Hess v. Board of Trustees of Southern Illinois University et al
Filing
52
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT. Plaintiff Nicholas Hess (Hess) has moved for summary judgment on his claims against Defendants, The Board of Trustees of Southern Illinois University (SIU), Chad Trisler individually and in his official capacity (Trisler), Katherin Sermersheim, individually (Sermersheim), and Rita Cheng, individually (Cheng) (Defendants, collectively, Defendants). Dkt. No. 31. Defendants have also moved for summary judgment on Hess claims against them. Dkt. No. 32. Previously, Defendants filed a Motion to Dismiss that remains pending. Dkt. No. 27. For the reasons stated herein, the Court DENIES Hess Motion for Summary Judgment; GRANTS Defendants Motion for Summary Judgment and GRANTS in part and DENIES in part Defendants Motion to Dismiss. Signed by Judge Larry J McKinney on 12/9/2015. (bgt, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NICHOLAS HESS,
Plaintiff,
vs.
THE BOARD OF TRUSTEES OF
SOUTHERN ILLINOIS UNIVERSITY,
CHAD TRISLER, individually and in his
official capacity;
KATHERINE SERMERSHEIM, individually
and in her personal capacity; and
RITA CHENG, individually and in her
personal capacity,
Defendants.
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No. 3:14-cv-00727 LJM
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Nicholas Hess (“Hess”) has moved for summary judgment on his claims
against Defendants, The Board of Trustees of Southern Illinois University (“SIU”), Chad
Trisler individually and in his official capacity (“Trisler”), Katherin Sermersheim,
individually (“Sermersheim”), and Rita Cheng, individually (“Cheng”) (Defendants,
collectively, “Defendants”). Dkt. No. 31. Defendants have also moved for summary
judgment on Hess’ claims against them. Dkt. No. 32. Previously, Defendants filed a
Motion to Dismiss that remains pending. Dkt. No. 27. For the reasons stated herein, the
Court DENIES Hess’ Motion for Summary Judgment; GRANTS Defendants’ Motion for
Summary Judgment and GRANTS in part and DENIES in part Defendants’ Motion to
Dismiss.
I. FACTUAL & PROCEDURAL BACKGROUND
A. PROCEDURAL HISTORY
On June 24, 2014, Hess filed his Complaint in which he set forth four claims for
relief: Count I: Due Process; Count II: Breach of Contract; Count III: Breach of Duty of
Good Faith and Fair Dealing; Count IV: Punitive Damages. Dkt. No. 5. On June 26,
2014, Hess filed his Amended Complaint again alleging the same four claims. Dkt. No.
6.
On July 18, 2014, rather than filing an Answer, Defendants moved to dismiss the
Amended Complaint. Dkt. No. 12. On August 18, 2014, Hess both moved to amend his
Amended Complaint and responded to Defendants’ Motion to Dismiss. Dkt. Nos. 18 &
19. On August 19, 2014, the Court granted Hess’ Motion to Amend/Correct with leave to
file his Second Amended Complaint instanter. Dkt. No. 20.
On August 20, 2014, Hess filed his Second Amended Complaint in which he
alleged the following claims: Count I: Due Process – Property Interest; Count II: Liberty
Interest; Count III: Punitive Damages. Dkt. No. 22. On August 22, 2014, the Court issued
an order declaring Defendants’ Motion to Dismiss moot in light of the filing of Hess’
Second Amended Complaint. Dkt. No. 23.
On September 3, 2014, the Court entered a Scheduling and Discovery Order that
adopted the parties’ Proposed Scheduling and Discovery Order, as modified (“Scheduling
Order”). Dkt. No. 26.
On September 3, 2014, again, rather than filing an Answer, Defendants filed a
motion to dismiss the Second Amended Complaint. Dkt. No. 27. Defendants claimed
that Counts I and II should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil
2
Procedure (“Rule 12(b)(1)”) as against the Board of Trustees because such claims were
barred by the Eleventh Amendment. Id. at 2. Defendants further argued that Hess’
Second Amended Complaint failed to plead facts to establish that he had either a property
or a liberty interest that entitled him to any due process and that his allegations did not
meet the pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Dkt. No. 27 at 2-3. Defendants also presented
a qualified immunity argument asserting that the law entitling Hess to the relief he seeks
was not clearly established. Id. at 3.
Hess filed his response on September 18, 2014, asserting that he had a protected
property interest in continuing his education, which he claimed was created by a contract
between himself and SIU under Illinois common law. Dkt. No. 29 at 4-10. He also alleges
a liberty interest and asserts that it entitled him to due process before being expelled
before misconduct. Id. at 10-13. Hess further claimed that the law clearly protected his
rights; therefore, Defendants were not entitled to qualified immunity. Id. at 13-17.
On February 25, 2015, Hess filed a motion for summary judgment stating
that there is no triable issue of fact as to liability as to the following claims:
A) Plaintiff’s Claim that his [sic] was not granted a predetermination hearing
prior his [sic] suspension on December 11, 2013; B) That he was denied
due process because, Defendant Trisler, who conduct his expulsion
hearing, had prejudged his case, was biased against him, and Trisler
thereby deprived Hess of a hearing before a neutral fact-finder; C) That
Hess was denied substantive due process in that the evidence used to
justify his expulsion was so attenuated and wanting in probative value and
credibility that it shocks the conscience that Hess was expelled by [the
University].
Dkt. No. 30 at 2-3. On February 27, 2015, Defendants filed their own Motion for Summary
Judgment. Dkt. No. 32. Therein, Defendants claimed that the undisputed evidence
entitled them to judgment as a matter of law on all counts in Hess’ Second Amended
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Complaint. Id. at 1-3. Defendants contended that Hess does not have a property or
liberty interest that entitled him to procedural due process because “[s]uch entitlement to
post-secondary education does not exist independently of a contractual entitlement, and
[Hess] has neither alleged nor established such an entitlement based on the undisputed
record.” Id. at 2.
On March 30, 2015, Defendants responded to Hess’ Motion for Summary
Judgment. Dkt. No. 33. Defendants reiterated their argument that, on the undisputed
evidence, Hess could not show that he had a property interest in his continuing college
education.
Id. at 4-7.
Defendants also asserted that Hess failed to evidence any
deprivation of a liberty interest. Id. at 15-16.
On April 2, 2015, Hess filed his response to Defendant’s Motion for Summary
Judgment. Dkt. No. 34. Hess argued that he had adequately evidenced and/or alleged
that SIU had breached a contract with him such that he had a protectable property and/or
liberty interest, which was created under Illinois State law. Id. at 4-5.
