REPLY Rule 7(a) filed by Rajin Patel re: 42 Answer and Affirmative Defenses to Plaintiffs' Second Amended Complaint. (Attachments: # 1 Exhibit(s) One-Expert Report)¶

Patel v. Texas Tech University et al, No. 5:17-cv-00174-C (N.D. Tex.) · Dkt. 57 · 2018-07-23 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION

RAJIN PATEL,
Plaintiff,

Civil Action No.: 5:17-CV-174-C

v.
TEXAS TECH UNIVERSITY; DUANE
JONES, individually and in his official capacity
as adjunct professor; WILLIAM PASEWARK,
individually and in his official capacity as TTU
Rawls College of Business Associate Dean of
Graduate Programs and Research; ROBERT
RICKETTS, individually and in his official
capacity as Area Coordinator in Accounting; and
BRITTANY TODD, individually and in her
official capacity as Associate Director of the
Office of Student Conduct;
Defendants.

PLAINTIFFS’ RULE 7(a) REPLY TO DEFENDANTS’ ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFFS’ SECOND AMENDED COMPLAINT
COMES NOW, RAJIN PATEL (“Plaintiff” or “Patel”), by and through his attorney of
record, Jason J. Bach, Esq., of The Bach Law Group, PLLC, in compliance with this Court’s Order
of July 11, 2018, and files this Rule 7(a) Reply to Defendants’ Original Answer and Affirmative
Defenses in Response to Plaintiff’s above-captioned Complaint. Mr. Patel respectfully represents
as follow:
I.
1.

INTRODUCTION AND SUMMARY

Mr. Patel matriculated to Texas Tech University (“TTU”) as an undergraduate in

2012 and was accepted to TTU’s Rawls College of Business (the “College”) to complete his
Master of Science degree in Accounting in 2016. He took concurrent baccalaureate and graduate

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classes in 2016, and during his long tenure at TTU, proved to be an exceptional student who
excelled in his courses. He had never faced a prior allegation of academic misconduct or been
judged guilty of any wrongdoing.
2.

In enrolling in TTU and during the course of his enrollment, Mr. Patel and TTU

entered into several contracts via university publications and individual agreements defining both
the student’s and the College’s expectations and obligations for academics, discipline, and
miscellaneous elements of university administered programs.
3.

Defendant TTU wrongfully dismissed Mr. Patel from its Rawls College of Business

after he was falsely accused of plagiarism on the final exam in the graduate school course BLAW
5392 Advanced Business Law (“BLAW”). Remarkably, TTU took no action against fellow
BLAW students who were accused of the same conduct.
4.

Specifically, Defendant Duane Jones proctored the final exam inconsistently and in

violation of his own course testing procedures. Following the exam, Mr. Patel spoke with
Defendant William Pasewark, TTU Rawls College of Business Associate Dean of Graduate
Programs and Research, expressing concern over the irregularities between exam sessions,
including the fact that some students were allowed to use open books and e-notes and that the
structure of the exam was strange in that it mimicked the textbook review questions. Less than
twenty-four hours after Mr. Patel told Defendant Pasewark about the exam irregularities,
Defendant Jones filed an academic integrity incident report against Mr. Patel, alleging that Mr.
Patel had accessed the test bank copy during the closed-book exam. During a meeting between
Mr. Patel and Dr. Pasewark, Defendant Robert Ricketts, Area Coordinator in Accounting,
confirmed that Mr. Jones had alleged cheating against three students, but later stated that there was
“solid evidence to suggest one of the individuals was cheating and not enough evidence to bring a
case against the other two.” He did not name names. Defendant Brittany Todd from the Office of
Student Conduct opened an initial investigation into the plagiarism allegations. In line with the
investigation, Mr. Patel spoke with Ms. Todd on January 4, 2017, when she immediately accused
Mr. Patel of cheating before he had even spoken—she refused to listen to or memorialize Mr.
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Patel’s statements. At no point during the investigation following this phone call was Mr. Patel
offered the opportunity to present evidence in his own defense. Ms. Todd’s “Final Investigative
Report” addressed NONE of Mr. Patel’s concerns or counter-allegations.
5.

