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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION DANIEL HUX, Plaintiff, vs. SOUTHERN METHODIST UNIVERSITY, a Texas not-for-profit corporation; SMU POLICE CHIEF RICHARD A. SHAFER; STEVE LOGAN; and LISA WEBB; Defendants. Civil Action No. 3:13-cv-912 TRIAL BY JURY DEMANDED

COMPLAINT Plaintiff Daniel Hux (hereinafter Hux), for his Complaint against Defendants Southern Methodist University (hereinafter SMU), SMU Police Chief Richard A. Shafer, Steve Logan and Lisa Webb alleges and states: Parties 1. 2. Daniel Hux is a citizen of the United States and, is a resident of the State of Texas. SMU is a Texas educational institution formed under the laws of the State of Texas with its

primary place of business in University Park, Texas. At all times relevant to this action, the Defendants identified herein as the SMU Police Department, Richard Shafer, Steve Logan and Lisa Webb were acting as constituent entities, agents and/or employees in the course and scope of their agency or employment with SMU, and in furtherance of the University's business interests. Further, at all times relevant to this action, Plaintiff was enrolled as a student at SMU pursuant to enrollment agreements entered into between them.

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3.

SMU Police Department is a SMU Police Department is a Texas law enforcement agency

authorized and existing under the laws of the State of Texas. The SMU Police Department is a fully empowered law enforcement agency that is certified by the state of Texas. Campus police officers are state-commissioned peace officers with full police authority, duties, and responsibilities. The department consists of 32 personnel, 22 of whom are commissioned peace officers. The University Police has the responsibility and duty to enforce all local, state, and federal laws and to effect arrest and to provide for referral for prosecution of crimes to the city and county judicial systems. Any criminal violation against the University is processed through the university judicial system and also may result in arrest and/or referral for prosecution in the state or federal criminal justice system. 4. Richard Shafer was, at all times relevant to this action, the Chief of the SMU Police

Department. In that capacity, Shafer was a University supervisory official with final policymaking authority with respect SMU Police Department activities and personnel including the investigation of Hux. Shafer supervised the day-to-day management of the SMU Police Department. Shafer is, and at all times relevant to this action, was a citizen and resident of Texas. He is being sued in his individual and official capacities. 5. Steve Logan, Executive Director, Residence Life and Student Housing; and Lisa Webb, the

Associate Vice President for Student Affairs and Dean of Student Life, are sued in their individual capacities as well as an agent for SMU. Jurisdiction and Venue 6. This action arises in part under the Constitution of the United States, particularly the First,

Fourth and Fourteenth Amendments to the Constitution of the United States, and under the laws of the United States, particularly the Civil Rights Act, Title 42 U.S.C. Section 1983. Plaintiffs seeks Page 2 of 33

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damages for the deprivation of his federal rights, including: the right to be free from unreasonable searches and seizures of his person and places, by arresting him without probable cause and/or detaining him without reasonable suspicion to believe that he had committed, or was about to commit, a crime; and the right to engage in protected free speech. 7. This Court has supplemental jurisdiction over state law claims discussed below under 28

U.S.C. Section 1331, 1343, and 1367 because they arise out of the same case or controversy. 8. Venue is appropriate under 28 U.S.C. 1391(a)(2) in that the Northern District of Texas is a

judicial district in which a substantial part of the events and omissions giving rise to Plaintiffs claim occurred. Factual Background 9. Daniel Hux was at all material times a student at SMU. He began his studies at SMU in 2010.

Also, he applied for and was hired as a Community Assistant1 or residential advisor (CA). He entered into a contract with SMU for the 2010-2011 academic year as a Community Advisor. Plaintiff received a glowing appraisal of his work as a CA for the fall 2010 semester. 10. In January, 2011, Plaintiff was contacted by Stephanie Howeth2, a SMU Residential

Community Director (Supervisor) of Service House. Howeth emailed Plaintiff and requested a meeting. Hux emailed her back and asked the purpose. Howeth never emailed him back. Plaintiff saw her later while conducting training and asked her why she wanted to meet. Howeth responded it had to do with student/staff relationships. Hux did not understand what she meant or referred to but stated that he would meet with her.

1 A Community Assistants duties included supervision of an assigned residential community within SMU. 2 Howeth was not a supervisor of Hux.

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11.

Eventually, the meeting occurred in January, 2011. The meeting began when Howeth stated

she wanted to clear up some boundaries. No other persons were present during this meeting; however, this meeting was recorded. 12. During the meeting in January, 2011, Howeth referred to a first incident which pertained to

a prior phone call Plaintiff had made to her about an upcoming leadership program involving SMU students. She said the call made her feel uncomfortable. Hux had called and asked her what she was doing that weekend or the next. Hux asked the question to learn of her availability for the program. Howeth appeared to have interpreted the question by Hux as an attempt to ask her out on a date which made her feel uncomfortable. Hux assured her at this meeting that her interpretation of his intent was incorrect and explained that he wanted to do a leadership program and checked on Howeths availability to conduct the program. By this time the program had already occurred. Howeth had never expressed any concerns about the Plaintiffs interaction with her at the program or when he made his misinterpreted remark. 13. The second incident Howeth referred to at the same January, 2011 meeting was that she felt

uncomfortable about an incident which had occurred at the end of the fall 2010 semester. This incident occurred about one month after the first incident. Plaintiff and another student, Kevin Eaton, were walking on campus and started a conversation with Howeth. The conversation was very general and covered general topics. Howeth at one point mentioned that she was going to a supervisor retreat or party. Plaintiff and the other student told her to have a good time. Plaintiff then stated that the staffs of Hawk, Martin, and Moore residences were also having, or planned to have, a retreat as well. Plaintiff told Howeth that she was invited to the other group retreat too. The third incident that Howeth referred to during the meeting was when she, Plaintiff and another Page 4 of 33

