Akintunde, et al v. University of Nebraska at Omaha, et al
Filing
52
MEMORANDUM AND ORDER - The Motion to Dismiss (Filing No. 20 ) filed by Defendants Board of Regents of the University of Nebraska and David Boocker in his official capacity, is granted. The Motion for Judgment on the Pleadings (Filing No. 23 ) filed by Defendant David Boocker in his individual capacity, is granted. The Objection to the Magistrate Judges Order (Filing No. 48 ) is overruled. The Declaration of Sheri Long Cotton (Filing No. 49 ) filed as an objection to the Magistrate Judges order, will be terminated as improperly filed. This action is dismissed with prejudice. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
OMOWALE AKINTUNDE, MANFRED
WOGUGU,
4:15CV3011
Plaintiffs,
vs.
MEMORANDUM AND ORDER
BOARD OF REGENTS OF THE
UNIVERSITY OF NEBRASKA - OMAHA,
DAVID BOOCKER, DOES 1 THROUGH
4, in their Individual capacity;
Defendants.
This matter is before the Court on the Motion to Dismiss (Filing No. 20) filed by
Defendants Board of Regents of the University of Nebraska (“BRUN”) and David
Boocker (“Boocker”) in his official capacity (collectively “Defendants”),1 and the Motion
for Judgment on the Pleadings (Filing No. 23) filed by Defendant Boocker in his
individual capacity. Also before the Court is the Objection to Magistrate Judge’s Order
(Filing No. 48). For the reasons discussed below, the Motions will be granted, the
Objection will be overruled, and Plaintiffs’ claims will be dismissed.
PROCEDURAL HISTORY
On February 9, 2015, Plaintiffs filed their First Amended Complaint against the
BRUN, the University of Nebraska at Omaha (“UNO”), Dr. Boocker, and four
unidentified individuals. (Filing No. 3 at 1.) On March 18, 2015, the BRUN, UNO, and
1
Defendants note that the Motion is brought on behalf of the BRUN and Boocker in his official
capacity because the caption of the Second Amended Complaint lists only BRUN and Boocker as
Defendants. To the extent the Second Amended Complaint is also a claim against the University of
Nebraska at Omaha, that body is included within the term “Defendants.”
Dr. Boocker collectively filed a Motion to Dismiss the First Amended Complaint pursuant
to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). (Filing No. 8.)
Plaintiffs filed their Second Amended Complaint on April 17, 2015. (Filing No.
12.) The caption of the Second Amended Complaint names only the BRUN and
Boocker as defendants. On May 4, 2015, Plaintiffs filed several documents purporting to
be “supplements” to the Second Amended Complaint. (Filing Nos. 17, 18, 19.) The
body of the Second Amended Complaint also lists UNO as a defendant. (Filing No. 12
at 2-3.) The Plaintiffs seek money damages as well as declaratory and injunctive relief
under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments to
the U.S. Constitution. (Filing No. 12 at 1, 18-19.)
Defendants filed the Motion to Dismiss (Filing No. 20) on May 6, 2015, and
Boocker filed the Motion for Judgment on the Pleadings (Filing No. 23) on May 19,
2015. Plaintiffs requested an extension of time to respond to the Motions and were
ordered to respond on or before June 12, 2015. (Filing No. 27.)
Plaintiffs did not
respond. On June 16, 2015, Plaintiffs moved for an order permitting them to respond
out of time, arguing excusable neglect due to counsel for Plaintiffs moving to a new
residence. (Filing No. 29.) Defendants resisted the extension (Filing No. 30). On July 8,
2015, the Court granted Plaintiffs’ request to respond out of time, giving Plaintiffs until
July 10, 2015, to respond Defendants’ dispositive Motions. (Filing No. 41.) Plaintiffs
again failed to respond. Instead, on July 13, 2015, Plaintiffs filed a Motion to file a Reply
to Defendants’ Answer (Filing No. 42). Magistrate Judge F.A. Gossett denied Plaintiffs’
Motion on July 20, 2015. (Filing No. 47.) On August 3, 2015, Plaintiffs filed an Objection
to Magistrate Judge’s Order. (Filing No. 48.)