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B. FACTUAL BACKGROUND 1
In the early morning hours of November 28, 2013, the Marion, Illinois, police
responded to a fight in progress at the Just One More Bar & Grill. Pl.’s Ex. 1. The officer
who arrived first witnessed Hess chase a man across a parking lot and then punch the
window of the man’s vehicle. Id. Hess was subdued and detained for questioning, along
with Hess’ girlfriend, brother and sister. Id. Hess’ companions claimed that the man Hess
had been chasing had “wrestled” with Hess’ brother and punched Hess’ sister in the face.
Id. Hess’ sister had no visible injuries. Id. After a brief period, Hess and his companions
were released from the scene by the police. Id.
After Hess left, the police learned that the chased man, Aaron Franks (“Franks”),
had driven himself to the local hospital where he presented to the emergency room with
multiple stab wounds. Id. Upon questioning, Franks gave a physical description for and
described the clothing of the person who stabbed him. Id. The description matched that
of Hess. Id. Hess admits that the description was “close” to his own. Hess Dep. at 6970. Other men inside the bar who admitted to being involved in an altercation with Franks
1
In his briefs, Hess makes reference to several “facts” without citation to evidence. See,
e.g., Dkt. No. 31 at 3 (stating that “SIU apparently has a blanket exclusion rule for students
charged with serious crimes, but it admits, that it will, from time to time, admits students
who have felony convictions for serious bodily harm” and “Chancellor Cheng testified that
these are reviewed on a case by case basis”) & 6 (stating “Dean Sermersheim testified
that Trisler had concluded that Hess was responsible prior to December 11, 2013”). The
Court declines to consider those “facts” pursuant to Southern District of Illinois Local Rule
7.1(d). Hess also fails to make specific citations to the record in the fact section of his
Memorandum in Support of Plaintiff’s Motion for Summary Judgment, Dkt. No. 31 at 711; the Court made every reasonable effort to decipher from the referenced exhibit the
“facts” Hess sought to rely upon. Only those facts for which the Court could readily find
support in the referenced exhibit were considered. It is not the Court’s job to “hunt[] for
truffles buried in [the record].” Gross v. Town of Cicero, 619 F.3d 697, 702 (7th Cir. 2010).
See also Gutierrez v. Kermon, 722 F.3d 1003, 1012 n.3 (7th Cir. 2013).
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had blood on them; this information was in the police report regarding the incident at the
Just One More Bar & Grill. Pl.’s Ex. 1.
On December 4, 2013, Hess was charged with aggravated battery in Williamson
County, Illinois, and a warrant issued for his arrest. Defs.’ Exs. 1 & 2. Hess surrendered
on December 9, 2013, and was released on bail later that day. Hess Dep. at 18-19.
Hess testified that before the events on November 28, 2013, at the Just One More
Bar & Grill, he knew Franks, but had no prior issues or problems with him. Id. at 65.
On December 10, 2013, Trisler, Director of Student Rights and Responsibilities at
SIU, learned that Hess had been arrested for allegedly stabbing a non-student during a
bar fight. Pl.’s Ex. 29 at 3; Defs.’ Ex. 16, Trisler Decl. ¶ 4. The next day, Trisler obtained
and reviewed the police reports that described the officer’s observations of Hess
assaulting Franks and Franks’ injuries and description of his assailant. Defs.’ Ex. 16,
Trisler Decl. ¶ 5; Pl.’s Ex. 29 at 3.
The SIU Student Conduct Code (“Conduct Code”) provides:
If the Dean of Students, or designee, has reasonable cause to believe a
student poses a serious and direct threat to the safety or well-being of one
or more members of the campus community, or to the continued effective
operation of the university, an interim action may be imposed to mitigate or
remove the threat. Any interim action is temporary and shall only be
enforced until the completion of adjudication.
Pl.’s Ex. 27, at 14, § 3.1.
Based on the information provided to him by the Marion police department, Trisler
contacted Sermersheim, SIU Interim Dean of Students, and recommended that an interim
suspension be issued for Hess, pending a hearing on the matter. Pl.’s Ex. 29, at 3.
Sermersheim agreed with Trisler’s recommendation and issued the Interim Suspension
the same day. Id.
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On December 11, 2013, the SIU police department contacted Hess by telephone
and told him that he need to come to the department to receive a letter. Hess Dep. at 1920. At the police station, Hess and his mother met with an SIU police officer and Trisler.
Id. at 24. Trisler introduced himself to Hess and his mother and explained that the letter
to Hess was a Notice of Interim Suspension. Id. at 24. The Notice advised Hess that SIU
had received information that he was “alleged to have stabbed an individual several times
in the course of a bar fight,” and prohibited Hess from being present on SIU property or
at SIU events until the interim suspension was lifted by the Dean of Students or through
the Student Conduct Process. Id. at 24; Defs.’ Ex. 5. The Notice was issued despite the
fact that no one at SIU had asked Hess for his side of the story. Hess Dep. at 24-25.
Trisler did not raise his voice or use profanity during the meeting with Hess and
his mother, and he did not comment on whether he believed that Hess was guilty aside
from delivering the notice of interim suspension. Hess Dep. at 37-38. Hess did not know
Trisler prior to the events at issue and never had any prior disciplinary problems at SIU.
Hess Dep. at 35. Hess does not know Trisler outside SIU and is unaware of any
relationship Trisler had with the stabbing victim, Franks. Hess Dep. at 35-36. According
to Hess, he asked Trisler why SIU was suspending him without hearing his side of the
story, to which Trisler replied, “The University has not made a decision.” Hess Dep. at
24 -25. Hess testified that throughout the encounter, Trisler was smiling, which prompted
Hess to call Trisler a “smug prick.” Hess Dep. at 24-25. Hess’ mother questioned Trisler
about whether SIU would treat “star athletes” the same way and asked Trisler why he
was smiling. Hess Dep. at 25. When Trisler responded that everyone is treated the
same, Hess’ mother replied, “[B]ullshit.” Susan Hess Dep. at 14. Further, Hess’ mother
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called Trisler a liar. Id. Hess’ mother also asked whether or not Hess could take his
finals, to which Trisler responded in the negative. Id. at 18.