Mr. Patel was ultimately dismissed from the TTU Rawls College of Business

graduate program for his very first misconduct charge, put on deferred suspension until January
2018 in his TTU undergraduate classes and given an F in BLAW. Pursuant to the deferred
suspension, TTU further mandated that Mr. Patel pay a penalty related to the plagiarism, admit he
plagiarized, and enroll in an Academic Integrity course about plagiarism.
6.

The Forensic Linguistics Report of expert Alan M. Perlman, Ph.D (the “Perlman

Expert Report”) makes clear that Mr. Patel did not engage in any form of academic dishonesty
during the BLAW final exam. A true and correct copy of the Perlman Expert Report is attached
hereto as Exhibit 1 and is incorporated for all purposes herein by this reference. According to the
Perlman Expert Report, and, consistent with Mr. Patel’s explanation for his exam answers, “absent
empirical evidence (e.g., video) of Plaintiff’s copying material from one source and then from
another, frantically taking one passage from one page and another from another, as the highlighted
material suggests – a complex, cumbersome, and time-consuming process – the simplest
explanation, requiring the fewest assumptions is that he did indeed memorize the material.”
7.

Abundant evidence confirms that students in various other academic disciplines,

such as law, medicine, business, and many technical and scientific fields, routinely commit huge
amounts of data to memory, as do actors, public speakers, musicians, and other performers. Mr.
Patel’s feat of memory is thus not unique but nevertheless commendable, and he should be credited
with learning all the necessary information.
8.

The basic criterion of plagiarism is theft of originality. In no respect did Plaintiff

copy original or proprietary material available to no one else. The supposedly copied material was
available to everyone in the class. If there were actual evidence of Plaintiff’s illicit copying, he
would be guilty of nothing more than cheating; however, no such evidence exists. Therefore, there
is no cheating—and certainly no plagiarism.
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9.

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After TTU’s denial of Mr. Patel’s internal appeals of his discharge from the College

and protracted communication with TTU attorneys in an attempt to resolve his wrongful treatment,
Mr. Patel filed this lawsuit against TTU and the employees who participated in the wrongful denial
of his constitutionally guaranteed substantive due process and equal protection rights under 42
U.S.C. § 1983 and for breach of contract.
10.

Defendants Jones, Pasewark, Ricketts, and Todd (collectively, the “Individual

Defendants” and, together with TTU, the “Defendants”) directly participated in Mr. Patel’s
wrongful dismissal from the College. The Individual Defendants acted in bad faith toward Mr.
Patel and have a shown a deliberate indifference to the law and Mr. Patel’s rights. The Individual
Defendants violated an actual, clearly established constitutional right under existing law and their
conduct was objectively unreasonable in light of the clearly established law at the time of their
conduct.
11.

As a result of the Defendants’ unlawful conduct, Mr. Patel seeks injunctive relief

(i.e., readmission to the College), compensatory damages, and his costs and attorneys’ fees.
II.

DEFENDANTS’ AFFIRMATIVE DEFENSES CANNOT BE SUSTAINED

12.

Plaintiff alleges the following facts to demonstrate that the Defendants’ pleas of

immunity cannot be sustained. For the sake of efficiency, Plaintiff incorporates the Parties, Venue,
and General Factual Allegations sections from his Complaint by reference as if fully set forth
herein. Plaintiff’s Complaint, p. 2-16.
13.

Plaintiff seeks recovery for federal constitutional violations under 42 U.S.C. §

1983. Accordingly, he is permitted to obtain relief against the Defendants in their official
capacities for injunctive relief and in their individual capacities for damages, attorneys’ fees and
other relief requested by the Plaintiff in the Complaint. As required by the United States Supreme
Court and the United States Court of Appeals for the Fifth Circuit, Plaintiff alleges (1) under
existing law, a violation of an actual, clearly established constitutional or federal statutory right,
and (2) that each of the Individual Defendants’ conduct was objectively unreasonable in the light

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of clearly established law at the time of that conduct. Pearson v. Callahan, 555 U.S. 223, 231
(2009); Felton v. Polles, 315 F.3d 470, 473 (5th Cir. 2002).
A.

Nature of the Claims Asserted Against Defendants in their Official Capacities.
14.

Plaintiff has sued the Defendants in their official capacities for federal

constitutional violations pursuant to 42 U.S.C. § 1983. See First and Third Causes of Action of
the Plaintiff’s Complaint, pp. 16-19, 22-24.
15.