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student were having a conversation. Howeth was also present and seemed to be feeling down. Plaintiff recalled Howeth asking him about the clothes he was wearing that day. Plaintiff jokingly commented that he had dressed up just for her to look good for her. Plaintiff recalled Howeth smiled and the other student laughed. Plaintiffs comment seemed to brighten Howeths day, if only for the moment. 14. Howeth incorrectly interpreted the comments of Hux as a prelude to his desire to be intimate

with her. He carefully explained to Howeth that he had no interest in her whatsoever. Howeth stated that in her opinion Hux did not understand what she was alleging and believed him to be defensive. Howeth then attempted to provide counsel to Hux about his actions and how to act better in the future. At the end of the January, 2011 meeting, Hux told Howeth that he would not make more jokes or say anything funny to her. Hux further apologized to Howeth. Hux then suggested to Howeth that if he were to say something in the future which made her feel uncomfortable then she should tell Hux at or near the time the perceived inappropriate comment was made. Hux left the meeting and believed the matter was resolved. Howeth also mentioned that she had already spoken to Dorthea Mack, a Residential Community Director for Apartments for SMU, and that Mack was aware of the situation. 15. The next day Plaintiff was directed to meet with Mack. Plaintiff met with Mack who informed

him that she was not recommending him to return next year as a CA. Mack stated that her decision was based on her need to support her fellow staff member, Howeth. Mack stated that Howeth was uncomfortable with Hux and that he was in denial about his very troubling remarks to Howeth. Macks decision to prevent Plaintiff from to have his contract renewed for the following year was unfair since Hux was never given an opportunity to defendant himself against alleged violations of the Page 5 of 33

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university code of conduct which applied to all students. 16. Hux, a student, was never given an opportunity to defend himself against what SMU

considered very serious, troubling and established conduct by Hux. Hux was never provided a hearing to determine whether or not he violated any SMU policies, including the Student Code of Conduct. SMUs Code of Conduct stated that students are bound by the Student Code and all University policies and requires SMU to provide access to the schools student disciplinary process whenever a student is accused of violating the Code of Conduct. Specifically, the SMU Code of Conduct states that all students are presumed to be knowledgeable of, and have agreed to abide by, the rules and regulations set for in this Student Code of Conduct, both on and off campus. (Emphasis added.) Further, the Code of Conduct sets forth the following rights, freedoms, and responsibilities: all students are guaranteed freedom of expression, inquiry, and assembly. Students accused of violating the Code of Conduct retain the following rights: every student shall be granted a fair hearing before an impartial board or an administrative official. (Emphasis added.) The Vice President for Student Affairs is responsible for a students rights and the procedures set forth in the Code of Conduct. 17. Section 3.14 of the Student Code of Conduct specifically prohibits harassment, including

sexual harassment. SMU students are prohibited from engaging in behavior which is unwelcome sexual advances and other verbal, psychological and/or physical conduct of a sexual nature directed toward employees, students especially when the alleged conduct creates an intimidating, demeaning, hostile, or offensive residential, work, or academic environment. (Emphasis added.) 18. To be able to afford to attend SMU, along with his academic scholarship, Hux needed a CA

job which paid for his on campus living. He attempted to participate in the interview process with other residential supervisors to see if a different Residential Community Supervisor would hire him Page 6 of 33

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for the following year. So, after the meeting with Mack, he later went to an office where the interviews for next years CAs were being held. Although the door was opened, he knocked. He was told to wait a few minutes. Approximately ten to fifteen minutes passed when Mack walked by and asked why Plaintiff was at the interview. Plaintiff explained that he was there to be interviewed. Mack stated that he did not have an interview. Plaintiff replied that although Mack did not want him to work for her, he hoped another supervisor would give him an opportunity3. Mack replied that since she would not recommend him for a position then he could not work for anyone else. Plaintiff said okay and walked away. 19. After Plaintiff was told that he could not participate in the interviews, he met with Macks

supervisor, Adrienne Patmythes, Assistant Director for Training & Development for SMU. Patmythes had previously worked in residential life at SMU and Plaintiff mistakenly believed she might be able to help him. Plaintiff explained the meeting with Howeth and Mack. Patmythes stated that she, Mack and Howeth had discussed the allegations against Hux even though he was not given an opportunity to participate or otherwise be involved in the conversations. 20. Between January 21, 2011 and February 3 2011, Plaintiff participated in other meetings with

Mack about Howeth. On or about February 3, 2011, Plaintiff again met with Adrienne Patmythes regarding Howeth. Patmythes stated that Plaintiff was condescending and unprofessional. Patmythes became upset with Plaintiff during this meeting and alleged that Plaintiff came on to Howeth and victimized her. Patmythes suggested that Plaintiff lie about getting fired and to tell future employers that the reason he left SMU was because he decided he did not want to work there anymore.

3 Prior to attending SMU, Plaintiff was an residential advisor for two years at another college.

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21.

Plaintiff was also told that it was wrong and threatening for him to have sent Howeth an

email which requested that she quit communicating with him. Plaintiffs email to Howeth was in response to any email to Hux which began Hi Daniel and asked him if he wanted to participate in an upcoming training program. Plaintiff was told that he should move past the allegations of harassment made by Howeth. Patmythes stated that she would talk to her supervisor and Mack about the situation involving Howeth. She then stated that Mack had talked to another student, Kevin Eaton, who had confirmed the allegations made by Howeth. Plaintiff then contacted Kevin Eaton and asked if Mack had talked to him about Howeth. Eaton can be clearly heard answering no to Plaintiffs question. 22. On or about February 8, 2011, Plaintiff was directed to meet with Jennifer Post, a Residence

Life and Associate Director. Post emailed Plaintiff and asked him to come in to talk with her. She stated there was a pattern with Plaintiffs behavior towards Howeth. Post told Hux that he stepped over the line with Howeth. Post also attempted to counsel Plaintiff about his intentions and harassing behavior. 23. On or about February 10, 2011, Mack terminated Plaintiff from the position of Community

Assistant effective immediately. Macks decision to terminate Hux was based on two incidents. The first reason pertained to Howeth as noted above. Mack specifically referred to Plaintiffs inappropriate behavior and comments identified above. Further, Mack referred to another incident which occurred on February 5, 2011 when Plaintiff had called another CA about a trash problem and did not give his name. Mack accused Plaintiff of speaking aggressively and inappropriately on the phone with the CA. During this meeting, Mack did not want to discuss the Howeth matter. Mack also ordered Plaintiff to immediately move out of his SMU room which he did. Page 8 of 33

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24.

