secretary of

Education is responsible for enforcing its provisions and

protections. Norris by Norris v. Board of Educ. of Greenwood

Community School Corp., 797 F. Supp. 1452, 1465 (S.D. Ind.

1992). Accordingly, Defendants are granted summary

C-17

adjudication of Plaintiff’s section 1983 claim for alleged

violations of FERPA.

G. Due Process Claims

Next, Defendants argue that summary adjudication

of Plaintiff’s due process claims is proper because Plain-

tiff cannot show a deprivation of this right. Plaintiff

claims that she was denied due process when she was

denied proper academic advising, placed and kept on

probation, assigned unsatisfactory or substandard

grades, and dismissed from UCDSOM. See Pl.’s Second

Am. Compl., [J 84-86.

Plaintiff, however, fails to proffer evidence of any of

these alleged violations, and in light of the “narrow ave-

nue for judicial review” of academic decisions, see Ewing,

474 U.S. at 227, the evidence in this case reveals no

aberrations from the accepted academic norms. Indeed,

like Mr. Ewing, who was also a disappointed medical

student, Plaintiff “accumulated an unenviable academic

record characterized by low grades, [ ] incompletes, and

several terms during which [s]he was on an irregular or

reduced course load.” Id. The evidence shows that Plain-

tiff’s professors did accommodate some of her requests to

postpone examinations and allowed her to re-take exam-

inations she had failed.4 The evidence also shows that

Plaintiff was accorded the Opportunity to be heard at

each of the SEC meetings at which she was advised of the

* It should be noted that Plaintiff sued the one professor,

Dr. Kaysen, who required her to sit for the examination as

scheduled.

4."

C-18

consequences of being unable to meet the academic stan-

dards of UCDSOM. Although she complains of not hav-

ing received adequate instruction on certain policy

options regarding grade changes, it is undisputed that all

UCDSOM policy options are described in “The Rules of

the Game,” a booklet Plaintiff received upon first arriving

at UCDSOM but did not read until it was too late. See

Dep. of Angela Spell at 272. Although she alleges that she

was assigned unsatisfactory or substandard grades, there

is no evidence that Plaintiff received these grades for

anything other than her performance. Finally, when

Plaintiff was dismissed from UCDSOM the second time,

after having been reinstated subject to certain conditions,

“It]he ultimate decision to dismiss [her] was careful and

deliberate.” Board of Curators of the University of Missouri

v. Horowitz, 435 U.S. 78, 85 (1978). Plaintiff was “awarded

at least as much due process as the Fourteenth Amend-

ment requires.” Id. Accordingly, Defendants are granted

summary adjudication on Plaintiff’s due process claims.

H. ADA and Rehabilitation Act Claims>

Lastly, Defendants argue that.summary adjudication

on Plaintiff’s ADA and Rehabilitation Act claims must be

granted because Plaintiff cannot establish a prima facie

5 Since Rehabilitation Act law is “widely used to interpret

reasonable accommodation under the ADA,” Plaintiff’s claims

under the ADA and the Rehabilitation Act are analyzed

together. Barnett v. U.S. Air, Inc., 157 F.3d at 750 (9th Cir. 1998);

see also Kirkingburg v. Albertson's, Inc., 143 F.3d 1228, 1234 (9th

Cir. 1998) (stating that the ADA is “modeled after” the

Rehabilitation Act).

C-19

case of disability discrimination. Plaintiff counters that

the mere fact of her diagnoses with post-traumatic stress

disorder and a learning disability bars summary adjudi-

cation of these claims.

To establish a prima facie case of disability discrimi-

nation, Plaintiff must show that (1) she was an individual

with a disability (2) who was otherwise qualified and (3)

who was denied participation in a program or activity

receiving federal funds (4) solely because of her disabil-

ity. Smith, 914 F.2d at 1338. For the Purposes of this

motion, Defendants do not dispute that Plaintiff was an

“individual with a disability”; rather, they argue that

Plaintiff cannot show that she was “otherwise qualfied”

