GARY GIBSON, 

v. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

Plaintiff, 1:14-cv-00817-PA 

ORDER 

WALDEN UNIVERSITY, LLC, 

Defendant. 

FANNER, J. 

This matter comes before the Court on Defendant's Motion to 

Dismiss the Second Amended Complaint (#22). Defendant's Motion 

is GRANTED. 

Background 

Defendant Walden University is a private university which 

operates primarily via the Internet. Plaintiff enrolled with 

Defendant in 2011 as a masters candidate in Mental Health 

Counseling. As part of his degree program, Plaintiff attended a 

Portland residency in late October 2013. Plaintiff alleges that 

he disclosed his "pedophilic sexual orientation" during a small 

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Case 1:14-cv-00817-PA Document 28 Filed 11/13/14 Page 1 of 10
group session and that he was subsequ~ntly dismissed from the 

program and the university. 

Legal Standard 

Where the plaintiff "fail[s] to state a claim upon which 

relief can be granted," the court must dismiss the action. Fed. 

R. Civ. P. 12 (b) (6). To survive a motion to dismiss, the 

complaint must allege "enough facts to state a claim to relief 

that is plausible on its face." Bell Atlantic Corp. v. Twombly, 

550 U.S. 544, 570 (2007). For the purpose of the motion to 

dismiss, the complaint is liberally construed in favor of the 

plaintiff and its allegations are taken as true. Rosen v: 

W a 1 t e r s , 7 1 9 F . 2 d 14 22 , 14 2 4 ( 9th C i r . 1 9 8 3 ) . However , bare 

assertions that amount to nothing more than a "formulaic 

recitation of the elements" of a claim "are conclusory and net 

entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S. 662, 

680-81 (2009). Ratherr to state a plausible claim for relief, 

the complaint "must contain sufficient allegations of underlying 

facts" to support ~ts legal conclusions. Starr v. Baca, 652 F.3d 

1202, 1216, reh'g en bane denied, 659 F.3d 850 (9th Cir. 2011). 

Discussion 

Plaintiff's Second Amended Complaint alleges that 

Defendant's Student Handbook, which sets forth Defendant's 

nondiscrimination policy, formed a contract between the parties. 

Plaintiff alleges that Defendant violated that policy by 

dismissing him from the mental health counseling program based on 

his ~pedophilic sexual orientation." Plaintiff also alleges that 

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Case 1:14-cv-00817-PA Document 28 Filed 11/13/14 Page 2 of 10
Defendant breached a contract by failing to provide him with 

remedial modules as promised and by failing to provide a timely 

response to Plaintiff's appeal. 

I. The Walden Student Handbook1 

Plaintiff's Second Amended Complaint alleges that the Walden 

Student Handbook created an.enforceable contract between the 

parties in this case. The Walden Student Handbook states that it 

may be "may be modified Dr discontinued from time to time in the 

university's sole discretion . Neither the provisions of 

this document, nor the acceptance of students through 

registration and enrollment in the university, constitutes a 

contract or an offer of a contract." Riedel Decl. Ex. A at ii, 

iii. 

The existence of an enforceable contract is an essential 

element to a claim for breach of contract. Fort Vancouver 

Broadcasting Corp. v. Fouce Amusement Enters., 933 F.2d 1013 (9th 

Cir. 1991). 

Plaintiff relies on Bird v. Lewis & Clark Coll., 104 F. 

1Plaintiff's Second Amended Complaint references and relies 

upon the Walden Student Handbook, but does not explicitly 

incorporate it. In ruling on a 12(b) (6) motion, a court may 

generally "consider only allegations contained in the pleadings, 

exhibits attache_d to the complaint, and matters properly subject 

to judicial notice." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th 

Cir. 2012) (citation omitted). A court, however, "may consider a 

writing referenced in a complaint but not explicitly incorporated 

therein if the complaint relies on the .document and its 

authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 

763 (9th Cir~2007) (citation omitted). Defendant has provided 

the Student Handbook as an exhibit to the Ri~del Declaration 

(#24) and Plaintiff makes no challenge to the exhibit's 

authenticity. 

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Case 1:14-cv-00817-PA Document 28 Filed 11/13/14 Page 3 of 10
Supp. 2d 1271 (D. Or. 2000), to support the existence of a 

contract between the parties. In Bird, the court concluded that 

"'[T]he basic legal relationship between a student and private 

university or College is contractual in nature. The catalogs, 

bulletins, circulars, and regulations of the institution made 

available to the matriculant became part of the contract.'" Id. 

at 1276 (quoting Ross v. Creighton Univ., 957 F.2d 410, 416 (7th 

Cir. 1992). I~ ordet to state a claim for breach of contract in 

the private university context, the plai"ntiff "must point to an 

identifiable contractual promise that the defendant failed to 

honor." Ross, 957 F.2d at 417. 