Approximately one day later, Plaintiff appealed his termination as a CA. He was referred to

Steve Logan, the Executive Director of Residence Life and Student Housing for SMU. He was informed that he would be contacted to schedule a meeting with Mr. Logan who would hear his appeal. 25. After submitting his appeal, he went to lunch at a nearby campus restaurant with two other

SMU students. While in line to order his food, an assistant from the SMU Vice Presidents office, Carol Harder, arrived at the same restaurant. The assistant entered the line behind Plaintiff. Plaintiff jokingly asked the assistant if she was following him. She said no and laughed. 26. On or about February 15, 2011, Plaintiff met with Betty McHone, Assistant Chaplain. Plaintiff

went over the past events. 27. On or about February 18, 2011, Plaintiff met with Logan. Upon his arrival he immediately saw

approximately two (2) SMU Police Officers who were present for the meeting. Also present was the SMU Chief of Police Richard Shafer. Chief Shafer asked Plaintiff if he had possession of a gun. Plaintiff responded no. This meeting was supposed to be a meeting to address Plaintiffs appeal. 28. While Shafer and his officers provided security, Logan informed Plaintiff that he had

something against women. At some point, Shafer commented that there was no need for anyone to know about this situation. Shaffer then stated that the SMU administration wanted Plaintiff to go to the mental health building for a mental evaluation. Hux was told that SMU did not want another Virginia Tech or Arizona. Shaffer commented that people already had the perception that Plaintiff was crazy and that he needed to go talk with the doctor so Plaintiff could prove them wrong. Shafer also stated that certain SMU administrators did not like the fact that Plaintiff was a former United

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States Marine. Plaintiff was also accused of stalking4 or following Carol Harderreferenced above the Assistant to the Vice President. Both Plaintiff and Harder deny such alleged violation. 29. Shafer then escorted Plaintiff to the mental health building. When he arrived at the facility,

Plaintiff was requested to sign some papers which had already been filled out before his arrival. Shaffer left once Plaintiff made it to the facility. 30. Plaintiff read the already completed paperwork which contained his personal information. The

paperwork also contained language which Plaintiff did not understand and appeared to allow his information to be disseminated. The papers also required Hux to sign an acknowledgement that he needed help. Plaintiff decided to leave the building without being interviewed. 31. On or about February 21, 2011, Plaintiff was directed to go to the SMU Police Department to

pick up the decision by Logan for the Plaintiffs appeal. Chief Shafer personally delivered the letter signed by Logan to the Plaintiff. In the letter, Logan denied Plaintiffs appeal. Logan further stated that it was not apparent that you understand the seriousness of your actions involving with both a professional staff member and a student staff member. Logan went on to state that Plaintiff had been making staff members fear for their safety and that Plaintiff has wrongly continued to deny some of the accusations presented which have since proven to be accurate. (Emphasis added.) Even though Plaintiff continued, at this point, to remain a student at SMU, Logan also stated that Hux should refrain from contacting anyone involved in this situation and stay away from the Hawk, Martin, Moore and Service House residential communities5. Plaintiff was never placed on any sort of restriction about campus access.

4 Section 3.14 of the Student Code of Conduct provides that it is a violation for a student to engage in conduct identified as stalking,
intimidation or threat that unreasonably impairs the security or privacy of another.

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32.

On or about February 22, 2011, Plaintiff met with Defendant Dr. Lisa Webb, Dean of Student

Life and Association Vice President of Student Affairs. She made inquiry, among other things, if she could help Plaintiff. Plaintiff discussed with Webb the past events and allegations. 33. On or about February 25, 2011, Plaintiff met with a Community Advisor. The CA conveyed

her fear of being on the bad side of Mack and was concerned that she could be fired. She told Hux that everyone on the staff was scared to talk. Macks whole staff had communicated their thoughts on the Hux matter. She also told Plaintiff that Mack stated to her, and other staff members, that his firing had nothing to do with the trash complaintreferenced above as one of the two reasons why Plaintiff was terminated effective immediately from his CA position. 34. On or about February 28, 2011, Plaintiff received an email from Carol Harder, Assistant to the

Vice President, who stated that Hux was required to meet with the assistant Vice President. On or about March 3, 2011, Plaintiff met with Troy Behrens6, Assistant Vice President of Student Affairs. 35. Behrens wanted to know what he could do to help Hux. Behrens told Hux he had spoken to

Logan who reported that there was perceived inappropriate behavior and infractions by Hux which resulted in inappropriate behavior. Plaintiff communicated to Behrens what had happened up until that point and time. Behrens stated that he was to obtain as much information as he could and provide all of it the next day to Dr. White, a clinical professor and Vice President for Student Affairs for SMU. 36. Behrens commented that it seemed to him that the three incidents alleged by Howeth

happened over a couple month period of time and that Plaintiff had never received any warnings or letter of reprimand that his behavior was inappropriate, or that his actions were troubling to another.

5 These were the names of SMU buildings which included student housing on campus. 6 Mr. Behrens has an undergraduate degree in psychology.

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Behrens correctly noted also that some of the allegations against him occurred in the fall semester where he received a glowing job performance review and he was never given any second changes or placed on probation. 37. Plaintiff asked that the matter be investigated. He wanted to ensure that what had happened to

him would not happen to others in the future. Behrens responded and stated that it appeared that the situation was handled wrong and that he would speak to Dr. White about the fact that Hux never received any due process. He also stated he would also speak to Logan about the fact that he did not give Plaintiff an actual hearing or appropriate process. Behrens also seemed to be genuinely concerned and wanted the matter be investigated. He also wanted any deficiencies to be corrected so that what happened to Hux would not happen in the future. Hux conveyed to Behrens that he was concerned about the matter following him in the future. Behrens confirmed that since Hux never received a paycheck from SMU that technically he was never employed and simply could forget about SMU. 38. On March 4, 2011, Plaintiff received an email about a mandatory candidates meeting for those

wanting to run for student senate. Plaintiff was interested in running for office. 39. Between approximately March 7-11 2011, Plaintiff was approached by another student about

attending a meeting that provided volunteer information for the upcoming spring break. Plaintiff took the student to the meeting and while at that meeting learned that one of the trips was to Boston to perform volunteer community service projects in the Boston area. Plaintiff asked if he could go on the trip with the Boston group. Plaintiff was told yes and was able confirm that there was an available plane ticket for him.

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40.