for retention at UCDSOM at the time of her dismissal. See

Defs.’ Mot. at 52. To be “otherwise qualified” for reten-

tion, Plaintiff must be capable of satisfying the academic

and technical requirements set by UCDSOM with the aid

of reasonable accommodations. 45 C.F.R. § 84.3(k)(3). It is

Plaintiff’s burden to establish the existence of a reason-

able accommodation that would have enabled her to meet

the UCDSOM program requirements. Barnett, 157 F.3d at

749. Plaintiff, however, has failed to establish the exis-

tence of a reasonable accommodation that would have

allowed her to meet the requirements. Indeed, Plaintiff's

repeated difficulties demonstrate that she could not, in

fact, meet those requirements. Furthermore, as Defen-

dants argue, Plaintiff’s failures which led to her dis-

missals “had nothing whatsoever to do with her

disability but were occasioned by her personal life.” See

Defs.’ Mot. at 54. Plaintiff herself cited various personal

problems including a domestic violence situation

and housing difficulties as the reasons behind her

C-20

unpreparedness to sit for scheduled examination, and

after her Hematology examination was rescheduled,

Plaintiff traveled to San Francisco to go dancing and then

refused to take the examination as rescheduled. The evi-

dence suggests that unless UCDSOM’s academic stan-

dards were substantially lowered, Plaintiff could not

continue to participate in the medical training program

from which she was dismissed. The Supreme Court has

made clear that “[s]Jection 504 [of the Rehabilitation Act]

imposes no requirement upon an educational institution

to lower or to effect substantial modifications of stan-

dards to accommodate a handicapped person.” South-

eastern Community College v. Davis, 442 U.S. 397, 413

(1979). Accordingly, Defendants are granted summary

adjudication of Plaintiff’s claims under the Rehabilitation

Act and the ADA.

IV.

CONCLUSION

For the foregoing reasons, Defendants are granted

summary judgment on Plaintiff’s entire complaint. The

Clerk of the Court is directed to enter judgment in favor

of Defendants and against Plaintiff.

IT IS SO ORDERED.

DATED: January 8, 1998

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

UNITED STATES

DISTRICT JUDGE

D-1

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

CIV-S-96-1472

GEB

ORDER

(Filed

Nov. 17, 1998)

ANGELA R. SPELL,

Plaintiff,

vV.

THE REGENTS OF THE

UNIVERSITY OF CALIFORNIA,

et al.,

Defendants.

Ne eee ee ee ee ee

By letter filed November 16, 1998, Plaintiff requests

that she be relieved of attorney Miles Washington's repre-

sentation. See Letter from Angela R. Spell to the Court of

Nov. 16, 1998. Specifically, she requests that “the Court []

consider that although it may have acted in the interest of

duty not to leave [her] the plaintiff in a ‘predicament,’ the

Court[’s] most recent orders regarding representation

have forced [Plaintiff] to proceed with an untenable situa-

tion that is potentially irreparable.” See id. at 3. Plaintiff

states that “[t]he current representation has placed [her]

in a position where [her] attorney has continued to do

nothing but do harm.” See id. (emphasis in original).

Plaintiff notes that Mr. Washington failed to oppose

Defendants’ pending motion for summary judgment and

has otherwise “continued to fail to perform his duty to

his client.” See id. at 2.

In light of the foregoing, Plaintiff’s request is

granted. Plaintiff shall file and serve her opposition to the

pending motion for summary judgment by December 7,

D-2

1998, and reply papers, if any, shall be filed and served by

December 14, 1998. See L.R. 78-230. The matter will then

be deemed submitted on the parties’ papers. The final

pretrial conference currently scheduled for December 14,

1998, is continued to January 11, 1999, at 3:30 p.m.

IT IS SO ORDERED.

Dated: November 17, 1998

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

E-1

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANGELA R. SPELL, NO. CV

Plaintiff, S-96-1472 GEB

ORDER

V.

(Filed

THE REGENTS OF THE

UNIVERSITY OF CALIFORNIA,

Defendant.

Oct. 28, 1998)

Plaintiff Angela R. Spell filed an unnoticed motion on

October 23, 1998, “to reopen discovery and to be relieved

of [her] attorney of record.”! Ms. Spell seeks to modify

the Status (Pretrial Scheduling) Order that was issued on

September 24, 1997, and supplemented on October 1,

1997.2 The parties stipulated to modify the discovery

1 An “unnoticed motion” typically remains unnoticed in

the case file until the motion is brought to a judge’s attention.

Such motions do not have to be considered since they violate

Local Rule 78-230. The fact that Ms. Spell filed such a motion

and violated a local rule indicates the difficulty she may

experience in trying to prosecute this lawsuit without counsel.

Part of her motion nonetheless seeks to discharge her counsel.

Since Ms. Spell’s request to be relieved of counsel appears

contingent upon her ability to both reopen discovery and

modify other dates entered under Rule 16 of the Federal Rules

of Civil Procedure, however, and since she has not

demonstrated that the Rule 16 Order should be modified, her

request to discharge her counsel is denied.