Plaintiff has sued TTU in its official capacity for breach of contract in connection

with rights explicitly guaranteed by TTU pursuant to TTU’s Student Handbook, Employee
Handbook, and the Student Code of Conduct. See Fourth Cause of Action of the Plaintiff’s
Complaint, pp. 24-26.
16.

The Individual Defendants, as sued in their official capacities, assert Eleventh

Amendment and sovereign immunity from all claims to which that defense applies.

See

Defendants’ Original Answer and Affirmative Defenses in Response to Plaintiff’s Complaint (the
“Answer”), p. 10. Plaintiff reasserts that the Individual Defendants are not entitled to Eleventh
Amendment and sovereign immunity in their official capacities with respect to injunctive relief.
In the interests of clarity, Plaintiff reasserts that the Individual Defendants are not entitled to
Eleventh Amendment and sovereign immunity whatsoever in their individual capacities, and the
Individual Defendants have not asserted Eleventh Amendment and sovereign immunity from
claims against them in their individual capacities. See Answer, p. 10.
17.

TTU, as sued in its official capacity, asserts Eleventh Amendment and sovereign

immunity from all claims to which that defense applies. See id.
18.

Defendants assert limitations to the extent that any of Plaintiff’s claims are based

upon acts or events which occurred outside of applicable statutes of limitation. See id.
19.

An action for breach of contract is governed by a four-year statute of limitations.

Tex.Civ.Prac. & Rem.Code Ann. § 16.051. Mr. Patel was thus required to, and did, file his lawsuit
within four years of the date of which the cause of action accrued, i.e., December 12, 2020.

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20.

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42 U.S.C. § 1983 does not contain a limitations period so courts apply the forum

state’s statute of limitations for personal injury claims. Wallace v. Kato, 549 U.S. 384, 387, 127
S.Ct. 1091, 1094, 166 L.Ed.2d 973 (2007); Bd. of Regents v. Tomanio, 446 U.S. 478, 484–86, 100
S.Ct. 1790, 1795–96, 64 L.Ed.2d 440 (1980); Stanley v. Foster, 464 F.3d 565, 568 (5th Cir.2006).
In Texas, the limitations period for a personal injury claim is two years. Tex.Civ.Prac. &
Rem.Code Ann. § 16.003(a) (West Supp.2012). Mr. Patel was thus required to, and did, file his
lawsuit within two years of the date of which the cause of action accrued, i.e., December 12, 2018.
21.

Mr. Patel, through his contracts with TTU, had a constitutionally protected property

interest in his continued education at TTU Rawls College of Business. Further, he invested
significant amounts of money into paying for the education that he completed, strengthening his
claim to that interest.
22.

Pursuant to his contracts with TTU, Mr. Patel is afforded rights under the

Fourteenth Amendment’s substantive due process clause that enables this Court to override a
postsecondary public university’s academic decision where the school’s actions were such a
substantial departure from accepted academic norms as to demonstrate that they did not actually
exercise professional judgment when stripping him of that protected property interest.
23.

When viewed against the background of Mr. Patel’s entire career at the College,

Defendant TTU’s expulsion of Mr. Patel after Defendants held a biased disciplinary hearing in
which the panel was given a completely one-sided Final Investigative Report was arbitrary and
capricious.
24.

The Final Investigative Report was an extreme departure from academic norms and

had no rational academic basis.
25.

Mr. Patel and TTU had entered into several preceding agreements and

arrangements during his enrollment, in which both parties performed both rationally and
professionally without discord.

Defendant TTU cannot claim Mr. Patel would have acted

differently here.

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26.

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In this case, TTU could – and should – have allowed Mr. Patel’s hearing to progress

organically, where TTU’s academic ruling and sanctions on the basis of his academic conduct
would have been supported by court deference to academic decisions.
27.

Instead, TTU expelled Mr. Patel after a cursory investigation and biased hearing

that excluded any and all information that supported his defense and during which the panelists
were not informed that they had the option to find Mr. Patel innocent.
28.

TTU’s acceptance and actions to expel Mr. Patel in conjunction with the Individual

Defendants’ biased actions were unreasonable and not rationally related to any legitimate
educational interest. University policies and contracts permitted substantial recourse for TTU to
sanction Mr. Patel fairly, openly, and with appropriate safeguards that were proportionate to the
severity of the allegations and to his cumulative conduct history, which was pristine. That TTU
chose to rely on deceitful means to achieve certain ends is not justified and constitutes arbitrary,
capricious, and irrational professional judgment.
29.