2
FACTUAL BACKGROUND
Plaintiffs failed to timely respond to the Defendants’ Motions. For purposes of
these Motions, the Court accepts the facts pled in the Second Amended Complaint as
true, though it need not accept Plaintiffs’ legal conclusions:
Plaintiff Omowale Akintunde (“Akintunde”) is employed by the BRUN as an
Associate Professor within the Black Studies Department (the “Department”) in UNO’s
College of Arts and Sciences (“the College”). Akintunde was chair of the Department
from August of 2008 until August 15, 2011. Plaintiff Manfred Wogugu (“Wogugu”) is
employed as an Assistant Professor in the Department. In 2012, Professor Nikitah
Okembe-RA Imani, Ph.D. (“Imani”) was named Chair of the Department by members of
the Department faculty.
Following Imani’s hiring, conflicts over personnel issues began to arise within the
Department. On February 19, 2014, a meeting (the “Meeting”) was held of the
Department’s “core” faculty, which included the Plaintiffs, Imani, Associate Professor
Margaret “Peggy” Jones (“Jones”), and Assistant Professor Jennifer Harbour, Ph.D.
(“Harbour”). Before the Meeting, Imani shared with the “core” faculty a copy of a onepage document entitled “Department of Black Studies Copy Policy Effective 2/10/2014
Edition 1” (“Copy Policy”).
During the Meeting, members of the Department “core” faculty in attendance,
including Plaintiffs, were critical of the Copy Policy and other administrative matters
within the Department, and Imani lost his composure. When Imani left the Meeting and
closed the door behind him, a framed picture fell to the floor in the adjoining reception
3
area, and the fall broke the glass in the picture frame; Imani cut himself while cleaning
up the broken glass.
On February 22, 2014, Dr. Imani sent Akintunde and Jones an email apology.
(Filing No. 22, ¶ 19.) Subsequently, the Plaintiffs, along with Harbour and Jones,
prepared and signed a four-page memo dated February 24, 2014, and delivered copies
to Boocker and Paul Kosel (“Kosel”), Manager of UNO Campus Security and co-chair of
the UNO Behavioral Review Team (“BRT”). The BRT is a program developed by UNO.
Its procedures provide, “To educate and empower all members of the University
community, resources and procedures are in place to prevent, deter, and respond to
concerns regarding acts of violence.” (Filing No. 12 ¶ 28.) The BRT reviews situations
and recommends actions in accordance with existing UNO policies. (Filing No. 12 ¶ 30.)
The BRT Procedures state, “It is the responsibility of all faculty, staff, and
students to immediately report any situation that could reasonably result in harm,” and
“University community members will be able to report threatening or concerning
behavior to the Team by speaking directly to a committee member or submitting an
incident report.” (Filing No. 22 ¶ 24.)
The BRT Procedures further state, “It is
everyone’s responsibility to report to the Behavioral Review Team situations that could
possibly result in harm to any member of the campus community.” (Filing Nos. 22 ¶ 24,
6-4 at ECF 6.) Plaintiffs allege that Defendants’ efforts to resolve issues with Imani did
not follow BRT Procedures.
Plaintiffs further allege that the Defendants “exacerbated the issues between the
faculty and Imani by delivering a copy of Plaintiffs’ complaint to Defendant [sic] Imani.”
(Filing No. 12 ¶ 32.) Boocker denies this allegation and contends Plaintiffs and the
4
other two signatories to the four-page memo dated February 24, 2014, sent a copy of
the document to Dr. Imani themselves. (Filing No. 22 ¶ 25.) Plaintiffs also allege
Boocker did not forward the Plaintiffs’ memo to the BRT; Boocker contends there was
no need for him to do so. (Filing No. 12, ¶¶ 32, 35; Filing No. 22 ¶ 28.)
Plaintiffs allege that Dr. Boocker (and unidentified others) “deliberately colored
Imani’s opinion” of the Department “in an effort to create a distrust among the
[Department’s] faculty and Imani” and “to prevent it from operating effectively, thus,
justifying the elimination of Black Studies as a department.” (Filing No. 12-1 ¶¶ 79-80.)
Dr. Boocker denies these allegations. Plaintiffs further allege that Boocker “knowingly
and deliberately . . . delivered a BRT request from the faculty . . . in an attempt to create
hostility and distrust in the Black Studies Department”; permitted Imani to violate
University rules; failed to follow the advice of a consultant hired to address Plaintiffs’
complaint; and failed to obtain Plaintiffs’ suggested mediator. (Filing No. 12-1 ¶ 81.)