Trisler explained that in the course of his career at SIU he has delivered 150-200
Notices of Interim Suspension to students and described this one as “not particularly
memorable.” Trisler Dep. at 144-45. By that, Trisler meant that, when receiving such
notices, students are frequently upset, if the student’s family is present they are also
upset, the students receiving such notices are often being investigated for criminal actions
and to sum it up: “They’re not having a good night.” Id. Trissler explained, “It’s not
unusual for people to be angry. It’s not unusual for there to be foul language. It’s not
unusual for me to be threatened. It’s just the course of doing business when we’re
delivering interim letters usually in the middle of the night.” Id. at 145.
Trisler testified that after having delivering the interim notice he had not formed
any conclusions as to Hess’ responsibility or guilt and did not carry any biases against
either Hess or his mother. Trisler Dep. at 145.
On the same evening, December 11, 2013, Trisler informed Sermersheim about
the Interim Suspension; Sermersheim, in turn, informed Cheng. Pl.’s Ex. 2. The email
from Sermersheim to Cheng stated, in relevant part: “I issued an interim suspension on
Nicholas Hess tonight. He is alleged to have been in a “bar fight” in Marion resulting in
him being charged with attempted murder. He allegedly stabbed a person 5 times. He
is from Marion and is a senior in journalism.” Id. Sermersheim testified that she received
that information from Trisler and that she believed they needed an interim suspension
until they learned more. Sermersheim Dep. at 25-26. At the time, she was thinking that
Hess might be a threat to the campus community as a whole, not to one particular
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individual. Id. at 33-34. In response to Sermersheim’s email, Cheng responded, “Wow.
Thanks to both you and Chad for the good work.” Pl.’s Ex. 2.
The Notice of Interim Suspension informs the student that, under the Student
Conduct Code, he has a right to appeal an interim suspension action by requesting a
hearing with the Dean of Students to be held within two days of the interim suspension.
Hess Dep. at 41; Defs.’ Ex 5. Hess retained legal counsel the next day but did not request
a meeting with the Dean to appeal the interim suspension. Hess Dep. at 41.
On December 13, 2013, Hess received a Charge and Notification Letter advising
him that he had been charged with violating eight provisions of the Conduct Code in
connection with the events that took place on November 28, 2013, that led to his arrest.
Hess Dep. at 44; Defs.’ Ex. 7. The letter identified each of the eight charges, and the
basis for the charges. Defs.’ Ex. 7. The charges included attempted homicide, physical
assault, violent behavior, group actions, reckless disregard, reckless conduct presenting
a danger to property, possession of a weapon, and disorderly conduct. Id. The letter
informed Hess that he could either accept responsibility or deny responsibility and
proceed with an administrative hearing.
Id.
Hess completed the “Statement of
Responsibility Options” enclosed with the letter and requested an administrative hearing.
Defs.’ Ex. 8.
The hearing was set for January 17, 2014, and Hess was informed via letter that
the hearing officer would be Trisler and that Hess had the right to call witnesses at the
hearing. Defs.’ Ex. 9. Hess never contacted SIU to object to Trisler being the hearing
officer. Hess Dep.at 49.
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The hearing was held on January 17, 2014, as scheduled. Defs.’ Ex. 9. Hess was
represented by an attorney at the proceeding. Hess Dep.at 42. He was permitted to ask
any question he wanted of each person that testified and his attorney was present
throughout the hearing and wrote out questions for him to ask each witness. Hess Dep.
at 51-53. Three witnesses testified: Officer Adam Bryne, Jenny Ozga (Hess’ girlfriend),
and Hess. Defs.’ Exs. 14 & 15; Pl.’s Ex. 27A. Officer Bryne testified, among other things,
that “there were separate incidents of battery that happened inside the bar that, uh, Mr.
Hess was not involved with, I don’t believe.” Pl.’s Ex. 27A at 2; Defs.’ Ex. 15 at 2. Officer
Byrne also testified that at no point during the investigation of the incidents at the Just
One More Bar & Grill on the evening of November 28, 2013, was there any evidence to
suggest that Hess had a knife. Pl.’s Ex. 27A at 3; Defs.’ Ex. 15 at 2. In fact, Officer Byrne
testified that there was no evidence that Hess possessed any weapon. Pl.’s Ex. 27A at
3-4; Defs.’ Ex. 15 at 3.
Hess was permitted to bring witnesses to the hearing. Hess Dep. at 49. Hess’
brother and sister were both at the bar on the night of the stabbing, but Hess did not call
them as witnesses. Hess Dep. at 50. See, generally Pl.’s Ex. 27A; Defs.’ Ex. 15.
Because of the criminal charges pending against him, on the advice of counsel, Hess
chose not to discuss what occurred at the bar; but he was not prevented from doing so
by SIU. Hess Dep. at 54; Trisler Dep. at 144; Defs.’ Ex. 15 at 7. The hearing was
recorded and a transcript made. Defs.’ Exs. 14 & 15; Pl.’s Ex. 27A.
Trisler never talked with Franks. Trisler Dep. at 142.
Four days after the hearing, Trisler issued a notice of hearing decision that
informed Hess that he had been found responsible for violating seven of the eight charged
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disciplinary provisions of the Conduct Code and that Trisler had determined that
disciplinary expulsion was the appropriate sanction under the circumstances. Hess Dep.
at 56-58; Defs.’ Ex 10. Trisler further explained that his decision was based on the police
officer’s observation of Hess’ attempt to assault Franks; Franks’ identification of Hess;
and the unlikelihood that the same victim suffered a separate attack prior to the one by
Hess that was witnessed by police officers. Defs.’ Ex. 10. In particular, Trisler noted that
“Franks was able to provide a conclusive description of the person who stabbed him,
including approximate height, weight, hair color and length, build and clothing, all of which
matched that of Hess at the police station following the incident.” Pl.’s Ex. 16. Trisler
testified that Franks’ description that matched Hess “was the most telling evidence that
he was involved.” Trisler Dep. at 141.
The Conduct Code permits students to appeal determinations of responsibility.
Pl.’s Ex. 27 at 23, § 4.4.5.5.6. Hess, again with the assistance of counsel, took advantage
of that opportunity. Defs.’ Ex. 8. Hess submitted an extensive written appeal claiming
(1) procedural error in not delaying the proceedings until his criminal case was resolved
and requiring Hess to represent himself with the assistance of his attorney as an advisor;
(2) that there was no evidence to support the more serious charges (acknowledging that
there was some evidence to support four of the charges); and (3) that the sanction of
expulsion was excessive. Defs.’ Ex. 12. In his appeal, Hess again did not claim that
Trisler was biased or that he had sought an alternative hearing officer and had been
denied that request. See id.