Defendants’ subsequent treatment of Mr. Patel following his expulsion from the

Rawls College of Business that demonstrates its decision to permanently separate Mr. Patel was
not related to a rational educational purpose of removing an academically deficient or unethical
student. TTU continued to offer Mr. Patel participation in TTU undergraduate classes with a
sanction fee despite Mr. Patel’s alleged lack of academic integrity; TTU did not restrict Mr. Patel’s
completion of undergraduate coursework.
30.

TTU’s treatment of Mr. Patel’s baccalaureate status is also arbitrary, capricious,

wrongful and designed to guarantee maximum harm upon Mr. Patel’s curriculum vitae. His
account is frozen, and he is unable to register for classes, perform at internships, or obtain
transcripts, not because he is academically deficient or unethical, but simply because he refuses to
admit to false plagiarism charges. By de facto forcing Mr. Patel to admit to plagiarism in order to
take classes, TTU is attempting to manipulate Mr. Patel to assure he cannot maintain legal action
and will be unable to enroll in a Master’s program elsewhere, due to a forced, admitted plagiarism
mark on his transcript.
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31.

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As a result of Defendants’ official policies, acts, omissions, and practices, Mr. Patel

was improperly dismissed from the Master’s program and given an unfair undergraduate status on
the sole basis of a biased investigation and hearing that denied Mr. Patel due process.
32.

As a result of Defendants’ official policies, acts, omissions, and practices, Mr. Patel

has suffered irreparable harm because he was deprived of his contractual rights to be free from
arbitrary, capricious abuse perpetrated by state actors acting on behalf of the state.
33.

As a proximate result of the illegal, arbitrary and capricious acts of Defendants, Mr.

Patel has suffered and continues to suffer damages academically, financially, and emotionally.
34.

Defendants’ actions and omissions proximately caused Mr. Patel to suffer, and he

continues to suffer damages, including humiliation, severe emotional distress, loss of professional
reputation, and permanent professional damage.
35.

The acts, conduct, and behavior of Defendants have denied Mr. Patel his

substantive due process rights, by reason of which Mr. Patel is entitled to injunctive relief of
immediate re-enrollment as a student of the TTU Rawls College of Business Master’s program,
change of status to good standing in the baccalaureate program, and the termination of any
collection actions to correct further suffering.
36.

It has been necessary for the Mr. Patel to obtain the services of an attorney to

prosecute this action, and he is entitled to an award of attorney’s fees and costs of suit incurred
herein.
B.

Claims Asserted Against Defendants in Their Individual Capacities.
37.

Each of the allegations set forth in paragraphs 1 through 36, inclusive, are hereby

incorporated by this reference as if realleged fully herein.
38.

Plaintiff has sued the Individual Defendants in their individual capacities for federal

constitutional violations pursuant to 42 U.S.C. § 1983.
39.

The Individual Defendants, as sued in their individual capacities, assert qualified

immunity for all claims to which that defense applies. See Answer, p. 11.

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40.

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The Individual Defendants in their individual capacities intentionally violated Mr.

Patel’s constitutional rights under the Substantive Due Process clause of the Fourteenth
Amendment. The Individual Defendants knew that their actions in the conduct of perpetuating a
biased investigation and unfair hearing to expel Mr. Patel denied Mr. Patel of his constitutional
right to substantive due process and, therefore, exceeded the authority granted to them in their
official capacities as representatives of TTU, and, thus, are individually and personally liable for
any damages incurred by Mr. Patel.
41.

Defendant Jones administered the BLAW final exam against his own course

policies, allowing certain sessions to test with access to course materials while denying other
testing sessions the same opportunity.
42.

Defendant Jones proctored the exam in direct line-of-sight from Mr. Patel and

admitted after the exam that there were no issues during the testing session.
43.

Defendant Jones knowingly, arbitrarily, and capriciously accused Mr. Patel of

plagiarism without any actual evidence solely in order to expel Mr. Patel because Mr. Patel spoke
out about BLAW testing inadequacies.
44.

Defendant Pasewark was aware of the irregularities between the exam sessions and

further understood that Mr. Patel had arrived at his exam answers through diligent study,
preparation, and memorization.
45.