On or about March 10, 2011, Plaintiff met again with individuals from the Chaplains office.

Plaintiff was told that there were mistakes made on part of the university relating to him. Further, he was told that in other conversations with the SMU administration no one who participated believed Plaintiff to be dangerous. 41. On or about March 12, 2011, Katherine Elizabeth Jones emailed Plaintiff a reminder about the

upcoming spring break trip. However, later that same day Plaintiff received a call from a woman stating that he was not allowed to go on the trip because there was no plane ticket and he was told that it was also because there were reports that claimed Plaintiff had a problem with someone who would also go on the trip. Plaintiff then learned that Howeth would be on that trip and that was the reason Plaintiff would not be able to attend. 42. On or about March 13, 2011, Plaintiff received another email about the upcoming student

mandatory meeting for student senate candidates and that there was a change of location for the meeting. The email came from Katherine Victoria Ladner. On March 19, 2011, Plaintiff received another email reminder from Katherine Victoria Ladner to meet at the office portion located at Service House Building. 43. On March 20, 2011, Plaintiff attended the mandatory senate meeting. After the meeting, as

Plaintiff was leaving and away from the building, he was approached by several SMU Police Officers. At no time during this meeting did he engage in any inappropriate conduct. Plaintiff was already away from the house when an SMU Police Officer ran up behind him and ordered him back to the building. He was lied to when he told that there was a protective order in existence which prohibited him from being at the Service House building. At about this time, a crowd began to gather in the area. Plaintiff was searched without any cause or reason. Plaintiff was groped by the officer who searched him. Page 13 of 33

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At about this time, other SMU Police Officers appeared at the scene. 44. Shortly after the other police arrived, but prior to Plaintiff entering a vehicle driven by a

relative who was waiting for him, the SMU Police searched the vehicle without his consent, or any other valid consent. SMU Police located a handgun in the vehicle and immediately handcuffed Plaintiff and placed him in a patrol until despite the fact that Plaintiff had not violated any laws. After about approximately 25 minutes, Plaintiff had his handcuffs removed. The police also returned the handgun to the vehicle. Plaintiff was told to not bring any handguns to school, or have any in his vehicle whenever he was on campus despite the fact that Texas law allowed possession of handguns under some of the circumstances addressed by the police. Plaintiff then left the area. 45. On or about March 21, 2011, two SMU Police Officers waited for Plaintiff outside his last

class of the day. When Plaintiff left the class, he was confronted by the officers who ordered Plaintiff to come with them. Plaintiff was placed in a patrol unit and driven to the SMU Police Department. Although Plaintiff was handcuffed this time, he was also searched again and likewise groped. At the time he was searched, there were multiple officers surrounding the area where the Plaintiff was located. Plaintiff also had his car searched again by an Assistant Chief of Police at the direction of Shafer. At the police station, Shafer accused Plaintiff of trying to kill Former First Lady Laura Bush who had previously visited SMU. 46. Plaintiff was handed a letter written signed by Dr. Webb. In the letter Webb stated that Hux

was specifically told to stay away from the SMU Service House building by both Shafer and Logan. Webb also stated that Hux had agreed to go to the Center for Counseling and Psychological Services at the SMU Health Center. Webb then stated that she required Hux to take a mandatory administrative withdrawal from SMU. Webb also lied when she stated that the woman who called Page 14 of 33

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him about canceling the Boston trip did give a reason for the cancellation which pertained to Howeth, or any claims that he could not get along with others. 47. Plaintiff was removed from SMU immediately and prohibited from returning. Webb also

ordered that he have no contact whatsoever with SMU staff, student employees, or specifically with Stephanie Howeth. Webb further referenced Plaintiffs continued inappropriate behavior and attempts to intimidate and threaten RLSH staff members. 48. On or about March 22, 2011, SMU circulated a wanted poster displaying a headshot of

Plaintiff warning the SMU community to Be on the Lookout for Plaintiff. On or about March 25, 2011, Shafer during an interview stated that Hux was no longer a student at SMU and that a warning had been issued from the SMU Police Department that he was not allowed on campus. Shafer further added that Hux had violated university policy and that Hux was a safety concern. (Emphasis added.) Shafer at one point told Plaintiff that his finger prints were needed by the police but Hux refused to be finger printed by SMU. Causes of Action False Arrest/Unlawful Seizure 49. Plaintiff repeats and realleges above paragraphs, as if expressly set forth at length. The law

enforcement conduct identified herein constitutes a violation of Plaintiffs civil rights by subjecting him to unreasonable arrest and unlawful detention. Shaffer and his officers are persons for purposes of 42 U.S.C. 1983, and, at all times relevant to this cause of action, acted under color of state law. Shafer acting individually and in concert authorized SMU Police Officers to detain Plaintiff and search him and his vehicle. Plaintiffs constitutionally protected places, things and effects were seized and searched within the meaning of the Fourth and Fourteenth Amendments by Shafer and agents of Page 15 of 33

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SMU. 50. On at least one occasion, Shafer stood-by throughout a search and took no affirmative acts to

intervene, aware that there was no probable cause to believe the crimes alleged had been committed much less that Hux had committed them. 51. At no the time did Shafer neither seek or apply for a warrant nor could he as probable cause

did not exist to support any such application. Shafer knew that the requisite grounds did not exist to justify the arrest, detention or search of Plaintiff and his vehicle, in particular when in fact Plaintiff never gave his consent to search his vehicle. In furtherance of that conspiracy, Logan and Webb agreed to act in concert with Shafer by, among other things, providing and/or ratifying the false claims relating to Plaintiff. 52. A Fourth Amendment seizure occurs when an officer by means of physical force or show of

authority has in some way restrained the liberty of a citizen. Restriction of freedom to leave by physical restraint or by sufficient show of authority effects a seizure. The seizure of Plaintiff was unconstitutional. Additionally, Plaintiff was subject to a false arrest. The use of firearms, handcuffs, and other forcible techniques exceed the scope of an investigative detention and enter the realm of an arrest. An unlawful detention becomes an arrest when a reasonable person would believe that he is under arrest. Factors to be considered to determine if a dentition is an arrest are the intrusiveness of the stop, the aggressiveness of the police methods used, how much a plaintiffs liberty was restricted, the justification for the use of the tactics employed, and whether the police had a sufficient basis to fear for safety so as to warrant the action taken. 53. As a result of the Defendants conduct, and the conduct of Mack during the course and scope

of her employment with SMU which was ratified by SMU, Hux was subjected to an unconstitutional Page 16 of 33

