Much of ex-GFU football player's lawsuit dismissed
While Samuel Wani's time as a George Fox University football player was brief, lasting just a few weeks prior to the 2015 season, the civil lawsuit he filed alleging the school failed to treat a thumb injury suffered during practice is already in its second year.
Although the conclusion to the lawsuit could still be a long ways off, lawyers for the group of defendants -- which includes the university, several members of the coaching staff, an athletic trainer, some non-athletic GFU employees, a local doctor and a former teammate -- have won some major victories in United States District Court so far.
Wani, who came to the United States as a teenage refugee from Sudan and settled in Washington, is representing himself and federal Judge Youlee Yim You dismissed five of the six claims in his suit in April.
According to You's findings in the case, all six of Wani's claims -- which charge cyberbullying and racial verbal harassment, negligence, refusal of treatment, medical fraud, racial discrimination, HIPAA violations and breach of contract -- stem from either the thumb injury or an incident involving a social media post from former teammate Dominic Fix-Gonzalez.
Wani claims to have injured his thumb on Aug. 20, 2015 and sought treatment from athletic trainer Gregg Boughton, only to be told it was a sprain and not severe enough to excuse him from practice. Wani claims to have reported worsening pain to Boughton and requested to see a doctor only to be denied.
A week later on Aug. 27, Wani learned that Fix-Gonzalez had posted pictures of him on Instagram, including one post comparing his appearance to that of a toilet mop. After being told that Wani was upset about the posts, Fix-Gonzalez agreed to remove them and Wani was allegedly told by head coach Chris Casey to "get over it" and that "things like that are going to be said."
Wani alleges waiting in vain for the coaching staff -- which included defensive coordinator John Bates, special teams coordinator Ian Sanders and wide receivers coach Gabe Haberly, who were named as defendants -- to report the incident to the administration, leaving him in what he describes as a racially hostile environment at the school.
After seeking an X-Ray on his own at Providence Newberg Medical Center and learning that his thumb was broken Sept. 2, Wani withdrew from classes. He reported the social media posts and his injury to GFU associate dean of students and director of residential life Dave Johnstone on Sept. 4, sparking an investigation by the school that involved dean of students Mark Pothoff and administrative employee Sarah Taylor. All three are named in the suit.
Wani claims that during the investigation, Boughton lied about refusing him medical treatment and then-athletic director Craig Taylor "refused to communicate with him except to taunt him and tell him that neither GFU nor its insurer, AIG, will pay for his injury."
Representing George Fox and the nine employees named in the lawsuit is attorney Martin Jaqua of the Portland-based Ricckles Law Firm. Jaqua filed motions to dismiss five of Wani's claims and You ultimately granted those motions when a fellow judge approved her findings and recommendations.
Wani's first claim of cyberbullying and racial verbal harassment alleges that the GFU defendants failed to report or adequately respond to Fix-Gonzalez's social media posts, therefore subjecting him to a racially-hostile environment.
You agreed with Jaqua that nothing in the allegations themselves rises to the level of a sufficiently hostile educational environment, which requires racial harassment to be "so severe, pervasive, persistent and objectively offensive that it deprived the victim to access the educational opportunities." You found that Wani's claim rested on social media posts by Fix-Gonzalez and that the university's actions, including Johnstone immediately launching an investigation and eventually sanctioning Fix-Gonzalez, were adequate.
You ultimately found that the claim of racial discrimination based on a hostile environment theory failed and granted the motion to dismiss it.
Wani's second and third claims, both of which were later amended as 'negligence,' center around his thumb injury and specifically about the defendants' post-diagnosis conduct. You boiled down the second claim to a contention that several GFU defendants "collaborated" so that Boughton would not get in trouble and that the school would not have to pay for his injury. She found the third claim to rest on Boughton's refusal to allow Wani to seek medical treatment in the weeks after reporting it.
You wrote that Wani appeared to assert a claim of deliberate indifference to medical needs, similar to those asserted by prisoners, but found no "authority that provides for such a claim by a student against a school" nor any authority "extending a special relationship sufficient to support a negligence claim by a student against a private university or its employees based on the failure to properly diagnose a student's medical condition."
In dismissing the second claim, You added that any negligence claim based on a misdiagnosis must allege improper treatment following the misdiagnosis. The judge dismissed the third claim, which references surgery to remove and reconstruct a tendon in Wani's thumb, because the plaintiff did not specify how the surgery was caused or was exacerbated by George Fox's alleged refusal to grant leave from practice to seek medical treatment.
Wani's fifth claim of HIPAA violations rises from allegations that Taylor and Boughton shared his private health information, including an x-ray, with Dr. Thomas Croy, who is the local doctor that Wani claims GFU used as the basis to deny him or pay for medical treatment. You found that neither the statute that Wani cited nor HIPAA in general, allow for a private civil action for money damages and dismissed the claim with prejudice.
The sixth claim of Wani's suit claims breach of contract, but was dismissed for not identifying the contract upon which the claim relies nor any insurance policy that would pay for medical expenses arising from injuries sustained during football activities.
In sanctioning You's official findings and recommendations in the case, District Judge Marco Hernandez noted that Wani can choose to re-assert all but the fifth claim in an amended pleading, which Wani subsequently did.
"Although she did not expressly state that the first, second, third and sixth claims should be dismissed without prejudice, that is how I construe the findings and recommendations," Hernandez wrote. "Although the first claim is dismissed without prejudice, I note that should (the) plaintiff choose to re-assert this claim in an amended pleading and should he rely on only the same facts in support of that claim as he has already alleged, the claim will be dismissed again."
Hernandez did state that in regard to the second claim, Wani may have intended a claim for intentional infliction of emotional distress, but noted that "any re-assertion of this claim must make clear exactly which defendants engaged in what conduct, for what purpose, and what harm was caused as a result."
Numerous aspects in the case are still pending, including Wani's motion for amended pleadings, as well as a motion for summary judgement by Mark Sherman, who is representing Dr. Croy, and a motion for judgement on the pleadings by Troy Sexton, who is representing Fix-Gonzalez.
Wani also filed a separate suit against several of the same defendants, including Croy, but that suit was dismissed by You in February for being duplicative.
Earlier in the case, Wani fought attempts by the defendants' attorneys to subpoena his medical records from three facilities where he received treatment on his thumb.
You granted motions from the defendants to compel Wani to cooperate at a discovery hearing Jan. 10. She later ruled that they could subpoena all of the plaintiff's medical and psychological records for the past five years and ordered Wani to answer the questions about his educational background while also allowing GFU to subpoena educational records in the case.
George Fox University and its attorneys, as well as Sherman, were contacted for this story but gave no comment. Requests for comment from Wani were not returned.
Sexton reported that Fix-Gonzalez, who now serves as a police officer in Southern California, is patiently awaiting conclusion of his part in the case, which he considers frivolous considering the sanctions received from the school for his actions on social media and towards Wani.