Both Bird and Ross dealt with "individualized agreement[s]" 

to provide specific services to particular students. Bird, 104 

F. Supp.2d at 1277. In Bird, the contract dealt with providing 

accommodations to a disabled student in order for her to 

participate in an overseas study program. Id. In Ross, the 

university promised to provide special services to allow a gifted 

basketball player to·participate in the university's curriculum 

despite his academic difficulties. Ross, 957 F.2d at 417. In 

this case, by contrast, the alleged contract was contained in a 

generally applicable student handbook. 

Under certain circumstances, a private university student 

handbook may tonstitute a contract between the student and the 

institution. See Dauven v. George Fox Univ., No. CV. 09-305-PK, 

2010 WL 6089077, at *17 (D. Or. Dec. 3, 2010). In Dauven, the 

court held. that a student handbook potentially constituted a 

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Case 1:14-cv-00817-PA Document 28 Filed 11/13/14 Page 4 of 10
contract because it contained language indicating that it 

established a contract, including an "Agreement Contract," which 

required the student to read, sign, and abide by the guidelines 

contained within the handbook. Id. In the present case, by 

contrast, the Walden Student Handbook expressly disclaims the 

formation of a contract or that the Handbook constitutes an offer 

of a contract. 

Other Circuits and Districts have confronted situations more 

closely analogous to the present case. In Carr v. Bd. of Regents 

of Univ. Sys. of Georgia, 249 F. App'x. 146, 150-51 (11th Cir. 

2007), the Eleventh Circuit held that an undergraduate catalog 

did not constitute a contract, in part because it contained 

express disclaimers to that effect. See also Abbas v. Woleben, 

Civil No. 3:13-CV-147, 2013 WL 5295672, at *4 (E.D. Va. Sept. 19, 

2013) (finding that university handbooks and catalogs do not form 

a contract when the terms are not binding on the university); 

( 

Brown v. Rector & Visitors of the Univ. of Virginia, Civil Action 

No. 3:07-CV-00030, 2008 WL 1943956, at *6 (W.O. Va. May 2, 2008) 

(holding that a student handbook did not constitute a binding 

contract based on its disclaimers). I find these cases 

persuasive and, based on the disclaimers contained in the Wald~n 

Student Handbook, I conclude that no contract existed between the 

parties in this case. 

Even if the Walden Student Handbook did constitute an 

enforceable contract, Plaintiff has not sufficiently alleged that 

Defendant's conduct constituted a violation of the Handbook's 

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Case 1:14-cv-00817-PA Document 28 Filed 11/13/14 Page 5 of 10
nondiscrimination clauses. The Walden Student Handbook forbids 

"discrimination by or against members of the university community 

on the basis of race, color, national origin, gender, sexual 

orientation, religion, age, mental or physical disability, 

veteran status, or other protected characteristics in the 

admission to,~ access to, or treatment or employment· in any of its 

programs or activities." Riedel Decl. Ex. A, at 331 (emphasis 

added) . By its terms, the nondiscrimination clause is 

"consistent with applicable federal, state, and local laws 

guaranteeing nondiscrimination for all protected 

classifications[.]" Id. at 330. Plaintiff has not pled that 

"pedophilic sexual orientation" is a protected classification 

under either federal or state law, nor has he cited any authority 

for that proposition in his Response to Defendant's Motion to 

Dismiss (#25) . 2 I conclude that "pedophilic sexual orientation" 

does not fall within the bounds of the Walden Student Handbook's 

nondiscrimination policy. 

Accordingly, I conclude that Plaintiff has failed to state a 

2Plaintiff cites to the Diagnostic and Statistical Manual of 

Mental Disorders, Fifth Edition ("DSM-5'') for the proposition 

that if an individual is sexually at~tracted to children but does 

not act on that attraction and is not troubled by it, the 

individual has "pedophilic sexual orientation." Plaintiff argues 

that Defendant is bound to consider "pedophilic sexual 

orientation" as covered by its. nondiscrimination policy because· 

it uses the DSM-5 as a textbook. P. Mem. Opp. at 5. At 

Defendant's request, I take judicial notice of the DSM-5. U~S. 

v. Cantu, 12 F.3d 1506, 1509 n. 1 (9th Cir. 1993) (taking judicial 

notice of the DSM Third Edition). I note that the relevant 

portion of the DSM-5 (discussing paraphilic disorders) identifies 

the de~cribed condition as "pedophilic sexrial interest" and not 

"pedophilic sexual orientation," as suggested by Plaintiff. 

Escobar Decl. Ex. A, at 6. 

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claim for breach of contract based on the Walden Student 

Handbook. This claim is DISMISSED. 

