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Perkins v. University of Nebraska

United States District Court, D. Nebraska

November 13, 2017

UNIVERSITY OF NEBRASKA, BOARD OF REGENTS OF THE UNIVERSITY OF NEBRASKA, UNIVERSITY OF NEBRASKA-LINCOLN UNIVERSITY POLICE DEPARTMENT, OWEN YARDLEY, Police Chief, University of Nebraska-Lincoln; CHRISTINE JACKSON, Vice Chancellor for Business and Finance for the University of Nebraska-Lincoln; and JOHN AND JANE DOE 1 TO 100, unknown State actors; Defendants.



         This matter is before the Court on Defendants' Motions to Dismiss, ECF No. 15. Defendants assert that this Court lacks subject matter jurisdiction and/or that Plaintiff Jeremiah Perkins failed to state a claim on which relief can be granted. Because all parties have submitted matters outside the pleadings, the Court will convert the Motion, in part, to one for summary judgment. For the reasons stated below, the Motions will be granted.


         Except as indicated, the following facts are those alleged in the Complaint, ECF No. 1, and assumed true for purposes of the Motion to Dismiss for lack of subject matter jurisdiction. Properly referenced and undisputed material facts also have been considered for purposes of summary judgment, regarding the Defendants' assertion that the Plaintiff has not presented a claim on which relief can be granted.

         Plaintiff Jeremiah Perkins was a student at the University of Nebraska on its Lincoln (UNL) campus since the fall of 2016. On April 14, 2017, one or more students assaulted Perkins. On April 15, 2017, Defendant University Police Department (UPD) issued Perkins a “Trespass Warning Ban and Bar Notice” (the “Ban”), which banned Perkins from the UNL campus, as well as any other University of Nebraska property, for a period of not less than 4 years. The Ban allowed Perkins to submit an appeal within 5 business days after receipt, which Perkins did.

         On April 20, 2017, Defendant Vice Chancellor Christine Jackson issued a denial of the appeal without a formal hearing. Perkins alleges that Jackson and Defendant Owen Yardley, the UPD Chief of Police, had the discretion and authority to afford Perkins the opportunity for a hearing on the Ban, but failed to do so. Perkins further alleges that he was not advised he would be given the opportunity to make any further challenge to the Ban until after he filed his Complaint in this case. Perkins Aff., ECF No. 18-1, Page ID 126.

         After the Ban was issued, an investigator with UNL contacted Perkins. Title IX[1]charges were brought against Perkins, and Perkins met with Title IX investigators as early as June 6, 2017. Id. Perkins alleges that the Title IX investigators represented to him that, regardless of the outcome of the Title IX investigation, the Ban would not be affected. However, at some point after Perkins filed his Complaint, on June 13, 2017, the University of Nebraska notified Perkins that the Title IX proceedings could affect the Ban. Id.

         On August 7, 2017, the UNL Student Conduct Board held a hearing regarding the Title IX charges against Perkins. The Board held that Perkins violated the UNL Student Code of Conduct and imposed sanctions. Perkins was sent notice of the Board's decision on August 10, 2017, and was informed that he could file an appeal of the decision before August 18, 2017.

         Also on August 10, 2017, Yardley emailed a letter to Perkins informing him that the Ban had been lifted. ECF No. 16-1, Page ID 101. The University's trespass procedures had been amended to provide that a person filing an appeal of a ban-and-bar notice could request an in-person or telephonic hearing. Id. Unless such a request were made and granted, appeals were to be submitted based on written documentation. Id.

         Perkins alleges that although the Ban was lifted and the procedures for challenging the Ban were amended, he was deprived of due process rights under the Fourteenth Amendment, and he incurred significant attorney's fees and other damages due to Defendants' failure to provide him an opportunity for a hearing. See Perkins Aff. ¶ 7, ECF No. 18-1, Page ID 126. Defendants argue that the Court lacks subject matter jurisdiction and that they are entitled to immunity from suit.


         I. Mootness Under Rule 12(b)(1)

         “[M]ootness and standing are questions of subject matter jurisdiction.” Doe v. Nixon, 716 F.3d 1041, 1047 (8th Cir. 2013). “In a facial challenge to jurisdiction, the court presumes all of the factual allegations concerning jurisdiction to be true and will grant the motion only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Young America Corp. v. Affiliated Comput. Servs., 424 F.3d 840, 843-44 (8th Cir. 2005) (citing Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In a factual challenge to jurisdiction, “there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case.” Osborn v. United States, 918 F.2d 724, 730 (8th Cir. 1990). “In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Iowa League of Cities v. EPA, 711 F.3d 844, 861 (8th Cir. 2013) (citing Osborn, 918 F.2d 724, 730). The plaintiff has the burden of proving jurisdiction exists; “[h]owever, the ‘heavy' burden of proving mootness falls on the party asserting the case has become moot.” Kennedy Building Associates v. Viacom, Inc., 375 F.3d 731, 745 (8th Cir. 2004) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). “Once the evidence is submitted, the district court must decide the jurisdictional issue, not simply rule that there is or is not enough evidence to have a trial on the issue.” Osborn, 918 F.2d 724.

         II. Conversion to Motion for Partial Summary Judgment

         The Court will convert Defendants' Motion, in part, into one for summary judgment because both parties submitted matters outside the pleadings. Rule 12(b) “does not require the court to give affirmative notice to the parties of its intent to consider matters outside the complaint.” Angel v. Williams, 12 F.3d 786, 788 (8th Cir. 1993). Constructive notice of the court's intention to consider matters outside the pleading is sufficient. See Id. at 789. In George v. City of St. Louis, the Eighth Circuit held that the district court properly converted a motion to dismiss to one for summary judgment where the defendants' motion was clearly worded in the alternative; plaintiffs themselves submitted to the district court matters outside the pleadings; and plaintiffs specifically addressed the summary judgment standard in their brief to the district court. 26 F.3d 55, 57 (8th Cir. 1994).

         All parties in this case submitted evidence outside the pleadings in support of their respective positions. See Defendants' Index of Evidence, ECF Nos. 16, 20; Plaintiff's Index of Evidence, ECF No. 18. Although Defendants did not word their Motion in the alternative, Perkins himself submitted an affidavit that addressed several matters not alleged in his Complaint. Perkins's affidavit included assertions regarding the damages he has suffered and the sufficiency and expediency of the hearing he received. In his brief, Perkins specifically discussed the Court's discretion to consider matters outside the pleadings and convert the Motion into one for summary judgment and, similar to the plaintiffs in George, referenced the summary judgment standard. Pl. Br. at 4, ECF No. 19, Page ID 132. The Court has considered the parties' evidence outside the pleadings with respect to Defendants' assertion of the qualified immunity defense. Accordingly, for purposes of evaluating qualified immunity, the Court converts Defendants' Motion to one for summary judgment.

         “Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Garrison v. ConAgra Foods Packaged Foods, LLC, 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed.R.Civ.P. 56(c)). “Summary judgment is not disfavored and is designed for every action.” Briscoe v. Cty. of St. Louis, 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (quoting Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view “the record in the light most favorable to the nonmoving party . . . drawing all reasonable inferences in that party's favor.” Whitney v. Guys, Inc., 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp., 356 F.3d 920, 923-24 (8th Cir. 2004)). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Se. Mo. Hosp. v. C.R. Bard, Inc., 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The moving party need not produce evidence showing “the absence of a genuine issue of material fact.” Johnson v. Wheeling Mach. ...

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