Pursuant to the Conduct Code, Hess’ appeal was considered by a three member
panel referred to as the Chancellor’s Advisory Review Board who recommended to the
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Chancellor that the decision be upheld. Pl’s. Ex. 27 at 26-29. Cheng then considered
Hess’ appeal, the committee recommendation, and the file and agreed that there was no
basis to change the finding of responsibility and sanction. Pl’s. Ex. 22; Cheng dep. at 1819.
During the period between November 28, 2013, and December 11, 2013 (the date
of Hess’ interim suspension), Hess was on the SIU campus a minimum of 20 times without
incident. Pl.’s Ex. 38, Hess Aff. ¶¶ 2-3. No one at SIU ever inquired about the number of
times Hess had been on campus during that time period. Id. ¶ 4.
II. STANDARDS
A. MOTION TO DISMISS PURSUANT TO RULES 12(b)(1) & 12(b)(6)
Defendants have moved to dismiss Counts I and II of Hess’ Second Amended
Complaint as against the Board of Trustees and the remaining Defendants in their official
capacities pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure (“Rule
12(b)(1)”), for lack of subject matter jurisdiction. Dkt. No. 28. When such an assertion is
made, although the burden of proof is on the party asserting jurisdiction, the Court must
accept all well-pleaded facts alleged in the Second Amended Complaint and draw all
reasonable inferences from those facts in Hess’ favor. See Sapperstein v. Hager, 188
F.3d 852, 855 (7th Cir. 1999).
Under the Supreme Court’s directive in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), to survive Defendants’ motion for failure to state a claim upon which relief
may be granted pursuant to Rule 12(b)(6), Hess must provide the grounds for his
entitlement to relief with more than labels, conclusions or a formulaic recitation of the
elements of a cause of action. Id. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286
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(1986)). Again, the Court assumes that all the allegations in the Second Amended
Complaint are true, but the “allegations must be enough to raise a right to relief above the
speculative level.” Id. The touchstone is whether or not the Second Amended Complaint
gives Defendants “fair notice of what the … claim is and the grounds upon which it rests.”
Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Court may also consider
documents attached to the Second Amended Complaint and documents referenced
therein, as well as take judicial notice of publicly available documents to decide the
motion. See Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
B. SUMMARY JUDGMENT STANDARD
As stated by the Supreme Court, summary judgment is not a disfavored procedural
shortcut, but rather is an integral part of the federal rules as a whole, which are designed
to secure the just, speedy, and inexpensive determination of every action. See Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also United Ass’n of Black Landscapers
v. City of Milwaukee, 916 F.2d 1261, 1267–68 (7th Cir. 1990). Motions for summary
judgment are governed by Federal Rule of Civil Procedure 56(a), which provides in
relevant part:
The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.
Once a party has made a properly-supported motion for summary judgment, the
opposing party may not simply rest upon the pleadings but must instead submit
evidentiary materials showing that a fact either is or cannot be genuinely disputed. Fed.
R. Civ. P. 56(c)(1). A genuine issue of material fact exists whenever “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The nonmoving party bears
the burden of demonstrating that such a genuine issue of material fact exists. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986);
Goodman v. Nat’l Sec. Agency, Inc.. 621 F.3d 651, 654 (7th Cir. 2010). It is not the duty
of the Court to scour the record in search of evidence to defeat a motion for summary
judgment; rather, the nonmoving party bears the responsibility of identifying applicable
evidence. See Goodman, 621 F.3d at 654; Bombard v. Fort Wayne Newspapers, Inc.,
92 F.3d 560, 562 (7th Cir. 1996).
In evaluating a motion for summary judgment, the Court should draw all
reasonable inferences from undisputed facts in favor of the nonmoving party and should
view the disputed evidence in the light most favorable to the nonmoving party. See Estate
of Cole v. Fromm, 94 F.3d 254, 257 (7th Cir. 1996). The mere existence of a factual
dispute, by itself, is not sufficient to bar summary judgment. Only factual disputes that
might affect the outcome of the suit in light of the substantive law will preclude summary
judgment. See Anderson, 477 U.S. at 248; JPM Inc. v. John Deere Indus. Equip. Co., 94
F.3d 270, 273 (7th Cir. 1996). Irrelevant or unnecessary facts do not deter summary
judgment, even when in dispute. See Clifton v. Schafer, 969 F.2d 278, 281 (7th Cir.
1992). If the moving party does not have the ultimate burden of proof on a claim, it is
sufficient for the moving party to direct the court to the lack of evidence as to an element
of that claim. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n.3 (7th Cir. 1994).
“If the nonmoving party fails to establish the existence of an element essential to [her]
case, one on which [she] would bear the burden of proof at trial, summary judgment must
14
be granted to the moving party.” Ortiz v. John O. Butler Co., 94 F.3d 1121, 1124 (7th Cir.
1996).
III. DISCUSSION
A. MOTION TO DISMISS BOARD OF TRUSTEES & OFFICIAL CAPACITY CLAIMS
Defendants assert that the Court does not have jurisdiction over Hess’ claim for
damages against the Board of Trustees and his official capacity claims for damages. Dkt.
No. 28 at 4-5. Hess never really addresses this aspect of Defendants’ Motion to Dismiss.
Dkt. No. 29. The Court agrees with Defendants that the law is well-settled that the Board
of Trustees and the individuals in their official capacities are claims against SIU, which is
not a “person” under 42 U.S.C. § 1983, for purposes of money damages. See Will v.
Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989); Kaimowitz v. Bd. of Trustees of Univ.
of Ill., 951 F.2d 765, 767 (7th Cir. 1991); Shannon v. Bepko, 684 F. Supp. 1465, 1474
(S.D. Ind. 1988).
However, claims against Defendants in their official capacity for
injunctive relief are not actions against the State. See Will, 491 U.S. at 71 n.10 (quoting
Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)). For these reasons, Defendants’
Motion to Dismiss Hess’ claims for damages as to the Board of Trustees and the
Defendants in their official capacities is GRANTED in part and DENIED in part.
Defendants have also moved to dismiss Hess’ claims on the merits; however,
because the Court has considered evidence outside of the Second Amended Complaint
as to Defendants’ merit argument in conjunction with their Motion for Summary Judgment,
the Court converts the Motion to Dismiss on the merits to one for summary judgment.
Both parties have moved for summary judgment and have responded to the others’
argument; therefore, the notice usually required to convert a motion to dismiss to one for
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summary may be suspended. Cf. Fleischfresser v. Dirs. of Sch. Dist. 200, 15 F.3d 680,
684-85 (7th Cir. 1994) (discussing situations in which every party has reason to know
when a court will convert a motion to dismiss to one for summary judgment).
