A federal judge from the District of Arizona has dismissed the claim of a student athlete, who sued the Arizona Board of Regents and other defendants affiliated with Arizona State University for race discrimination.
The court reasoned that the statute of limitations had expired.
Plaintiff Gerald Flunder was a walk-on member of the ASU’s football team in 2007. He was cut after failing to meet the team’s academic standards, but rejoined the team in 2008.
Unfortunately, during practice on November 19, 2008, he suffered a serious left-knee injury that included torn ligaments and damage to the peroneal nerve.
A sports medicine consultant to ASU’s athletics teams, examined the plaintiff’s knee and immediately expressed concern about damage to the peroneal nerve. He allegedly said that if the nerve failed to regenerate after surgery, Flunder’s football career would be over.
In the ensuing weeks, the plaintiff was seen by other doctors affiliated with ASU, all of which found some peroneal nerve damage.
On December 12, 2008, the first doctor performed surgery on Flunder’s knee. While in some respects the surgery was deemed a success, symptoms of nerve damage persisted. An additional surgery was performed on the plaintiff’s knee on October 8, 2009 to remove scar tissue that had formed around the nerve and had allegedly prevented it from regenerating.
Flunder alleged that he was cleared to start jogging in June 2010, but that this clearance was not retained in his medical records. Meanwhile, the head team physician allegedly refused to let the plaintiff run with the team, noting that the clearance was only for self-paced jogging and not participation in team workouts.
On March 21, 2011, the plaintiff and his mother met with the doctors, who informed the plaintiff that his recovery “was ‘substantial but incomplete,’ that he presented a high risk for further injury if he engaged in high-level athletic activities, and that he would not ever be cleared to return to football at ASU. At that meeting, Flunder’s mother allegedly asked to speak to someone in ASU’s legal department, but this request was denied.
Despite this news from ASU doctors and administrators, the plaintiff continued to work to rehabilitate his knee and, in August 2011, demonstrated to one of the ASU doctors that he could do squats and walk on his heels and toes without pain. But the doctor told him that he would never clear him to play. Flunder believed for the first time that race and retaliation were factors in the decision.
The plaintiff was persistent, as evidenced in this video— https://www.youtube.com/watch?v=MJ0vk9DQSsg. But he was still denied.
Flunder sued on September 12, 2013, seeking $100 million and declaratory relief allowing him to play football at ASU. In a 137-page complaint, he alleged claims for (1) race discrimination under 42 U.S.C. § 1981 for not being cleared to play football, (2) retaliation under 42 U.S.C. § 1981, (3) equal protection violation under 42 U.S.C. § 1983 for not being cleared to play football, and (4) retaliation under 42 U.S.C. § 1985 for refusing to let Plaintiff and his mother speak to ASU’s legal department.
The defendants moved to dismiss, pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6), arguing that the claims are barred by the statute of limitations, barred by the Eleventh Amendment and sovereign immunity, barred by qualified immunity as to individual defendants, and failed to state claims under §§ 1981, 1983, and 1985.
The court resolved the dispute on statute of limitations grounds.
“The defendants argue that the plaintiff’s claims under §§ 1981, 1983 and 1985 accrued on March 21, 2011, when ASU’s head team physician informed the plaintiff that he would never be cleared to play football,” wrote the court. “They urge that the plaintiff’s attempts to convince ASU to reconsider this decision did not extend the statute of limitations, and that his claims are barred because the plaintiff filed suit on September 12, 2013, more than two years after the March 2011 decision. The court agrees.”
Gerald L. Flunder v. Arizona Board of Regents, et al., D. Az.; No. CV-13-01893-PHX-DGC, 2014 U.S. Dist. LEXIS 49067; 4/9/14
Attorneys of Record: (for plaintiff) Gerald L Flunder, Jr., Pro se, Phoenix, AZ. (for defendants) Michael King Goodwin, LEAD ATTORNEY, Office of the Attorney General, Liability Management Section, Phoenix, AZ. And J Russell Skelton, John T Masterson, Jonathan Paul Barnes, LEAD ATTORNEYS, Jones Skelton & Hochuli PLC, Phoenix, AZ.