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search and seizure in deprivation of his Fourth and Fourteenth Amendment rights. As a direct and foreseeable consequence of the deprivation of Plaintiffs rights, Hux suffered the loss of education, loss of privacy, loss of property, loss of liberty, physical harm, humiliation, public condemnation, emotional trauma, irreparable harm to his reputation, and economic loss, including but not limited to the costs of retaining counsel, investigators and other professionals reasonably necessary to prove his innocence. Abuse of Process and Conspiracy in Violation of 42 U.S.C. 1983 54. All of the foregoing allegations are incorporated here by reference. Shafer, Webb and Logan,

individually and in concert together and with Mack during the course and scope of her employment with SMU which was ratified by SMU, obtained the expulsion of Plaintiff, subjecting Plaintiff to unconstitutional searches and seizures, through an extortionate perversion of legal process unrelated to the purposes for which arrests or detentions were intended. For example, the Defendants conspired to obtain the detention and arrest of Plaintiff for the unauthorized purposes of: A. Stigmatizing Plaintiff in the local community and in the eyes of thousands of people at SMU and the Dallas metroplex; Generating and then galvanizing the public condemnation of Plaintiff; and Retaliating against Plaintiff for asserting his constitutional and university rights.

B. C.

55.

The Defendants, acting individually and in concert, fabricated a false and incendiary record

directed to Plaintiff. Intentionally lied about the reasons for detaining, arresting and searching the Plaintiff. They then provided to the press information about Plaintiff which stigmatized him. 56. By virtue of these Defendants abuse of the processes, Plaintiff was stigmatized in the eyes of

the local community. By design, the Defendants used the detention, arrest and search of Plaintiff for Page 17 of 33

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the unauthorized purpose of subjecting Plaintiff to extortionate pressures and extraordinary humiliation, fear, shame and distress. 57. Further, for purposes of continuing the Plaintiffs stigmatization indefinitely, these Defendants

conspired to conceal from the public the fact that harassment and stalking allegations were unproven, fabricated and in furtherance of this conspiracy. SMU, Webb, Logan and Shafer repeatedly ratified, verified, and/or manufactured evidence to support the sensationalized false statements made. The conduct of SMU, Webb, Logan and Shafer University were malicious and evinced a callous disregard for and deliberate indifference to Plaintiffs constitutional rights. 58. As a result of the wrongful conduct of SMU, Webb, Logan and Shafer directed to Plaintiff,

the Plaintiff was seized, detained and searched without probable cause or reasonable suspicion in deprivation of his rights guaranteed by the United States Constitution in particular the Fourth and Fourteenth Amendments thereto. 59. As a direct and foreseeable consequence of these deprivations, Plaintiff had suffered the loss

of education, loss of privacy, loss of property, loss of liberty, physical harm, emotional trauma, and irreparable harm to their reputations, and economic loss, including but not limited to the costs of retaining counsel, experts, investigators and others in order to defend himself against the false claims and fabrication of evidence throughout the investigation of Howeths claims. Violation of Right to Free Speech 60. Plaintiff repeats and realleges the above paragraphs, as if expressly set forth at length. The

Defendants actions described above were committed under the color of law in derogation of Plaintiffs clearly established rights under the First Amendment to exercise freedom of speech, and under the Fourteenth Amendment. Plaintiff suffered official harassment for exercising his First Page 18 of 33

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Amendment rights. The bad faith investigation and legal harassment violated that freedom and the actions of the Defendants were undertaken with substantial motivation of retaliating against Plaintiff. Conspiracy 61. Plaintiff repeats and realleges the above paragraphs as if expressly set forth at length. For an

extended period of time, the Defendants, individually and through their agents, officers or employees, including but not limited to Mack, engaged in a concerted effort with themselves, and Mack, Howeth, Logan and Webb, as well as other non-parties, were willful participants in the joint action to implement a plan to rid SMU of Plaintiff, as discussed above, and to have removed the Plaintiff from SMU, which concerted effort constitutes a conspiracy to violate Plaintiffs civil rights and other rights and to damage Plaintiff for which Plaintiff seeks redress. 62. The actions and omissions of Defendants were taken with deliberate indifference to and

deliberate disregard for the known Constitutional rights of Plaintiff not to be deprived of life or liberty without due process of law as guaranteed by the laws of the United States. Due Process and Equal Protection 63. All allegations made heretofore in the above paragraphs are incorporated herein by reference

as if made in this paragraph. Plaintiff will also show that the SMU Police Departments actions, procedures and policies were actions under color of law in derogation of Plaintiffs clearly established right to enjoy and practice freedom of speech under the U.S. Constitution and obtain due process relating to his protected property interests. 64. The Equal Protection Clause of the Fourteenth Amendment directs states to treat all persons

similarly situated alike. The Equal Protection Clause is violated by intentional discrimination, which implies that the decision-maker singled out a particular group for disparate treatment and selected a Page 19 of 33

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course of action, at least in part, for the purpose of causing an adverse effect on an identifiable group. A governmental defendant violates the Equal Protection clause when its action classifies or distinguishes between two or more relevant persons or groups. Also, a protection claim may be brought by a "class of one," where the Plaintiff alleges that he has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment. Here, Plaintiff is a member of an identifiable group. Additionally, Plaintiff alleges that he has been intentionally treated differently from others similarly situated, and that there was no rational basis for the difference in treatment. Breach of Contract #1 by SMU 65. Hux realleges and restates the matters set forth in the above paragraphs as if set forth in full

herein. The relationship between Hux and SMU was, in part, contractual in nature. The terms of the contract were set forth between Hux and SMU in the contract relating to the position of Community Advisor. Hux substantially performed all of his contract obligations with SMU. SMU did not perform its contractual obligations to Hux in at least the following respects: by terminating him without cause and by fabricating the reasons for termination. SMUs breach of contract caused injury to Hux and resulted in damages. Breach of Contract #2 by SMU 66. Hux realleges and restates the matters set forth in the above paragraphs as if set forth in full

herein. The Student Handbook is a binding contract with respect to the extent of the Universitys authority to regulate, discipline, punish and suspend Plaintiff from the University, among other limitations and obligations.