B. DUE PROCESS CLAIMS
Hess asserts that he is entitled to summary judgment on his claims that
Defendants violated his right to due process because they deprived him both of a property
interest and a liberty interest in his education. Dkt. No. 31 at 1-3. Hess relies on Pugel
v. Board of Trustees of the University of Illinois, 378 F.3d 659 (7th Cir. 2004), for the
proposition that whether a student has a property interest or a liberty interest in his
continued higher education is an open question. Dkt. No. 31 at 1-2. Hess then implies
that several non-binding cases have concluded that a student has a cognizable interest
in continued education such that due process is required before expulsion. Id. at 2 (citing
Than v. Univ. of Tx. Med. Sch., 188 F.3d 633, 635 n.2 (5th Cir. 1999); Crook v. Baker, 813
F.2d 88, 97 (6th Cir. 1987); Nash v. Auburn Univ., 812 F.2d 655, 660-61 (11th Cir. 1987);
Hall v. Med. Coll. of Ohio, 742 F.2d 299, 308-09 (6th Cir. 1984); Duldulao v. St. Mary of
Nazareth Hosp. Ctr., 505 N.E.2d 314, 318 (1987); Johnson v. Lincoln Christian Coll., 501
N.E.2d 1380 (Ill. App. 1986); Steinberg v. Chi. Med. Sch., 371 N.E.2d 634 (Ill. 1977)).
Hess further asserts that Supreme Court opinions have held that students may have a
personal liberty interest that entitles them to notice and an opportunity to be heard before
expulsion. Id. at 2-3 (citing Bd. of Curators of the Univ. of Mo. v. Horwitz, 435 U.S. 78,
82-85 (1978); Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 573 (1972)). Based
on these precedents, Hess presumes that he too had such interests that entitled him to a
hearing prior to his suspension. Id. at 3. Hess also contends that Trisler was biased;
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therefore, the process that he was given was unconstitutional. Id. at 4-6. Finally, Hess
states that there is no material question of fact that SIU treated him arbitrarily in violation
of the substantive due process clause. Id. at 6-11.
To the contrary, Defendants argue that they are entitled to summary judgment on
Hess’ due process claims. First, Defendants assert that there is no evidence that Hess
had a property interest in his education and Hess has failed to show a genuine issue of
material fact that Defendants deprived him of a liberty interest in his continued education.
Dkt. No. 33 at 4-7, 15-16. Second, Defendants claim that, even if Hess had a protectable
interest, he was given all the process he was due, including a neutral decision maker. Id.
at 7-12. Third, Defendants aver that Hess has failed to evidence that the conclusion
reached by Defendants “shocks the conscience,” which is a necessary element of his
substantive due process claim. Id. at 12-14.
A procedural due process claim under the Fourteenth Amendment requires a twostep analysis. “First, the court must identify the protected property or liberty interest at
stake.
Second, it must determine what process is due under the circumstances.”
Charleston v. Bd. of Trs. of Ill. Univ., 741 F.3d 769, 772 (7th Cir. 2013) (citing Omosegbon
v. Wells, 335 F.3d 668, 674 (7th Cir. 2003)). Stated another way, Hess “must establish
that there is (1) a cognizable property interest; (2) a deprivation of that interest; and (3) a
denial of due process.” Price v. Bd of Educ. of City of Chi., 755 F.3d 605, 607 (7th Cir.
2014) (quoting Khan v. Bland, 630 F.3d 519, 527 (7th Cir. 2010) (further quotation omitted
by Seventh Circuit)). The Fourteenth Amendment does not create a property right; rather,
it “stem[s] from an independent source such as state law---rules or understandings that
secure certain benefits and that support claims of entitlement to those benefits.” Id.
17
The Court concludes that Hess has not provided evidence that he had a legally
protected entitlement to his continued education at SIU. See Charleston, 741 F.3d at 773
(citing Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 601-02 (7th Cir. 2009); Williams
v. Wendler, 530 F.3d 584, 589-90 (7th Cir. 2008)). Hess attempts to rely on an implied
contract theory to support his claim. Dkt. No. 31 at 2-3. But, it is not enough for a student
to merely state that an implied contract exists; rather, the student “must be specific about
the source of this implied contract, the exact promises the university made to the student,
and the promises the student made in return.” Charleston, 741 F.3d at 773. In this case,
when asked at his deposition to describe the terms of the contract between himself and
SIU, Hess stated, “I was supposed to be a student and succeed and they were supposed
to be there and they didn’t.” Hess Dep. at 71-72. In his briefing, Hess vaguely references
the Code of Conduct and the implied contracts found in Johnson, 501 N.E.2d at 1384,
and Steinberg, 371 N.E.2d at 640, apparently in an attempt to show that the Court should
find a similar contract in this case. 2 But in both Johnson and Steinberg the students
articulated the specifics of the contract at issue and how it had been breached by the
university. See Johnson, 501 N.E.2d at 1384; Steinberg, 371 N.E.2d at 640. In contrast,
Hess has provided no particularized evidence from which the Court could imply that a
contract existed between Hess and SIU regarding his continued education.
2
Hess states that if the Seventh Circuit were aware of these cases, it would conclude that
in Illinois all students have a property interest in their education. Dkt. No. 31 at 2. But
that is not what Johnson and Steinberg hold; rather, those case distinctly find specific
offers, acceptance and consideration in the facts presented that outline the parameters
of the relevant implied contracts. Johnson, 501 N.E.2d at 1384; Steinberg, 371 N.E.2d
at 640. Furthermore, Charleston was decided after both Johnson and Steinberg;
therefore, if the Seventh Circuit wanted to announce a de facto rule on the issue of a
property interest in secondary education in Illinois based on those cases it could have
done so in that case.
18
Hess claims that he also had a personal liberty interest that could only be protected
by a pre-interim suspension hearing. Dkt. No. 31 at 2-3 (citing Bd. of Curators of Univ. of
Mo. v. Horwitz, 435 U.S. 78, 82-85 (1978); Roth, 408 U.S. at 573). More specifically,
Hess contends that this interest included “his standing with his fellow students, his
instructors, and the right to pursue further education at other institutions of higher
learning.” Second Am. Compl. ¶ 39. He alleges, too, that his Official Transcript of
Academic Record (“Transcript”) now states that he was expelled for disciplinary reasons
and that having this notation with seriously impair his ability to get admitted to other
universities. Id. ¶¶ 41-43. Defendants assert that Hess’ bare assertions are not evidence
that he was deprived of a liberty interest by any of them. Dkt. No. 33 at 15-16. See also
Dkt. No. 32 at 17-18.