Boocker denies these allegations.
STANDARD OF REVIEW
“Judgment on the pleadings is appropriate where no material issue of fact
remains to be resolved and the movant is entitled to judgment as a matter of law.”
Minch Family LLLP v. Buffalo-Red River Watershed Dist., 628 F.3d 960, 965 (8th Cir.
2010) (citing Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir. 2002)). This is “the
same standard used to address a motion to dismiss for failure to state a claim under
Rule 12(b)(6).” Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir. 2009).
Accordingly, the Court will assess both of Defendants’ Motions under the same
standard.
5
“To survive a motion to dismiss, the factual allegations in a complaint, assumed
true, must suffice ‘to state a claim to relief that is plausible on its face.’” Northstar Indus.,
Inc. v. Merrill Lynch & Co., 576 F.3d 827, 832 (8th Cir. 2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A complaint must contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2).
“[A]lthough a complaint need not include 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.’” C.N. v. Willmar Pub. Sch., Indep. Sch. Dist. No. 347, 591 F.3d 624, 629-30
(8th Cir. 2010) (quoting Twombly, 550 U.S. at 555). “Instead, the complaint must set
forth ‘enough facts to state a claim to relief that is plausible on its face.’” Id. at 630
(citing Twombly, 550 U.S. at 570).
“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir.
2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation marks
omitted).
“Courts must accept . . . specific factual allegations as true but are not
required to accept . . . legal conclusions.” Outdoor Cent., Inc. v. GreatLodge.com, Inc.,
643 F.3d 1115, 1120 (8th Cir. 2011) (quoting Brown v. Medtronic, Inc., 628 F.3d 451,
459 (8th Cir. 2010)) (internal quotation marks omitted). When ruling on a defendant's
motion to dismiss, a judge must rule “on the assumption that all the allegations in the
complaint are true,” and “a well-pleaded complaint may proceed even if it strikes a
savvy judge that actual proof of those facts is improbable, and ‘that a recovery is very
6
remote and unlikely.’” Twombly, 550 U.S. at 555, 556 (quoting Scheuer v. Rhodes, 416
U.S. 232, 236 (1974)). The complaint, however, must still “include sufficient factual
allegations to provide the grounds on which the claim rests.” Drobnak v. Andersen
Corp., 561 F.3d 778, 783 (8th Cir. 2009).
DISCUSSION
I.
Sovereign Immunity
Defendants argue they are immune from suit under the Eleventh Amendment.
Sovereign immunity bars any suit brought in federal court against a state or state
agency, regardless of the nature of the relief sought, unless Congress has abrogated
the states' immunity or a state has consented to suit or waived its immunity. See
Seminole Tribe v. Florida, 517 U.S. 44, 74 (1996); Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 100 (1984); Edleman v. Jordan, 415 U.S. 651, 663 (1974).
The Eighth Circuit has held that “[w]hile under the doctrine set forth in Ex Parte Young,
209 U.S. 123 (1908), state officials may be sued in their official capacities for
prospective injunctive relief without violating the Eleventh Amendment, the same
doctrine does not extend to states or state agencies.” Monroe v. Arkansas State Univ.,
495 F.3d 591, 594 (8th Cir. 2007); see also Anthony K. v. State, 855 N.W.2d 802, 785
(Neb. 2014). Sovereign immunity has been recognized under Nebraska law. Anthony
K., 855 N.W.2d at 812.
a.
UNO and the BRUN
Under the Eleventh Amendment, states and state agencies may not be sued for
“any kind of relief,” whether monetary or prospective. Monroe, 495 F.3d at 594.
Although there is some confusion as to whether UNO is still a party to this lawsuit, both
7
the Nebraska Supreme Court and the Eighth Circuit Court of Appeals have held that the
BRUN and the University of Nebraska, including UNO, are state agencies and thus
entitled to state sovereign immunity under the Eleventh Amendment to the U.S.
Constitution. See Doe v. Bd. of Regents of the Univ. of Neb., 788 N.W.2d 264, 281, n.
