Judge recommends dismissing athlete's remaining claims stemming from injury and social media incident in 2015

One-time George Fox University football player Samuel Wani's federal lawsuit against the school, a local doctor and a former teammate for negligence, medical fraud, racial discrimination and cyberbullying appears to be on its last legs after the presiding judge recommended dismissing the remaining portions of the case.

Representing himself, Wani originally filed suit in U.S. District Court in Portland in June 2017, but five of his six claims against George Fox and several employees (GFU defendants), were dismissed in April, including one that was dismissed with prejudice, meaning it could not be salvaged and brought again.

A ruling on the lone remaining claim against the GFU defendants, as well as claims against former football player Dominic Fix-Gonzalez and Dr. Thomas Croy, have been pending since.

Wani also took the opportunity to elaborate on additional allegations and amend his pleadings on the four claims against George Fox that were dismissed without prejudice, although he waited over six weeks to do so.

However, in releasing his findings and recommendations Aug. 8, United States Magistrate Judge Youlee Yim You recommended that several defense motions to dismiss all of Wani's remaining claims be granted. Judge You also recommended that three of Wani's motions be denied, including one to amend his claims.

The findings and recommendations have since been referred to a district judge for review and, if adopted, would finalize You's rulings and likely end the case.

Wani's lawsuit stems from a brief stint with the Bruin football team for preseason practices in 2015, during which he sustained a hand injury, objected to a social media post by Fix-Gonzales and found George Fox's response to those issues lacking.

Wani brought the original suit against the university, the football coaching staff, head athletic trainer Gregg Boughton, team physician Croy, Fix-Gonzales, several GFU employees and Providence Medical Group. Wani subsequently dropped Providence as a defendant in September 2017.

The suit included six claims against George Fox and various employees (GFU defendants) for cyber bullying, racial verbal harassment, negligence, refusal of treatment, medical fraud, racial discrimination, HIPAA violations and breach of contract.

After sustaining a thumb injury during practice on Aug. 20, 2015, Wani claims that he requested to see a doctor but was instead told that it was jammed and to "give it a few days."

A week later, Wani learned that Fix-Gonzalez had posted pictures of him on Instagram, including one post comparing his dreadlocks to a toilet mop. After being told that Wani was upset about the posts, Fix-Gonzalez agreed to remove them.

Wani eventually went on his own to get at X-Ray at Providence Newberg Medical Center and claims that he was told it was broken, which spurred him to withdraw from classes.

That decision was also related, at least in part, to the school's handling of Fix-Gonzalez' social media posts; Wani alleged the GFU defendants failed to report or adequately respond to Fix-Gonzalez's social media posts, therefore subjecting him to a racially-hostile environment. In her ruling, You found that the university's actions, which included an investigation and punishment for Fix-Gonzalez, were adequate and dismissed the related claim against the school and related employees.

Wani eventually sought treatment and underwent surgery to repair his thumb in the fall of 2016 and claims that his repeated requests that the school pay for it were routinely denied.

Wani's second claim arose from allegations 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, while his third centered on Boughton's alleged refusal to allow Wani to seek treatment. Both claims were amended to be for negligence and were ultimately dismissed by You.

Wani's fifth claim of HIPAA violations is tied to allegations that Taylor and Boughton shared his private health information, including an x-ray, with Croy and used his diagnosis as the basis to deny him or pay for medical treatment. You originally 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 alleges breach of contract, but was also dismissed for not identifying the contract upon which the claim relies nor a insurance policy that would pay for medical expenses arising from injuries sustained during football activities.

In the latest round of findings, You recommended denying Wani's motion to amend his pleadings, bringing an end to the five claims (Nos. 1, 2, 3, 5 and 6) against the GFU defendants that had been dismissed earlier without prejudice.

You recommended the denial on a few procedural grounds, including that Wani failed, both in the letter and the spirit of the local rule, to adequately confer with defense counsel prior to filing the motion. He also disregarded basic formatting requirements and "submitted a lengthy, rambling pleading that nowhere contains the type of 'short and plain statement' of his claims" that is called for.