On summary judgment, Hess has failed to support the allegations in his complaint
regarding any liberty interest of which he was deprived; therefore, his claim must fail.
Generally, to evidence a loss of a liberty interest such that he is entitled to procedural due
process, Hess must show that Defendants publically made defamatory statements about
him that led to a tangible loss of opportunity for employment or education. Strasburger v.
Bd. of Educ., 143 F.3d 351, 356 (7th Cir. 1998); Doe v. Bd. of Trs. of the Univ. of Ill., 429
F. Supp. 2d 930, 942-43 (N.D. Ill. 2006). Hess admits that no one stopped him from
associating with other students at SIU, Hess Dep. at 12; that no Defendant publically
disclosed his transcript, id.; and that he never applied to another school and was rejected,
Hess Dep. at 7. Moreover, he presents no evidence that he was denied an employment
opportunity because of any statement made in public by a Defendant. Therefore, it is
19
clear that Hess has failed to meet his burden of proof on summary judgment as to a liberty
interest protected by the Due Process Clause.
Even if Hess had evidenced either a property interest through an implied contract
or a protectable liberty interest, SIU provided all the process that he was due. Hess
alleges three procedural deficiencies: the absence of a pre-interim suspension hearing;
the bias of Trisler; and the lack of substantial evidence to support his expulsion. Dkt. No.
30 at 2-3. “[A]t a minimum [the Due Process Clause] require[s] that deprivation of . . .
liberty or property by adjudication be preceded by notice and opportunity for hearing
appropriate to the nature of the case.” Logan v. Zimmerman Brush Co., 455 U.S. 422,
428 (1982) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950)).
Further, as the Logan court later stated, “’some form of hearing’ is required before the
owner is finally deprived of a protected property interest.” Logan, 455 U.S. at 433 (quoting
Roth, 408 U.S. at 570-71, n.8 (emphasis in original)).
In Hess’ case, the information SIU had obtained on December 11, 2013, was that
Hess had been arrested for allegedly stabbing a non-student during a bar fight. Defs.’
Ex. 16, Trisler Decl. ¶ 5; Pl.’s Ex. 29 at 3; Pl.’s Ex. 2; Sermersheim Dep at 25-26 & 3334.
The evidence is that, based on this information, Trisler and Sermersheim had
“reasonable cause to believe a [Hess] pose[d] a serious and direct threat to the safety of
well-being of one or more members of the campus community . . . .” Pl.’s Ex. 29, at 3.
This is just the type of circumstance for which an interim action could be warranted and
is similar, if not more troubling, than the circumstances in Medlock v. Trustees of the
University of Indiana, 738 F.3d 867 (7th Cir. 2013). In Medlock, the Seventh Circuit
affirmed the district court’s conclusion that a student’s expulsion prior to a hearing was
20
not a violation of due process when the campus police located a large marijuana plant
and a grow light in his dorm room along with a sizable quantity of marijuana and other
drug paraphernalia in violation of the campus housing policy as well as state law. Id. at
871. The Medlock court stated: “The in-your-face flagrancy of [Plaintiff’s] violation of
university rules . . . and of Indiana’s criminal law, required the university to take immediate
remedial action if its commitment to its rules, and to legality, was not to be questioned.”
Id. (citing Goss v. Lopez, 491 U.S. 565, 581-83 (1975)). Even the Supreme Court
recognized in Goss that there will be circumstances where prior notice and a hearing is
impractical. Goss, 491 U.S. at 582-83 (discussing immediate removal of a student in
cases where that student’s “presence poses a continuing danger to persons or property
or an ongoing threat of disrupting the academic process” and noting the need to follow
such removals with notice and a hearing “as soon as practicable”). See also Gilbert v.
Homar, 520 U.S. 924, 934 (1997) (concluding that a public employee could be suspended
without pay prior to a hearing based upon an arrest and formal charges, so long as the
employee received a prompt and adequate post-suspension hearing). Hess received
notice of the reasons for his immediate interim suspension, and was provided information
about how to challenge the interim action and was advised that any challenge would be
addressed within two days. Hess Dep. at 24, 41; Defs.’ Ex. 5.
Under the circumstances
presented to SIU at the time, this procedure adequately protected Hess’ right since the
interim suspension applied only until completion of adjudication. Pl.’s Ex. 27, at 14, § 3.1.
The process for formal adjudication occurred quickly here since a formal notice was
issued within two days of the interim suspension and a hearing was set on that notice for
January 17, 2014. Hess Dep at 42, 44; Defs.’ Exs. 7 & 9. At the hearing, Hess was
21
entitled to, and did, ask questions of any witness, call witnesses and testify himself if he
wished. Hess Dep. at 42, 44, 49, 51-53; Defs.’ Exs. 7, 9, 14, 15; Pl.’s Ex. 27A.
However, notwithstanding the fact that Hess had the opportunity to appeal the
interim suspension and did not do so, and the fact that Hess had the opportunity to object
to Trisler presiding over the formal adjudication, Hess questions Trisler’s impartiality.
Specifically, he claims that, as a matter of law, Trisler was biased prior to the interim
suspension because Sermersheim testified that Trisler had concluded that Hess was
guilty of the underlying crime prior to December 11, 2013. Dkt. No. 31 at 6. Hess also
alleges that Trisler was biased because of the derogatory comments Hess and his mother
made to him when they learned of the interim suspension. Second Am. Compl. ¶ 20.
Hess compares his case to the circumstances in Furey v. Temple University, 730 F. Supp.
2d 380 (E.D. Pa. 2010). In Furey, the evidence of potential bias included: (1) that a
decision maker was friends with the testifying officer; (2) that another decision maker
implied in comments to the plaintiff’s father that he would believe a police officer solely
on the basis of his profession; (3) another decision maker based his conclusion that the
plaintiff was intoxicated during the incident in question on his own misreading of test
results; (4) the entire panel of decision makers allowed the police officer to give a soliloquy
regarding his investigation and a long narrative of the incident; (5) the panel refused to
ask the police officer questions posed by the plaintiff; (6) in contrast to its treatment of the
police officer, the panel aggressively cross examined the plaintiff and told the plaintiff and
his mother to be quiet; and (7) the panel told his mother to “shut up” during the hearing.
Dkt. No. 31 at 5-6 (citing Furey, 730 F. Supp. 2d at 387-89). Defendants assert that there
are no similar facts in this case from which a jury could infer bias. Dkt. No. 33 at 10-12.
