Wilson, Jr. v. Wichita State University et al

Filing 38

MEMORANDUM AND ORDER granting 34 Motion to Dismiss for Failure to State a Claim; granting 34 Motion to Dismiss for Lack of Jurisdiction. Signed by Chief Judge J. Thomas Marten on 4/13/2017.Mailed to pro se party Bertram L. Wilson by regular mail. (sz)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BERTRAM L. WILSON, JR.,
Plaintiff,
vs.

Case No. 16-1153-JTM

WICHITA STATE UNIVERSITY, et al.,
Defendants.

MEMORANDUM AND ORDER

After being ejected from the Wichita State University library, plaintiff Bertram
Wilson brought this lawsuit against WSU, its Vice President for Student Affairs, a librarian,
two WSU police officers, and the General Counsel of the university. WSU requires that
former students, such as Wilson, have a current research card to enter the library. Wilson
alleges that after his card expired, officers removed him from the library on March 11, 2014.
He was again excluded three days later, and alleges that a no-trespass order was issued.
Wilson complains the librarian did not respond to his emails about the research card, and
that WSU’s general counsel subsequently sent him a letter indicating he agreed with the
no-trespass order. Wilson’s May 26, 2016 pro se complaint seeks $5 million in damages for
the alleged psychological stress and mental anguish caused by his ejection from the library.
Adopting the Report and Recommendation issued by the Magistrate Judge, the court on

July 27, 2016 dismissed the complaint for failure to state a claim.
On appeal, the Tenth Circuit found that Wilson’s Complaint presented two potential
Fourteenth Amendment claims — an equal protection claim that he had been treated
differently from other library patrons, and a procedural due process claim for failing to
reissue his card. As to the former, the court agreed that “Wilson states no viable equal
protection claim” (Dkt. 16, at 4). The court noted the university setting, and observed that
“[i]n the context of equal-protection claims, university officials act within their proper role
in making policies protecting the safety of students, faculty, or other citizens.” (Dkt. 16, at
5). However, the court could not conclude that
allowing Wilson to amend his procedural-due-process allegations would be
futile. Wilson might be able to show that the university has a policy on
library usage that creates a property interest. If the university’s policy is to
issue cards unless certain rules are violated, that self-restriction on the
University’s discretion could create a due-process property interest.
Id. Citing Brown v. Eppler, 725 F.3d 1221, 1226-27 (10th Cir. 2013), the court observed that
a property interest may arise “[i]f regulations mandate a certain result so long as certain
rules are followed.” Id.
On remand, Wilson has failed to file any amended complaint. He did file a “Case
Review and Update.” (Dkt. 30.). In this document, Wilson writes that WSU’s research card
policy
facilitated arbitrary distinctions, as based on economic background, standing
and other attributes, through decisions to issue and reissue or not and when
to do this, the policy was applied by arbitrary means, to differentiate,
instigate problems, and exclude from the premises, a library patron felt to be
in contrast to property and material interests of the university, and to hold
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related beliefs, the property interests, (evidenced in the user of the research
policy), became inordinate to the use of the facility for study and research as
a public institution.
Id. at 2.
The defendants subsequently moved to dismiss the action, arguing that WSU and
its agents operating in their official capacity are protected from liability by the Eleventh
Amendment. To the extent Wilson might be seeking recovery against the named
defendants for actions in their individual capacities, the defendants argue that they are
qualifiedly immune.1
Wilson then filed another “Case Review and Update” (Dkt. 36, at 2) which
essentially repeats his earlier pleading of the same name, adding only that the defendants’
motion is “based on unsubstantiated premises,” and that the defendants have not provided
“any evidence of infraction by the plaintiff.”
The court will grant the Motion to Dismiss. The plaintiff’s Case Updates have done
nothing to allege that the University requires that its librarians issue research cards except
where an applicant has violated University rules, or otherwise constrained their discretion.
See Brown v. Eppler, 725 F.3d at 1226-27 (“when analyzing whether a protected interest
exists, [the court] focuses on whether there are ‘specific directives to the decisionmaker that
if the regulations’ substantive predicates are present, a particular outcome must follow’”

The defendants also argue (Dkt. 35, at 10-11) that Wilson’s Case Update should not be
considered as an Amended Complaint, as it was filed without leave of court, in violation of
Fed.R.Civ.Pr. 15(a)(2). No such leave was obtained, but the court will treat the pleading as an
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amended complaint in light of Wilson’s pro se status.
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(quoting and adding emphasis to Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 463 (1989))).
Wilson’s allegations simply repeat formulaic allegations of an arbitrary denial of library
card privileges, coupled with repetition of his dismissed equal protection claim that the
policy permits denials based on “economic background, standing and other attributes.”
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)
(quotations and citations omitted). And the generous construction to be given the pro se
litigant’s allegations “does not relieve the plaintiff of the burden of alleging sufficient facts
on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). The court need not accept “mere conclusions characterizing pleaded facts,”
Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990), and “will not supply
additional factual allegations to round out a plaintiff’s complaint or construct a legal theory
on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Even assuming Wilson presented a claim for deprivation of due process, he has
provided no response to the defendants’ arguments presented in their motion to dismiss.
Wilson’s claims against the university and its agents acting in their official capacities are
barred by the Eleventh Amendment. See Edelman v. Jordan, 415 U.S. 651, 663 (1974),
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984); Isham v. Wilcox, 2001 WL
505235, at *1 (10th Cir. May 14, 2001). To the extent he advances claims against the named
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defendants in their individual capacities, those defendants enjoy qualified immunity for
their actions in removing Wilson. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). And to
the extent Wilson seeks revocation of the no-trespass order, the defendants argue that the
order expired on March 17, 2016, before he filed the present action, and the matter is thus
moot. Wilson has failed make many response at all to defendants’ arguments, which the
court grants for good cause shown and pursuant to D.Kan.R. 7.4.
IT IS ACCORDINGLY ORDERED this 13th day of April, 2017, that the defendants’
Motion to Dismiss (Dkt. 34) is hereby granted.

___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE

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