2 Plaintiff’s present counsel assumed her representation on

May 19, 1998, and stipulated with opposing counsel to change

esr recco Cre cee Rea ee eo

E-2

deadline in the Rule 16 Order filed September 24, 1997,

by extending it to September 30, 1998. That stipulation

was approved by Order filed August 3, 1998.

Rule 16 was drafted to assure the Court and the

parties that “at some point both the parties and the

pleadings will be fixed.” Advis. Comm. Notes for 1983

Amend. Consistent with the Rule’s intent, Rule 16 sched-

uling orders “control the subsequent course of the action

unless modified by the court.” Johnson v. Mammoth Recre-

ations, Inc., 975 F.2d 604, 608 (9th Cir. 1992). Such orders

“may be modified upon a showing of ‘good cause.’ ” Id.

Rule 16(b)’s “good cause” standard primarily

considers the diligence of the party seeking the

amendment. The district court may modify the

pretrial schedule “if it cannot reasonably be met

despite the diligence of the party seeking the

extension.” Moreover, carelessness is not com-

patible with a finding of diligence and offers no

reason for a grant of relief. Although the exis-

tence or degree of prejudice to the party oppo-

sing the modification might supply additional

reasons to deny a motion, the focus of the

inquiry is upon the moving party’s reasons for

seeking modification. If that-party was not dili-

gent, the inquiry should end.

Id. at 609 (citations omitted).

Ms. Spell fails to demonstrate good cause for her

belated motion to amend. First, she points to her lawyer’s

purported failure to conduct discovery. Even assuming

her lawyer did not diligently undertake discovery prior

certain dates in the September 24 Rule 16 Order which was

ordered on August 3, 1998.

ani tear,

E-3

tei Be vires A awit

to the Rule 16 deadline, however, Ms. Spell fails to show

why her lawyer’s lack of diligence constitutes good

cause. “[A]s a general rule an attorney’s blunder binds

[his] client.” Rosario-Diaz v. Gonzalez, 140 F.3d 312, 315

(1st Cir. 1998); In re Hill, 775 F.2d 1385, 1387 (9th Cir.

1985) (where the court reveals that sometimes the faults

of attorneys and their consequences are visited upon

clients).

Second, Ms. Spell indicates she may seek an amend-

ment of her claims. Given the delay of her proposed

addition of claims to this action, however, and the fact

that the delay appears to have been within her control,

Ms. Spell has not demonstrated that good cause justifies

allowing her to amend her claims.

Third, Ms. Spell states she “is tentatively scheduled

for neurosurgery during the month of October regarding

an occupational injury.” She does not explain, however,

why her surgery was scheduled for October; nor does she

explain what she means by “tentatively scheduled.” Nor

does she show how her surgery might interfere with her

lawyer’s representation of her, or her representation of

herself, should she subsequently decide to proceed with-

out counsel. For instance, she does not state whether the

six-week post-operative recovery would place her outside

of communication with her lawyer; nor does she reveal

whether the post-operative recovery would affect her

ability to think about her case or access documents.? This

RS teh Sahitya aah leet

3 Nor has she provided proof supporting the occupational

injury, tentative surgery, and the physician’s prognosis.

.

E-4

showing does not constitute good cause justifying

amendment of the Rule 16 Order.

She concludes her motion by asking that “discovery

be reopened and extended eight months,” that law and

motion then follow the reopened discovery period, and

that she be afforded time to obtain new counsel, to amend

her complaint with new facts, and to explore whether she

should add other plaintiffs to her action. Ms. Spell simply

fails to demonstrate good cause to justify modifying the

Rule 16 Order as she requests. “[L]itigants have an

unflagging duty to comply with clearly communicated

case-management orders, and this duty extends even to

litigants who proceed pro se.” Rosario-Diaz, 140 F.3d at

315.

For the stated reasons, the motion is denied.

IT IS SO ORDERED.

Dated: October 28, 1998

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

UNITED STATES DISTRICT

JUDGE

nce) ee te hatte ote Mm sSiats BOP Yt Vth nw wt

AE AS i, Sh nit NOS BANS od Oh dot

F-1]

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANGELA R. SPELL,

CIV. S-96-1472 GEB

Plaintiff,

ORDER

Vs.