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67.

Certain of the terms of the contract between Hux and SMU were published in the SMU

Student Handbook (hereinafter Handbook) which did and does provide, in part, that every student charged with a violation of the Student Code of Conduct set forth in the Handbook the student would be entitled to the benefit of the policies outlined in the Handbook. Further, the Handbook required that those students accused of violating institutional regulations or federal, state or local laws upheld by SMU retained the right to a fair hearing before an impartial judiciary body of peers, or an administrative official, whichever was deemed appropriate by the judicial official, after consultation with the student. Further, SMU was required to provide certain procedures whenever its actions effectively cancel a students scholarship. Hux substantially performed all of his contract obligations with SMU. SMU willfully breached material terms of the Student Handbook and did not perform its contractual obligations to Hux in at least the following respects: a. SMU did not provide Hux with a fair hearing before an impartial judiciary body of peers, or administrative official, whichever is deemed appropriate by the judicial officer, after consultation with the student; b. SMU failed to satisfy the standard of proof required to sustain any charge brought against Hux; c. SMU failed to conduct a hearing before SMUs regular student disciplinary authority d. SMU, through its agents, failed to maintain impartiality about the matter and about Hux; e. SMU, through its agents, acted as an advocate and failed to consider equally the needs of Hux; and/or f. SMU failed to inform Hux of all alternatives and options through a counselor in the Counseling and Testing Center; and/or g. SMU officials with final policymaking authority permitted, condoned, ratified, and even participated in the ongoing public humiliation, condemnation, harassment by the Universitys faculty, administrators and staff, in a clear violation of the University Contracts promise of Page 21 of 33

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protection from such abuse at the hands of faculty, administrators, staff or other University employees on campus, in their classrooms, and on University-owned property situated offcampus. h. SMUs nonperformance constituted a material breach of the contractual obligations of SMU and violated its own written and contractually guaranteed procedures. SMUs breach of contract caused injury to Hux and resulted in damages as set forth herein. Intentional Infliction of Emotional Distress 68. Hux realleges and restates the matters set forth in above paragraphs by reference as if set forth

in full herein. The Defendants intentionally, recklessly and/or without basis harassed, ridiculed and maliciously inflicted emotional distress on Hux. The Defendants caused Hux to lose his housing with SMU and the ability to attend and graduate from SMU without an adequate basis and caused him severe emotional distress. The Defenants labeling of Hux as a liar caused him severe emotional distress and physical injury. The Defendants conduct was extreme and outrageous and resulted in physical injuries and damages to Hux. Breach of Duty of Good Faith and Fair Dealing-SMU 69. Hux realleges and restates the matters set forth in the above paragraphs as if set forth in full

herein. SMU had a duty to Hux to deal with him in good faith and fairly inasmuch as accompanying the agreements between SMU and Hux. SMU therefor had the common law duty to perform with care, skill, reasonable expedience and faithfulness the thing agreed to be done. Even a negligent failure to observe any of those conditions is a tort as well as a breach of contract. SMU breached its covenant of good faith and fair dealing. As the result of SMUs breach of its duty of good faith and fair dealing, Hux has been damaged.

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Defamation-False Public Statements in Violation of 42 U.S.C. 1983 and under Texas Law 70. Plaintiff incorporates the foregoing allegations by reference here. Shafer, Logan and Webb are

persons for purposes of 42 U.S.C. 1983 and Texas common law, and, at all times relevant to this cause of action, were acting under color of law. 71. Shafer, Logan, Webb, and SMU, acting individually and in concert, published false and

stigmatizing statements about and relating to the Plaintiff. Examples of the Defendants stigmatizing false public statements include: a. Hux planned to shoot Laura Bush; b. Hux was crazy; c. Hux was dangerous.; d. Hux had violated the SMU Code of Conduct; e. Hux had stalked an SMU employee; f. Hux had harassed an SMU employee; and g. Hux was a liar. 72. The Defendants statements which charged Plaintiff with multiple forms and instances of

illegality, dishonesty or immorality were false, and were made in conjunction with and/or in connection with deprivations of Plaintiffs tangible interests as alleged herein; for example: a. The deprivation of Plaintiffs rights under United States Constitution and the First, Fourth, and Fourteenth Amendments thereto as alleged in this Complaint; b. The malicious and public deprivations of Plaintiffs right to compete and participate in university student senate; and c. The deprivation of Plaintiffs educational status as a student enrolled at SMU.

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73.

The foregoing deprivations were temporally and causally connected and proximate to the

stigma to which Defendants subjected Plaintiff, and these same Defendants who imposed the stigma explicitly or implicitly adopted the stigmatizing statements. The Defendants statements were false, and were published via local media outlets, with the malicious and evil intent to stigmatize the Plaintiff in the eyes of the public, and deprive Plaintiff. The false public statements were made in part in connection with the violations of Plaintiffs constitutional rights, as alleged herein, and also in connection with the deprivation of the other tangible Texas common law interests alleged herein. Plaintiff had no opportunity before or after their stigmatization to formally and directly clear his good name through any form of proceedings. 74. As a direct and proximate result of Defendants conduct, including the conduct of Mack

during the course and scope of her employment with SMU which was ratified by SMU, Plaintiff was deprived of his rights under the United States Constitution, and the First, Fourth, and Fourteenth Amendments thereto. Further, such defamatory comments breach common law prohibitions against committing the acts of slander and libel. 75. These statements also caused damage to his business reputation. The actions of Defendants,

and the actions of Mack during the course and scope of her employment with SMU which was ratified by SMU, were committed without legal justification or excuse and in purposeful or reckless disregard for the truth and in purposeful or reckless disregard for the rights of Plaintiff, and punitive damages should be awarded against Defendants, in an amount equivalent to three times the actual damages suffered by Plaintiff as allowed by law.