22
There is no question that a biased decision-maker renders a disciplinary process
unconstitutional. See Withrow v. Larkin, 421 U.S. 35, 46-47 (1975); Batagiannis v. W.
Lafayette Cmty. Sch. Corp., 454 F.3d 738, 742 (7th Cir. 2006). However, Hess must
overcome “a presumption of honesty and integrity in those serving as adjudicators . . . .”
Amundsen v. Chi. Park Dist., 218 F.3d 712, 715 (7th Cir. 2000) (quoting Withrow, 421
U.S. at 47). “This presumption can be rebutted by a showing of conflict of interest or
some other specific reason for disqualification.” Id. (quoting Schweiker v. McClure, 456
U.S. 188, 195-96 (1982); citing Gibson v. Berryhill, 411 U.S. 564, 579 (1973)). For
example, Hess must show that that Trisler had “a pecuniary interest in the outcome” or
that “he [had] been the target of personal abuse or criticism from the party before him.”
Withrow, 421 U.S. at 47.
Here, Hess has nothing but bare allegations to support his claim that Trisler was
biased. Only a tortured reading of Sermersheim’s testimony could lead to the conclusion
that Trisler had already determined that Hess was guilty of the underlying crime prior to
December 11, 2013. The pertinent testimony reads:
Q. What was your understanding of what the charges were that had
been lodged against Hess on December 11, 2013?
A. The information I had at the time was a bar fight, resulting in Mr.
Hess stabbing another individual multiple times.
Q. Did you conclude that Hess had stabbed another individual
multiple times?
A. At that time, based on the information we had, yes.
Q. Really?
A. Yes.
23
Q. You had concluded that Hess had stabbed another individual
multiple times, correct?
A. Yes.
Q. Who told you that, that Hess had stabbed another individual
multiple times?
A. That was the information that we had at that time share with me
by Chad Trisler.
Q. Well, “we.” Who is “we”?
A. Chad, uh, the information that was shared with him, which in turn,
following our policy, when we believe there’s information to suggest a threat
to the university community, uh --Q. But my question is, did Chad Trisler tell you that he believed that
Hess had stabbed another individual multiple times?
A. Yes. Based on not him believing [sic], but based on information
that we had received through our community partners, uh, the information
was shared that that is what was believed to have occurred at that time.
Sermersheim Dep. at 35-36. She further testified:
Q. From what you had been told by Trisler, you were satisfied that
that’s, in fact, what Hess had done, stabbed somebody?
A. Based on the information I had on December 11 when this was
issued, yes.
Q. And that came solely from Trisler?
A. Uh, Trisler brought that information.
Sermersheim Dep. at 44-45.
As Sermersheim stated, perhaps poorly, the interim suspension was not based on
Trisler “believing [that Hess had stabbed someone], but based on information that [they]
had received through [their] community partners . . . that is what was believed to have
occurred at that time.” Sermersheim Dep. at 36. This is not the stuff of Furey, nor could
24
a jury be convinced by it that Trisler had prejudged the evidence such that it rendered the
hearing unconstitutional.
With respect to Hess’ allegation that Trisler must have been biased because Hess
had called Trisler a “smug prick” and his mother had told Trisler one of his answers was
“bullshit,” Hess Dep. at 25, Susan Hess Dep. at 14, there is no evidence that Trisler had
any negative feelings toward either Hess or his mother because of the comments. To the
contrary, the only evidence is that Trisler did not recall the comments and even if he did,
it would not have led him to make any conclusions about either Hess or his mother. Trisler
Dep. at 96-98. Trisler testified that it is “not an unusual interaction to have with a student
at the police department when issuing an interim suspension.”
Id. at 97.
Hess’
supposition about what Trisler must have thought is not evidence of bias and the attempt
to compare this evidence to that in Furey, even in combination with Sermersheim’s
deposition testimony, is not close to the support needed for a finding of a bias “too high
to be constitutionally tolerable.” Withrow, 421 U.S. at 47.
With respect to a substantive due process claim, Hess argues that Defendants’
decision to expel him after the hearing was so arbitrary that is shocks the conscience. 3
Dkt. No. 31 at 7. Hess appears to argue that the absence of evidence that he posed a
threat to any particular member of the SIU community, and Trisler’s failure to mention or
discuss certain exculpatory facts in the police report, evidence the arbitrariness of the
3
Hess did not plead a substantive due process violation in the Second Amended
Complaint. See, generally, Second Am. Compl. However, because the parties
addressed the issue on summary judgment, the Court will address it here.
25
decision. 4 Id. at 7-11. Defendants assert that Hess’ disagreement with the decision does
not make it arbitrary. Dkt. No. 33 at 14.
The Court concludes that, on the undisputed facts, the circumstances in this case
do not “shock the conscience.” The scope of the substantive due process clause is
limited. See Dunn v. Fairfield Comm. High Sch. Dist No. 225, 158 F.3d 962, 965 (7th Cir.
1998) (citing Washington v. Glucksberg, 521 U.S. 702, 719 (1997)). The question is
whether or not Defendants exercised their power without any reasonable justification.
See id. In the case of the specific acts of Defendants, “’only the most egregious official
conduct’” is arbitrary in the constitutional sense.” Id. (quoting County of Sacramento v.
Lewis, 523 U.S. 833, 845-46, 118 S. Ct. 1708, 1716 (1998)). In other words, the abuse
of power must “shock the conscience.” Id. (discussing Rochin v. California, 342 U.S. 165
(1952), as reiterated in Lewis). “’[C]onduct intended to injure in some way unjustifiable
by any government interest’ would be most likely to rise to the conscience-shocking level.”
Id. (quoting Lewis, 523 U.S. at 849, 118 S. Ct. 1718 (emphasis added by Seventh
Circuit)).
In this case, Hess was temporarily suspended from school pending further
proceedings under the SIU conduct code. Hess Dep. at 24, 44; Defs.’ Ex. 5. He was
afforded a hearing before an impartial decision maker at which he was allowed to ask
questions, present witnesses and testify on his own behalf (even though he chose not to
4
It was difficult to understand the evidence Hess claims support his substantive due
process claim because he failed to make citations to evidence in his brief. The Court
made some effort to locate the relevant information, however, if the information was not
readily located, the Court did not rely upon it on the basis that it is the party’s burden to
make the information available to the Court to support his or her case. See Gross v.
Town of Cicero, 619 F.3d 697, 702 (7th Cir. 2010); see also Gutierrez v. Kermon, 722
F.3d 1003, 1012 n.3 (7th Cir. 2013).