II. Alleged Oral Promise 

Plaintiff's Second Amended Complaint alleges that after he 

was dismissed from his residency, Walden administrators offered 

to ~rovide two "remedial modules" so that Plaintiff could 

"complete a later session without additional charge." Second Am. 

Compl. at 3. Plaintiff alleges that he was not provided with 

these promised modules. Based on Plaintiff's Response to the 

Defendant's motion to dismiss, it appears that Plaintiff alleges 

that this promise constituted a contract. 

In order to state a claim for breach of contract, a 

plaintiff must plead a bargain in which there is a manifestation 

of mutual assent to the exchange and consideration. U.S. for Use 

of Youngstown Welding and Engineering Co. v. Travelers Indem; 

Co., 802 F.2d 1164, 1169 (9th Cir. 1986). To the extent that 

Plaintiff has alleged a breach of contract claim based on oral 

promises, the Second Amended Complaint does not state that 

Plaintiff accepted the o~fer of the remedial ~odules, nor does he 

state what consideration was ex~hangedr Nor does the Second 

Amended Complaint clearly allege who made the promises or when: 

Such bare-bones allegations are not sufficient to support a claim 

for breach of contract. 

Furthermore, in the dismissal letter attached to Pla~ntiff's 

Response, Plaintiff was informed that "Walden University has 

determined that your continued preparation as a counselor is not 

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Case 1:14-cv-00817-PA Document 28 Filed 11/13/14 Page 7 of 10
consistent with the objectives of the counseling profession and 

not in' your best interests or that of the university or the 

counseling client community." Pl.'s Resp. Ex. A, at 2. 

Plaintiff was informed that he was being dropped from the 

counseling course and dismissed from the university. The letter 

also states that Plaintiff's tuition for the counseling course 

would be refunded. Defendants unequivocal statements of 

dismissal ate inconsistent with the alleged promise of remedial 

modules to allow Plaintiff to complete the counseling course, 

especially considering that Defendant had apparently determined 

that Plaintiff's continued enrollment presented an ethical 

conflict. This claim is DISMISSED. 

III. Inadequate Process 

Plaintiff's Second Amended Complaint appears to allege that 

Defendant breached its contractual obligations when it failed to 

respond to Plaintiff's appeal of .his dismissal within forty-five 

days as required by the American Counseling Association ("ACA") 

Code of Ethics and as provided in the Walden Student Handbook. 3 

The ACA Code of Ethics requires counselor educators to "ensure 

that students have recouse in a timely manner to address 

decisions requiring them to seek assistance or to dismiss them 

and provide~students with due process according to institutional 

3Plaintiff appears to allege that he was entitled to process 

as part of the ACA Code of Ethics. Although Plaintiff does not 

explicitly incorporate the ACA Code of Ethics, the document is 

referenced and relied upon in his pleadings. It is therefore 

appropriate for consideration in ruling on this motion. See 

Swartz v. KPMG LLP,. 476 F. 3d 756, 763 (9th Cir.2007). 

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Case 1:14-cv-00817-PA Document 28 Filed 11/13/14 Page 8 of 10
policies and procedures." Escobar Decl. Ex B, at 15. 

To the extent that Defendant was bound to abide by the ACA 

Code of Ethics, all that was required was compliance with 

institutional appeals procedures. Those procedures are contained 

in the Walden Student Handbook. The Walden Student Handbook says 

that "Normally no more than 45 calendar days should elapse 

between the £iling of the appeal and the disposition by the chief 

academic officer." Reidel Decl. Ex. A at 339. 

By its plain language, this provision does not guarantee 

disposition of an appeal within forty-five days. Although 

Plaintiff does allege that it took considerabiy longer for 

Defendant to resolve Plaintiff's appeal, his complaint was 

apparently investigated and ruled upon by the appropriate 

officials. I conclude that Plaintiff has failed to adequately 

state a breach of contract claim based upon failure to timely 

respond to Plaintif£'s appeal. 

IV. Dismissal With Prejudice 

Defendant requests that dismissal be with prejudice. 

Although pro se pleadings are held to less stringent standard 

thah those drafted by lawyers, see Haines v. Kerner, 404 U.S. 

519, 520 (1972), I note that Plaintiff has already amended his 

complaint twice. I see no possibility that Plaintiff might 

further amend his complaint to·state a claim. Accordingly, 

dismissal is with prejudice. 

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Case 1:14-cv-00817-PA Document 28 Filed 11/13/14 Page 9 of 10
CONCLUSION 

Defendants' Motion to Dismiss (#22) is GRANTED. This action 

is DISMISSED with prejudice. 

IT IS SO ORDERED. 

DATED this~ day of November, 2014. 

OWEN M. PANNER 

U.S. DISTRICT JUDGE 

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