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Interfering with the Right to Engage in Political Processes in Violation of 42 U.S.C. 1983 and Conspiracy 76. Plaintiff incorporates the foregoing allegations by reference here. Webb, Logan and Shafer are

persons, as that term is used in the text of 42 U.S.C. 1983. 988. Under color of state law, these defendants directed SMU Police Officers to prevent Plaintiff from voting, registering and/or participating in the upcoming student council elections. The Defendants conduct was a reckless and callous disregard for, and deliberate indifference to, Plaintiffs constitutional rights. 77. As a result of the conduct of these Defendants, Plaintiff was deprived of his rights under the

United States Constitution as well as the First, Fourth and Fourteenth Amendments thereto. As a direct and foreseeable consequence of these deprivations, Plaintiff has suffered loss of education, loss of privacy, loss of property, loss of liberty, physical harm, emotional trauma, and irreparable harm to their reputations, and economic loss, including, but not limited to the costs of retaining counsel, investigators and others in order to defend themselves against the false claims and fabrication of evidence. Failure to Prevent Deprivation of Constitutional Rights In Violation of 42 U.S.C. 1983 78. Shafer and SMU are persons as that term is used in the text of 42 U.S.C. 1983, and, at all

relevant times, were acting under color of state law. In the presence and within the knowledge of the Shafer and SMU, Plaintiff was subjected to ongoing and repeated violations of his constitutional rights by Shafer and SMU Police Officers, individually and in concert with others, within the SMU territorial jurisdiction as alleged herein. SMU and Shafer had a reasonable opportunity to prevent the harm caused by SMUs public officers ongoing violations of Plaintiffs constitutional rights and the harm those violations were causing; yet they turned a blind eye to the violations and did nothing. Page 25 of 33

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79.

As a direct and proximate result of the SMU and Shafers failure or refusal to act when they

had a reasonable opportunity to prevent those harms, Plaintiff was deprived of his rights under the United States Constitution, and the First, Fourth, and Fourteenth Amendments thereto. As a direct and foreseeable consequence, Plaintiff suffered the loss of education, loss of privacy, loss of property, loss of liberty, physical harm, humiliation, public condemnation, emotional trauma, irreparable harm to his reputation, and economic loss, including but not limited to the costs of retaining counsel, experts, investigators and other professionals reasonably necessary to prove his innocence. Monell Liability for Violations of 42 USC 1983 80. Plaintiff incorporates the preceding allegations by reference here. SMU is a person whose

employees were acting under color of state law for purposes of the application of 42 U.S.C. 1983. SMU devised and enacted policies or customs, pursuant to which SMU and the SMU Police which disproportionately and unconstitutionally enforced the criminal laws against SMU students. For example, pursuant to policies, SMU Police are encouraged, authorized, and/or instructed to: a. Execute warrantless raids of SMU students homes in the absence of exigent circumstances; b. Obtain warrants and cause other legal process to issue against SMU students for ulterior and unauthorized purposes unrelated to the purposes of the legal process; c. Abuse SMU students under circumstances where permanent residents were not so abused. d. Subject SMU students to protracted, unconstitutional searches, seizures and investigations, in the absence of probable cause or long after probable cause and/or reasonable suspicion has been extinguished for purposes of publicly humiliating and otherwise abusing SMU students; e. Fabricate witness accounts of events that never happened to facilitate convictions in court or to subject SMU students to condemnation of the community, the University Page 26 of 33

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Administration, and to trigger University sanctions for conduct that never happened; f. Turn a blind eye and do nothing when deprivations of SMU students constitutional rights are occurring in their officers presence or within their knowledge; g. Intentionally deprive SMU students of their rights during police investigations involving SMU Students, where the rights of similarly situated permanent residents were honored; h. Willfully and intentionally act to subject SMU students to public humiliation on the streets and in commercial establishments of University Park; i. Target certain SMU students for grossly disproportionate enforcement of the criminal laws in police decisions to charge, to arrest and incarcerate, and to require bail in contravention of SMU Police Department General Orders and Standard Operating Procedures.

81.

To a reasonable policymaker, it would be clear that the foregoing established policy or custom

constituted a deprivation of the constitutional rights of students, and would lead to the deprivation of Plaintiffs constitutional rights. Officials with Final Policymaking Authority Participated in or Directed the Violations of Plaintiffs Constitutional Rights 82. As alleged in the independent causes of action for violations of 42 U.S.C. 1983, supra, SMU

officials with final policymaking authority participated in conduct that directly and proximately caused the violations of Plaintiffs constitutional rights, as alleged in the foregoing causes of action. 83. SMU officials with final policymaking authority all directed conduct that directly and

proximately caused the deprivation of Plaintiffs constitutional rights. Similarly, Shafer was at all relevant times, an SMU official with final policymaking authority with respect to the SMU Police Department and the investigation of Hux. Shafers decisions in that capacity created the unreasonably high likelihood that Plaintiffs constitutional rights would be violated by officers following Shafers directives and decisions. Page 27 of 33

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84.

To a reasonable policymaker, it would have been plainly obvious that the final policymakers

directives and decisions would lead to the deprivation of Plaintiffs constitutional rights. As a direct and proximate result of the directives and decisions of University officials with final policymaking authority officials with final policymaking authority with respect to the allegations against Hux, Plaintiff was deprived of his constitutional rights under First, Fourth, and Fourteenth Amendments to the U.S. Constitution. Supervisory Liability for Violations of 42 U.S.C. 1983 85. Plaintiff incorporates the preceding allegations by reference here. SMU Police and SMU

Officials, in their individual capacities, persons within the meaning of 42 U.S.C. 1983. SMU Police and SMU Officials: a. Failed to supervise its Police officers, failed to train, and failed to supervise properly the training and conduct of its employees relating to investigation, detaining, searching, arresting, detaining and assisting with arrests and detentions; b. Failed to enforce the laws of the State of Texas, and the provisions of the Constitution of the United States concerning the proper circumstances for detaining, searching, using force, arresting, assisting with arrests detentions; and allowing the use of employees for purely personal reasons unrelated to law enforcement and/or for purposes of intimidation and harassment; and c. Allowed the use of its personnel for personal vendettas and unfounded charges against its citizens. 86. Defendant Shafer, an SMU policymaker, took actions that violated Plaintiffs constitutional

rights and his illegal actions establish liability on behalf of SMU. Shafer had final authority over significant matters involving the exercise of discretion relating to investigation, detention and arrest over citizens. As a final decision maker, Shafers actions subject SMU to liability. Further, SMU had