(Filed

THE REGENTS OF THE Oct. 6, 1998)

UNIVERSITY OF CALIFORNIA,

et al.,

Defendants.

eee eee eee eee eee “Se”

The law firm of John L. Burris seeks to withdraw as

attorney of record for Plaintiff Angela R. Spell and to

substitute Ms. Spell as plaintiff in propria persona pursuant

to the “stipulation” and proposed order Plaintiff lodged

October 2, 1998. The withdrawal request is denied with-

out prejudice for the following reasons.

This request is troubling becauSe a prior request indi-

cated that Plaintiff’s counsel failed to conduct all desired

discovery. Thus, it is unclear whether Ms. Spell assumes

that granting the request will entitle her to reopen discov-

ery and modify other Rule 16 deadlines. Prior to submit-

ting the October 2 request, Plaintiff’s counsel

unsuccessfully tried to change the discovery cut-off date

through a stipulation which stated at that time:

Plaintiff’s counsel has indicated that he will

withdraw from this case and the plaintiff,

Angela Spell, has apparently agreed. In

response to plaintiff’s Counsel’s request that

F-2

additional time be allowed for discovery and, in

recognition that additional time will be needed

for the hearing date on the dispositive motions

and the pretrial conference if the discovery

deadlines are moved, the parties hereby stipu-

late to the following discovery cutoff dates. . . .

Stipulation and [Proposed] Order at 1. Although it

appears that granting the motion now would force Plain-

tiff to assume self-representation at a critical stage of the

proceeding, after the discovery cut-off date has passed

and as the last hearing date for law and motion matters

looms, the request fails to address Ms. Spell’s awareness

of this plight. It is thus unclear whether she would favor

the withdrawal request if she fully understood the litiga-

tion predicament she will face without counsel if it is

granted.

Since the request neither addresses Ms. Spell’s

awareness of her predicament without counsel nor pro-

vides reasons sufficient to justify the withdrawal at this

late stage of the proceeding, it is denied without preju-

dice.

IT IS SO ORDERED.

DATED: October 5, 1998

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

G-1

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ANGELA R. SPELL,

Bis CV S-96-1472

Plaintiff, GEB/PAN

bi ORDER

THE REGENTS OF THE :

(Filed

UNIVERSITY OF CALIFORNIA,

as Sep. 30, 1998)

Defendants.

eee eee eee ee SN

The parties’ request to modify the September 24,

1997, Status (Pretrial Scheduling) Order is not justified by

good cause and is therefore denied.

j IT IS SO ORDERED.

DATED: September 28, 1998

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

i United States District Judge

H-1

APPENDIX H

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WALSH; D. ROBERTO PAEZ;

GEORGE A. KAYSEN,

Defendants-Appellees.

Feb. 27, 2001)

) cs

ANGELA R. SPELL, iesiiisinsceiae

pe ) DC# CV-96-01472-

Plaintiff-Appellant, ) GEB

V. ) Eastern California

THE REGENTS OF THE ) (Sacramento)

UNIVERSITY OF CALIFORNIA; ) ORDER

ERNEST L. LEWIS; DONAL A. )

) (Filed

)

)

)

~-—"

Before: WALLACE, BEEZER and FERNANDEZ, Circuit

Judges

The panel has voted to deny appellant’s petition for

panel rehearing.

Judge Fernandez has voted to deny the petition for

rehearing en banc, and Judges Wallace and Beezer so

recommend. .

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. See Fed. R. App. P.

33.

The petition for panel rehearing and petition for

rehearing en banc are denied. No further filings shall be

accepted in this closed appeal.

I-1

APPENDIX I

LAW OFFICES

GorDon & REEs, LLP

TWENTIETH FLOOR

EMBARCADERO CENTER WEST

275 BATTERY STREET

SAN FRANCISCO, CALIFORNIA 94111

(415) 986-5900

FAX (415) 956-8054

September 22, 1998

Honorable Garland E. Burrell

Judge «f the United States District Court

Eastern District

650 Capitol Mall

Sacramento, CA 95814

Re: Spell v. The Regents of the University

of California

U.S. District Court, Eastern District

Case No. CIV-S-96 1472 GEB

Dear Judge Burrell:

Plaintiff's counsel, Miles Washington, has indicated

that he will be withdrawing from this case, and the

plaintiff will represent herself. For that reason, we

enclose a stipulation to extend the deadlines for expert

disclosures, completion of discovery, hearings on disposi-

tive motions, and a continuation of the pretrial confer-

ence.

If the enclosed stipulation is acceptable, I would

appreciate your signing the order and having your clerk

I-2

return an endorsed “filed” copy to me. I will serve the

stipulation and order cn plaintiff’s counsel.