You also agreed with defense attorneys that Wani was unnecessarily late in filing to amend his complaint, taking over six weeks, despite being given indications that he do so immediately when the first findings and recommendations were adopted by the court.

Even if that were to be overlooked, the judge said the proposed amendments revealed no new information to shore up Wani's claims, but simply rehashed old information under new titles.

"Such conduct reflects bad faith and is prejudicial to defendants who must then unnecessarily reassert the same defenses," You wrote.

Furthermore, Judge You evaluated each amended claim individually and found either they were not supported by the record or were fatally flawed.

With those aspects of the case settled, You proceeded to evaluate Wani's three pending claims, including claim No. 4 against the GFU defendants for "racial discrimination and hatred."

Wani alleged that Boughton's refusal to allow Wani time off from football practice and the GFU staff's response to Fix-Gonzalez's social media posts were racially motivated and therefore violated Title VI of the Civil Rights Act of 1964.

You recommended granting defense motions for judgement on the pleadings because, for one, individual employees may not be held personally liable under that law, and two, the alleged conduct would be insufficient to support a claim for Intentional Infliction of Emotional Distress (IIED). She also recommended dismissing Wani's claim against Fix-Gonzalez for verbal racial harassment for similar reasons.

According to You, Wani "failed to respond to the substance of Fix-Gonzalez's motion" for judgement on the pleadings for cyberbullying and therefore recommending granting it. Even if he had, she noted that he also didn't cite any statue that would provide him with a claim for cyberbullying.

Rounding out the case, You recommended approving motions for summary judgement filed by Croy and George Fox as an institution.

Croy sought summary judgement against Wani's claim of negligence, which was premised upon Croy's alleged actions to help cover up Wani's injury and falsify an x-ray and medical records. You found that the facts in the case established that Croy never had a doctor-patient relationship with Wani and that he seemed to base his claim entirely upon a mistaken statement by George Fox administrator Mark Pothoff that Croy had examined his thumb.

"Dr. Croy did not examine, did not say he examined, was not asked to examine, and did not tell anyone at GFU that he examined Wani's thumb," You wrote. "Furthermore, he denies having any involvement at all in the processing of Wani's claim with GFU's insurer for coverage of Wani's medical expenses and eventual surgery, and Wani has submitted nothing contradicting that assertion."

The judge went on to support Croy's assertion that Wani failed to show "any causal link" between Croy's actions and any alleged exacerbation of his injury.

Finally, You addressed Wani's claim of racial discrimination and hatred against George Fox as an institution, ultimately recommending that GFU's motion for summary judgement be granted.

Wani alleged that the football coaching staff refused to refer black football players to outside medical treatment, while white players were given access to "immediate and premium treatment," as well as time off from practice to heal.

You found that Wani not only failed to meet several legal requirements needed to prove his allegation, but also that the "chronology of events regarding Wani's treatment refute any basis for the conclusion that GFU was deliberately indifferent to Wani's complaints, either about the social media posts by Fix-Gonzalez or about his medical care."

The judge went on to note that George Fox "vehemently denies" the allegation and submitted evidence to refute it, including an exhaustive search of its records for injuries to black and white players Wani listed as examples of discrimination.

"Suffice it to say that the evidence permits no inference of racial discrimination, but instead reflects referral decisions made based on GFU's objective referral criteria," You wrote.

When You referred her original findings and recommendations for review, it took about six weeks before they were adopted by Judge Hernandez. Considering her second submission came in August, an order to adopt them as an official ruling could come at any time.

Editor's note: During the course of the case, Wani filed a motion for sanctions asserting that George Fox attorney Martin Jaqua either impersonated reporter Seth Gordon or was assisted by him in "illegally" acquiring information for use in the proceedings of the case. Defense counsel denied any impropriety and Gordon submitted an affidavit denying any contact with Jaqua.

You ultimately recommended that the claim be denied, noting that "a careful review of the materials that Wani has submitted reveals that Wani agreed to be interviewed by Gordon and then, when the Newberg Graphic article was published, demanded that a different picture accompany the article, disputed the accuracy of the reporting, and accused Gordon of various torts."

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