26
do so). Hess. Dep. at 24, 44; Defs.’ Exs. 5, 7, 9. Further, he concedes that it would be
reasonable to conclude that he violated 4 provisions of the Code of Conduct. Defs.’ Ex.
12. There was ample evidence in the record to support the charges of violent behavior
(fighting with Franks, chasing Franks and pounding on the car window), reckless
disregard (chasing Franks, pounding on car the car window), reckless conduct presenting
a danger to property (chasing after Franks and pounding on the car window), and
disorderly conduct (participating in a fight outside of bar and chasing Franks across the
parking lot).
Even if Hess, or the Court, disagrees with Defendants about the violation of the
remaining three provisions, there was evidence in the record to support Trisler’s
conclusions that Hess had attempted to harm Franks, committed a physical assault and
took group action. Defs.’ Ex. 10, Pl.’s Ex. 1. Defendants aver that Hess’ expulsion was
supported by “some evidence,” which is all that is required under the appropriate
standard. Dkt. No. 32 at 17 (citing McDonald v. Bd. of Trs. of Univ. of Ill., 375 F. Supp.
95 (N.D. Ill.), aff’d and opinion adopted 503 F.2d 105 (7th Cir. 1974)). Hess disagrees
with Defendants’ conclusion that Hess was responsible for “attempted homicide,” or even
a lesser violation, because “the evidence as a whole demands an opposite conclusion.”
Dkt. No. 34 at 6-7 (citing Austin v. Pazera, 779 F.3d 437 (7th Cir. 2015)). Hess also cites
multiple prisoner cases where the reliability of the evidence supporting the conclusions
was suspect. Id. at 7 (citing Hensley v. Wilson, 850 F.2d 269, 275-76 (6th Cir. 1987);
Dawson v. Smith, 719 F.2d 896, 899 (7th Cir. 1983), cert. denied, 466 U.S. 929 (1984);
Howard v. Wilkerson, 768 F. Supp. 1002 (S.D.N.Y. 1991)). He claims that Trisler should
have talked with Franks rather than relying on Franks’ hearsay identification of his
27
assailant. Id. In addition, Hess claims that suspension and expulsion was too harsh a
sanction for violations like a bar fight. Id. at 6-7. But, the standard, as Hess concedes,
is whether there is “some evidence” to support SIU’s conclusion. See id. at 7 (citing
Amaya v. Brater, 993 N.E.2d 311 (Ind. Ct. App. 2013)). Here, the facts were that Hess
and his brother had confronted Franks outside the bar, Hess chased Franks to the car,
Hess pounded on the car window until a police officer tackled him, and Franks presented
to the hospital with multiple stab wounds and gave a description of his assailant that
closely matched that of Hess. Therefore, even if another decision maker would draw a
different conclusion from the evidence, for example, that another altercation occurred
inside the bar that may have involved Franks, there is some evidence to support Trisler’s
conclusion that Hess had committed a crime against Franks that could have produced
serious bodily injury.
In summary, Trisler’s decision to expel Hess for 7 violations of the Code of Conduct
is not “shocking” enough to meet the constitutional standard and the Court will not relitigate the evidentiary foundation for the decision. Accord Tun v. Whitticker, 398 F.3d
899, 903-04 (7th Circ. 2005) (discussing the questionable judgment of the state actors in
that case, but refusing to conclude that the decision violated the substantive due process
rights of the plaintiffs). Further, as the Dunn court stated, “One is tempted to say that if a
police officer’s ‘precipitate recklessness,’ which caused the deprivation of someone’s life,
was not sufficiently shocking to satisfy substantive due process standards, then it would
be nearly absurd to say that [Defendant’s decision to expel Hess for seven violations of
the Code of Conduct] did.” 158 F.3d at 965 (referencing the facts and conclusion in
Lewis).
28
C. QUALIFIED IMMUNITY
Defendants assert that they are qualifiedly immune from Hess’ claims against them
individually for damages. Dkt. No. 32 at 18-19. Specifically, Defendants argue that Hess
cannot show that a constitutional violation occurred. Id. (citing Coady v. Steil, 187 F.3d
727, 731 (7th Cir. 1999)). See also Dkt. No. 28 at 15. Defendants also aver that a
reasonable state actor would not have known that her actions were unlawful viewed in
light of the law at the time. Dkt. No. 28 at 15 (citing Nabozny v. Plodlesny, 92 F.3d 446,
456 (7th Cir. 1996)). Hess contends that the law was sufficiently clear that he was entitled
to an impartial decision maker and that a disciplinary decision needed to be supported by
“some evidence” to satisfy due process; therefore, Defendants are not entitled to qualified
immunity.
Hess’ barebones argument is flawed with respect to his procedural due process
claim because he has failed to evidence that he had either a property or a liberty interest
in a continued education at SIU and, even if he had, he was given all the process he was
due as a matter of law. Further, there is no material question of fact that Trisler was
unbiased. The fundamental question on Hess’ procedural due process claim is whether
or not Hess had a property or liberty interest that had been violated. The law in this area
is not well-settled and the inquiry to date has been a case-by-case analysis of the
individual’s interest at stake and the potential contractual relationship of the individual to
the state actor.
Therefore, with respect to Hess’ procedural due process claim,
Defendants are qualifiedly immune from suit.
With respect to his equally sparse argument on Hess’ substantive due process
claim, the Court agrees that the standard on that claim is clear; however, the application
29
of that standard to the facts of this case are equally clear: there was no substantive due
process violation by Defendants. As such, Defendants are qualifiedly immune from suit
as to Hess’ substantive due process claim.
IV. CONCLUSION
For the reasons stated herein, Defendants’, the Board of Trustees of Southern
Illinois University, Chad Trisler, Katherine L. Sermersheim and Rita Cheng, Motion to
Dismiss is GRANTED in part and DENIED in part; Defendants’, the Board of Trustees
of Southern Illinois University, Chad Trisler, Katherine L. Sermersheim and Rita Cheng,
Motion for Summary Judgment is GRANTED; Plaintiff Nicholas Hess’ Motion for
Summary Judgment is DENIED. The Court will enter judgment consistent with this Order.
IT IS SO ORDERED this 9th day of December, 2015.
Distribution:
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Darrell W. Dunham
Law Offices of Darrell Dunham
darrell.dunham@gmail.com
Thomas H. Wilson
HeplerBroom LLC - Springfield
thw@heplerbroom.com
Jessica L. Galanos
HeplerBroom LLC - Springfield
jlg@heplerbroom.com
30
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