51 (Neb. 2010) (affirming dismissal of claims against the BRUN and the universities
within the University of Nebraska system are state agencies entitled to sovereign
immunity); Becker v. Univ. of Neb. at Omaha, 191 F.3d 904, 908-09 (8th Cir. 1999)
(recognizing UNO is considered an arm of the State of Nebraska and thus immune from
suit for purposes of the Eleventh Amendment); see also Bd. of Regents of Univ. of
Nebraska v. Dawes, 370 F. Supp. 1190, 1193 (D. Neb. 1974) (concluding that Neb.
Rev. Stat. § 85–105 does not grant the BRUN the power to waive immunity from suit in
federal court). There is no evidence that the BRUN has waived its sovereign immunity
against Plaintiffs’ claims. Further, the extent UNO is a party to this action, it has not
waived its sovereign immunity. Accordingly, Plaintiffs’ claims against the BRUN and any
claims against UNO will be dismissed.
b.
Claims Against Boocker in Official Capacity
Defendant Boocker argues that Plaintiffs’ claims against him in his official
capacity must be dismissed.
In addition to barring claims against the state, “the
Eleventh Amendment prohibits federal-court lawsuits seeking monetary damages from
individual state officers in their official capacities because such lawsuits are essentially
‘for the recovery of money from the state.’” Treleven v. Univ. of Minn., 73 F.3d 816, 818
(8th Cir. 1996) (footnote omitted) (quoting Ford Motor Co. v. Dep't of Treasury, 323 U.S.
459, 464 (1945)); see also Grand River Enters. Six Nations, Ltd. v. Beebe, 467 F.3d
8
698, 701 (8th Cir. 2006) (“The Eleventh Amendment protects states from being sued in
federal court without their consent and also bars suits against state officers acting in
their official capacities when the state itself is ‘the real, substantial party in interest.’”
(quoting Ford Motor Co., 323 U.S. at 464)). Plaintiffs’ Second Amended Complaint
asserts claims against Boocker in his official capacity and seeks relief that includes
money damages. For such claims, UNO and the State of Nebraska are the real party in
interest and Plaintiffs’ claims for money damages against Boocker in his official capacity
must be dismissed.
In addition to money damages, the Plaintiffs’ Second Amended Complaint seeks
declaratory prospective relief against Boocker. As noted above, “. . . under the doctrine
set forth in Ex Parte Young, 209 U.S. 123 (1908), state officials may be sued in their
official capacities for prospective injunctive relief without violating the Eleventh
Amendment . . . .” Monroe, 495 F.3d at 594. This exception to Eleventh Amendment is
“available only when a plaintiff seeks to vindicate a federal right.” Grand River
Enterprises Six Nations, Ltd. v. Beebe, 467 F.3d 698, 701 (8th Cir. 2006). Thus, “Ex
parte Young simply permits an injunction against a state official in his official capacity to
stop an ongoing violation of federal law.” Randolph v. Rodgers, 253 F.3d 342, 348 (8th
Cir. 2001).
There has been no waiver of sovereign immunity with respect to the type of
declaratory relief Plaintiffs seek. Each of Plaintiffs’ requests for declaratory relief seeks
a declaration that Boocker and the BRUN’s past bad acts violated the Constitution. This
Court has previously noted that “while a suit to enjoin state officials in their official
capacity may proceed if the complaint alleges an ongoing violation of federal law and
9
seeks relief properly characterized as prospective, a declaratory judgment establishing
past liability of the State is nevertheless forbidden by the Eleventh Amendment.”
Jacobson v. Bruning, No. 4:06-CV-3166, 2007 WL 1362638, at *2 (D. Neb. Apr. 24,
2007) (citing Verizon Maryland, Inc. v. Public Service Com'n of Maryland, 535 U.S. 635,
646 (2002)) (Kopf, J.) (emphasis in original) aff'd, 281 F. App'x 638 (8th Cir. 2008).
Accordingly, Plaintiffs’ claims for declaratory relief against Boocker must be dismissed.
Similarly, Plaintiffs’ claims for prospective relief against Boocker do not fall within
the Ex Parte Young exception. The only prayer seeking prospective relief against
Boocker in his official capacity is Plaintiffs’ request that Boocker “be preliminarily and
permanently enjoined from interacting, supervising or communicating with the Plaintiffs.”