Very truly yours,

GORDON & REES, LLP

/s/ Michael D. Bruno

Michael D. Bruno

Enclosure

cc: Miles Washington

J-1

APPENDIX J

MICHAEL T. LUCEY (SBN 099927)

GRETA W. SCHNETZLER (SBN 121100)

MICHAEL D. BRUNO (SBN 166805)

GORDON & REES, LLP

275 Battery Street, Twentieth Floor

San Francisco, CA 94111

Telephone: (415) 986-5900

Attorneys for Defendants

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,

ERNEST E. LEWIS DONAL A. WALSH, D. ROBERTO

PAEZ, and GEORGE A. KAYSEN

UNITED STATES DISTRICT COURT -—

EASTERN DISTRICT OF CALIFORNIA i

ANGELA R. SPELL, ) CASE NO. CIV-S-96 1472

Plaintiff, ) GEB

= ‘ STIPULATION AND

[PROPOSED] ORDER

THE REGENTS OF THE ?

UNIVERSITY OF )

CALIFORNIA, et al.,

Defendants. )

)

Plaintiff’s counsel has indicated that he will with-

draw from this case and the plaintiff, Angela Spell, has

apparently agreed. In response to plaintiff’s counsel’s

request that additional time be allowed for discovery

and, in recognition that additional time will be needed

for the hearing date on the dispositive motions and the

pretrial conference if the discovery deadlines are moved,

J-2

the parties hereby stipulate to the following discovery

cutoff dates and request that this Court order the same:

Expert disclosures: October 15, 1998;

Completion of all discovery: November 16, 1998;

Dispositive motions hearing deadline: January

20, 1999;

Pretrial conference: February 1, 1999.

This Court has signed previous orders granting

extensions of time which were necessitated by plaintiff,

who was previously pro se, hiring attorneys.

IT IS SO STIPULATED.

DATED: September 18, 1998

GORDON & REES, LLP

By /s/ Michael D. Bruno

Michael D. Bruno

Attorneys for Defendants

THE REGENTS OF THE

UNIVERSITY OF CALIFORNIA,

ERNEST E. LEWIS, DONAL A.

WALSH, D. ROBERTO PAEZ,

and GEORGE A. KAYSEN

DATED: September 19, 1998

LAW OFFICES OF JOHN BURRIS

By /s/ Miles Washington

Miles Washington

Attorney for Plaintiff

J-3

ORDER

Good cause appearing therefor, it is hereby ordered

that expert disclosures will be due on October 15, 1998.

The date by which all discovery is to be completed is

November 16, 1998. Dispositive motions must be heard

by January 20, 1999. The pretrial conference is continued

to February 1, 1999.

DATED: , 1998

GARLAND E. BURRELL

Judge of the United States

District Court

K-1

APPENDIX K

“EXHIBIT A”

UNIVERSITY OF CALIFORNIA, DAVIS

[Address Omitted In Printing]

In Confidence

March 24, 1998

Joseph Silva, M.D., Dean

University of California

School of Medicine

Davis, CA 95616

Re: Angela Spell’s Appeal of Dismissal

Dear Dr. Silva,

I am writing in support of Ms. Angela Spell’s appeal

of her dismissal from our school of Medicine, November,

1996. I support her appeal based on the fact that she was

being held illegally on probation at the time she received

a “Y” grade in Pediatrics. Even if she had received an

“unsatisfactory” for her performance on the wards part of

Pediatrics, a point that is now in dispute and one which I

have no first hand information about, she should have

been removed from probation by the time she took Pedi-

atrics because she had already remediated a past defi-

ciency nearly two quarters earlier. This is but one more

example of how the application of our flawed operational

policies regarding “extended probation beyond remedia-

tion” has been applied in an arbitrary way to abet disrup-

tion of our medical students education. In this specific

case, had Ms. Spell not been given a “life sentence” on

probation upon her re-instatement in March, 1996, she

would not have been on probation during the Pediatric

K-2

clerkship and, consequently, not subject to dismissal

without a hearing after receiving the “Y” grade. Simply

stated, had Ms. Spell not been put in “double jeopardy”

by having been given the illegal “life sentence”, we

would not need to be addressing her appeal today.

As you know from my past correspondence, I have

argued since Fall, 1995 when I first became aware of this

egregious problem, that our “extended probation beyond

remediation” for some, but not all of our students on

probation was discriminatory, inappropriate, unjust and

illegal. In this specific case I believe that the decision to

dismiss Ms. Spell was procedurally in error, and as a

consequence, dismissal violated her rights and privileges

under our Faculty Regulations, Section 80 (A) (2).