Defendant Pasewark blatantly disregarded his promise to Mr. Patel that the

inconsistent testing procedures would be considered as part of TTU’s decision to press charges
against Mr. Patel.
46.

Defendant Todd ratified Defendant Jones’ acts by omitting pertinent details to Mr.

Patel’s defense in her Final Investigative Report in an attempt to improperly dismiss Mr. Patel
without any rational basis. In addition, Defendant Todd committed violations related to the
investigation and hearing that were arbitrary and capricious.
47.

Defendant Ricketts knew of similar allegations against two other students but did

nothing to ensure that Mr. Patel’s allegations were properly investigated.
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48.

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Defendants Pasewark and Ricketts knew of and were in a position to stop Jones’

and Todd’s actions but did nothing and, in fact, contributed to the problem by allowing other
students to get away with worse actions without impunity.
49.

The Individual Defendants acted under color of law in violating the Fourteenth

Amendment, as described herein in violation of 42 U.S.C. § 1983.
50.

As a result of the Individual Defendants’ acts, omissions, and practices, Mr. Patel

was improperly dismissed despite the absence of any evidence of him cheating or plagiarizing.
51.

The Individual Defendants have shown a deliberate indifference to the law and to

Mr. Patel’s constitutional rights.
52.

The Individual Defendants, under the color of law, violated Mr. Patel’s right to

substantive due process by exercising their power without reasonable justification.
53.

The Individual Defendants’ conduct was objectively unreasonable in light of

clearly established law at the time of their conduct.
54.

The Individual Defendants were either personally involved in the constitutional

violations or were causally connected to the constitutional violations.
55.

The Individual Defendants understood what they were doing violated the law or

they should have understood what they were doing violated the law under the circumstances.
56.

The Individual Defendants did not act in good faith toward Mr. Patel. Specifically,

they acted in bad faith when they dismissed Mr. Patel from the College as described herein, in
falsely accusing Mr. Patel of plagiarism, in failing to conduct a neutral and unbiased investigation,
and in failing to properly interpret and apply Defendant TTU’s policies and procedures.
57.

A reasonably prudent individual, under the same or similar circumstances, could

not have believed that his or her conduct was justified based on the information he or she possessed
when the conduct occurred.
58.

As a result of the individual acts, omissions, and practices of the Individual

Defendants, Mr. Patel has suffered irreparable harm because he was deprived of his contractual

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rights to be free from arbitrary, capricious abuse perpetrated by state actors acting on behalf of the
state.
59.

As a proximate result of the illegal, arbitrary and capricious acts of the Individual

Defendants, Mr. Patel has suffered and continues to suffer damages academically, financially, and
emotionally.
60.

The actions and omissions of the Individual Defendants proximately caused Mr.

Patel to suffer, and he continues to suffer, damages, including, humiliation, severe emotional
distress, loss of professional reputation, and permanent professional damage.
61.

The acts, conduct, and behavior of the Individual Defendants in acting to deny Mr.

Patel his constitutionally guaranteed rights were performed knowingly, intentionally, oppressively,
and maliciously, by reason of which Mr. Patel is entitled to compensatory and punitive damages
against Defendants in their individual capacities.
III.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests this Court grant the relief requested in
Plaintiff’s Complaint, that this Court deny and overrule the Defendants’ affirmative defenses based
upon the material facts alleged herein with particularity establishing that Defendants’ pleas of
immunity cannot be sustained, and that the Court grant Plaintiff such other and further relief to
which they may show themselves justly entitled.
DATED this 23rd day of July, 2018.
THE BACH LAW GROUP, LLC
By

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/s/ Jason J. Bach
JASON J. BACH, ESQ.
Texas Bar No. 24071556
2802 Flintrock Trace, Suite 255
Austin, Texas 78738
Telephone: (512) 879-3901
Facsimile: (702) 925-8788
Attorney for Plaintiff

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CERTIFICATE OF SERVICE
I hereby certify that on the 23rd day of July, 2018, a true and correct copy of the foregoing
pleading was served upon each party to this action via the Court’s electronic case filing system, as
follows:
Rola Daaboul, Esq.
Ken Paxton
Jeffrey C. Mateer
Brantley Starr
James E. Davis
Angela V. Colmenero
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Attorney for Defendants

By:

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/s/ Jason J. Bach
Jason J. Bach