United States District Court, D. Nebraska
AMENDED MEMORANDUM AND ORDER
SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
the Ban was issued, an investigator with UNL contacted
Perkins. Title IXcharges 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.
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
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
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.
Mootness Under Rule 12(b)(1)
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.
Conversion to Motion for Partial Summary Judgment
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).
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.
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. ...