According to this regulation Ms. Spell should not have

been considered to be on academic probation during the

Summer Quarter, 1996, since she had already remediated

her earlier deficiency, and therefore not subject to dis-

missal. Thus, I allege that a procedural error was made by

the School of Medicine when we did not follow our own

rules in effect at the time Ms. Spell had been admitted,

and that this action violated her rights and privileges as a

medical student. Accordingly, I recommend that as Dean

you rescind the decision to dismiss and ve-instate Ms.

Spell so that she can seek a transfer without the stigma

and bias of being a dismissed student.

~ I should also like to respectfully note that while

University Counsel has apparently indicated that the

inclusion of the word “may” in our Faculty Regulation

80 (A) (3) gives the Promotion Board “discretionary

authority” or “leeway” in whether an “individual should

remain on probation,” (Redacted Minutes of the FEC,

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10/10/96), that this interpretation is not in the best inter-

est of our school, its students or faculty, or in the spirit of

Reg. 80 (A) (2). I submit that to adhere to this interpreta-

tion as a way to justify placing students on permanent

probation is a policy that attempts to make an illegal act

legal.

I would be pleased to discuss any aspect of this letter

with you at your convenience.

Sincerely yours,

/s/ Frederic A. Troy II

Frederic A. Troy II

Professor

cc. A. Spell

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APPENDIX L

“EXHIBIT B”

April 30, 1997

Appeals Committee

School of Medicine University of California, Davis

Davis, California 95616

To whom it may concern:

The purpose of this letter is to state my support of

the appeal of Angela Spell for reinstatement to the School

of Medicine. As you are aware Angela was dismissed

from the school in 1995, readmitted in 1996, and subse-

quently dismissed a second time in 1996. The reason for

her dismissal was that she was not passed on a Pediatrics

clerkship while being on probation for prior academic

difficulties. All prior academic difficulties had been reme-

diated by the time of her beginning her clerkship in

Pediatrics, however. This letter reflects both an appeal to

reinstate Ms. Spell as a medical student at UC Davis

Medical School as well as a request that the school con-

sider changing its policy on long term probation of stu-

dents with academic difficulty. That policy unfairly

weighs against students who have remediated past prob-

lems.

When Angela Spell was readmitted to the School of

Medicine in 1996 she began by completing a required

course in nephrology, thus clearing her prior academic

deficit. She performed well in this course and became

eligible to enter her third year clerkships. She deferred

taking her first clerkship in July 1996 because her son was

visiting from Africa and she felt could not leave him -

unattended during his brief visit to the United States. At

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the time of her reinstatement, Ms. Spell was eligible for

and dependent on continuation of financial aid as she

had been in years past. However that financial aid was

held up. It became a critical issue for her as her financial

concerns escalated and actively interfered with her per-

formance on the Pediatrics ward. Only when the decision

was made to dismiss her from school was the financial

aid crisis resolved and part of her loan released to her.

However, by this time the damage had been done.

My support for Ms. Spell’s requested reinstatement is

focused on two elements: First, that Angela Spell was not

provided the financial aid that she deserved and merited,

a distraction which denied her a fair chance to succeed at

UC Davis. Second, a due process and procedural error

may have occurred at the Department of Pediatrics eval-

uation of Ms. Spell’s performance on the clerkship. It is

my understanding that the evaluation committee at Pedi-

atrics considered Ms. Spell’s performance on the National

Board Examination rather than focusing solely on her

performance on the wards and in the outpatient settings.

Disclosure of her written score was a breach of confiden-

tiality. Without consideration of the National Board exam-

ination and upon review of written evaluations, it would

appear that Ms. Spell had performed at a passing level at

this clerkship, even though this performance took place

while she was distracted on a nearly daily basis with

efforts required to recover her financial aid.

Thus I believe Ms. Spell has not been given a fair

opportunity to demonstrate her skills and to learn as a

medical student in her third year at UC Davis Medical

School. I believe she deserves reinstatement. However, I

do not believe it is possible for her to have a positive

o Ca Se Se eee

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experience at the University of California, Davis. For this

reason, I am recommending that she institute transfer to

another institution upon her reinstatement. Only in that

way can she have a clean slate to allow pursuing and

completing her clinical training which I believe Ms. Spell

deserves.

Sincerely,

/s/ E. J. Callahan

Edward J. Callahan, Ph. D.

Professor

EJC/gd