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a policy and practice of improper and unequal enforcement of this its laws. Plaintiffs injuries and deprivations of constitutional rights were proximately caused by Defendants: a. Inadequate supervision of the training and conduct of its employees, including, but not limited to, allowing officers to intimidate, threaten and take other illegal action in order to help or assist SMU; b. Improper policies, traditions, customs and practices concerning the selective investigation, detention and arrest of citizens, and/or lack thereof; and c. The policy, custom, or tradition of SMU and its police played part in the deprivation of Plaintiffs rights, and the policy or custom included poor training of law enforcement personnel. Breach of Fiduciary Duty & Aiding and Abetting 87. Plaintiff incorporates the foregoing allegations by reference here. A fiduciary relationship

existed between Plaintiff and SMU with regard to the Student Code of Conduct and processes for enforcement. Plaintiff placed Mack, Webb, and Logan in a position of special confidence and trust with respect to his rights under the Student Code of Conduct. Plaintiff entrusted and confided in these individuals that the due protection of his communications, thereby putting Defendants in a position of control over Plaintiffs interests in this process. 88. At a minimum, this relation of trust and confidence imposed a fiduciary duty upon the

Defendants to assist Plaintiff; the duty to notify Plaintiff before their invasion and disclosure of their intent to find him guilty of Texas laws and SMU Code of Conduct violations. SMU deliberately breached its fiduciary duties to Plaintiff. 89. As a direct and proximate result of the Defendants breach of their fiduciary duties, Plaintiff

suffered damages in an amount to be determined by a jury at trial.

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Negligence 90. Plaintiff incorporates the foregoing allegations by reference herein. SMUs employees,

including Mack, during the course and scope of their employment with SMU which was ratified by SMU, owed Plaintiff a duty of care to warn and otherwise affirmatively act to protect Plaintiff from harm by virtue of unique relationships that existed between the University and the Plaintiff as a student. The special relationship is predicated upon unique features of the relationship between the University and the Plaintiff. SMU breached the duty of care it owed to the Plaintiff as alleged herein and by, for example failing to act with respect to the known and foreseeable dangers relating to allegations. 91. The Universitys failure to provide a qualified, competent SMU official familiar with the Plaintiffs legal and university rights and with standard investigative practices to oversee the investigation and particularly to intervene to prevent likely retaliatory efforts. As a direct and foreseeable consequence, Plaintiff has suffered and continues to suffer from emotional conditions causing emotional, mental, and physical harm. Intentional Interference With Contractual Relations and Prospective Advantage 92. Hux reallages and restates the matters set forth in the above paragraphs as if set forth in full

herein. The actions of Logan, individually and as agent of SMU, and by others including in conspiracy with them, constituted intentional interference with existing contractual and/or prospective business relations with SMU, i.e., the scholarship/contractual relationship between Hux and SMU. These individuals, and others in conspiracy with them, interfered with contractual relations without justification and unjustly caused Hux financial loss and physical and emotional harm. Hux alleges (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) Page 30 of 33

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that the act was the proximate cause of her damage; and (4) that actual damage and loss occurred. Hux also alleges (1) the reasonable probability that contractual relationships would have been entered; (2) an intentional, malicious intervention with the formation of those relationships; (3) lack of privilege or justification; and (4) resulting actual damage or loss. Negligent Retention 102 Hux reallages and restates the matters set forth in the above paragraphs as if set forth in full

herein. SMUs conduct as set forth herein constitutes the tort of negligent retention for the keeping and safeguarding of Mack despite its knowledge that Mack had engaged in similar conduct previously and despite it knew or should have known that the conduct of Mack as alleged herein was improper and contrary to the polices and procedures of SMU. 103. The negligence of SMU was willful and malicious with reckless disregard for Plaintiff=s rights

and thus Plaintiff seeks the recovery of exemplary damages in an amount within the jurisdictional limits of this Court. Negligent Training and Supervision 104. Hux reallages and restates the matters set forth in the above paragraphs as if set forth in full

herein. SMUs conduct as set forth herein constitutes the tort of negligent training and supervision of Mack, Logan, and Webb. As a proximate result of SMUs actions, Plaintiff has been damaged. The actions of SMU were willful and malicious, with reckless disregard for Plaintiff=s rights, and thus Plaintiff seeks the recovery of exemplary damages in an amount within the jurisdictional limits of this Court.

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Exemplary Damages 105. 106. Hux reallages and restates the matters set forth in the paragraphs as if set forth in full herein. The Defendants acts and omissions were committed with malice or reckless indifference to

Huxs rights. In order to punish the Defendants for engaging in unlawful practices and to deter such actions and/or omissions by it, Defendants should be assessed exemplary damages. Attorneys Fees 107. Because of the Defendants actions it was necessary that Hux secure the services of the

undersigned attorneys to enforce and protect his rights and therefore the Defendants should be ordered to pay reasonable and necessary attorney's fees as follows: a. b. for the preparation and trial of this lawsuit, an amount not less than $150,000; and an amount equal to all costs and disbursements, including expert witness fees. Compensatory Damages 108. As a direct and proximate result of Defendants wrongdoing, Hux has suffered and will

suffer the following economic losses: a. b. c. d. e. f. g. h. emotional and physical pain and injury; inconvenience; prejudgment interest; loss of enjoyment of life; past mental anguish; future mental anguish; reasonable costs of medical care; loss of past earnings;

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i. j. k. l. m. n. o.

loss of future earnings and earning capacity; injury to reputation; past loss of scholarships and grants in aid; future loss of scholarships and grants in aid; consequential and incidental costs, including the costs of relocating; loss of tuition; and loss of value of a degree and academic scholarship from SMU. PRAYER FOR RELIEF

WHEREFORE, Plaintiff Daniel Hux respectfully prays that judgment be entered in his favor and against Defendants, jointly and severally, for damages set forth above; exemplary damages as allowed by law, together with interest as allowed by law; attorneys fees, costs and expenses, as set forth above and awarding such other and further relief to which she may be entitled at law or in equity. Respectfully submitted, LAW OFFICE OF MICHAEL P. KELLY By:/s/Michael P. Kelly Michael P. Kelly State Bar No. 11227280 P.O. Box 150589 4024 Elm Street, Suite A Dallas, Texas 75315-0589 P: (214) 821-7255 F: (214) 821-7251 mptkelly@sbcglobal.net Attorney for Plaintiff

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