(Filing No. 12-1 at 9.) Such a broad injunction would not be an “injunction against a
state official in his official capacity to stop an ongoing violation of federal law.” See
Randolph, 253 F.3d at 348. The Second Amended Complaint provides no indication
that Boocker’s ability to interact, supervise, or communicate with Plaintiffs broadly
affects their constitutional rights. Accordingly, the Court will dismiss Plaintiffs’ claims
against Boocker in his official capacity.
II.
Claims Against Boocker in his Individual Capacity
Defendants argue that the remaining claims against Boocker in his individual
capacity must be dismissed based on qualified immunity. To determine whether
Boocker is “entitled to qualified immunity, [the Court] must conduct a two-step inquiry:
(1) whether the facts, viewed in the light most favorable to the plaintiff, demonstrate the
deprivation of a constitutional or statutory right; and (2) whether the right was clearly
established at the time of the deprivation.” Solomon v. Petray, No. 13-1635, 2015 WL
10
4546837, at *5 (8th Cir. July 29, 2015) (quoting Jones v. McNeese, 675 F.3d 1158,
1161 (8th Cir. 2012)). “Courts have discretion to decide the order in which to engage
these two prongs.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (citing Pearson v.
Callahan, 555 U.S. 223, 236 (2009)). The Court concludes that Plaintiffs have failed, in
each of their claims, to articulate a violation of a clearly established constitutional or
statutory right.
a.
First Cause of Action
Plaintiffs’ first cause of action, labeled as a freedom of speech claim, asserts that
Plaintiffs “have a property interest in the Policies, Rules and Regulations adopted by the
Defendants guaranteeing Plaintiffs a safe workplace” and that “Plaintiffs are being
subjected to a hostile work environment and the threat of verbal and physical abuse,”
thus depriving Plaintiffs “of the relief and protections to which they are entitled.” (Filing
No. 12-1 ¶¶ 87-90.) The First Amendment’s Freedom of Speech Clause does not
expressly provide a property interest to a “safe workplace.” Even if such a right existed,
for a constitutional right to be “clearly established,” “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Plaintiffs must
identify analogous case law or a statute establishing that reasonable officials should
have known that their conduct was unlawful. See Casteel v. Pieschek, 3 F.3d 1050,
1053 (7th Cir. 1993).
Property interests “are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as state law.” Bd. of
Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). In this case, the Second
11
Amended Complaint alleges Plaintiffs have a “property interest in the Policies, Rules,
and Regulations adopted by the Defendants guaranteeing Plaintiffs a safe workplace.”
(Filing No. 12-1 ¶ 87.) The Constitution does not guarantee government employees
minimal levels of safety or security in the workplace. See Collins v. City of Harker
Heights, Tex., 503 U.S. 115, 129 (1992) (holding that the Due Process Clause does not
“guarantee municipal employees a workplace that is free of unreasonable risks of
harm”). Therefore, it cannot be said that Plaintiffs’ asserted property interest has been
clearly established. Accordingly, Plaintiffs’ first cause of action against Boocker must be
dismissed.
b.
Second Cause of Action
Plaintiffs’ Second Cause of Action alleges that UNO’s Black Studies Department
has the highest percentage of Black employees, and that the Defendants have allowed
a hostile and dangerous working environment to exist over a number of years. Based
on these assertions, Plaintiffs allege that the Black Studies Department is being treated
differently because of its racial makeup, in violation of the Fourteenth Amendment’s
Equal Protection Clause. (Filing No. 12-1 ¶¶ 91-94.) Thus, the second cause of action
appears to be a claim under the Equal Protection Clause on the basis of racial
discrimination. The Eighth Circuit has recognized that “the constitutional right to be free
from [racial] discrimination is so well established and so essential to the preservation of
our constitutional order that all public officials must be charged with knowledge of it.”
Burton v. Arkansas Sec'y of State, 737 F.3d 1219, 1229 (8th Cir. 2013) (quoting
Wimbley v. Cashion, 588 F.3d 959, 963 (8th Cir. 2009)). For purposes of qualified
immunity, the Court looks to whether Plaintiffs have alleged a violation of that right.
12
Absent direct evidence of discrimination, the Eighth Circuit analyzes § 1983
equal protection claims using the McDonnell Douglas burden-shifting framework. See
e.g. Burton v. Ark. Sec’y of State, 737 F.3d 1219, 1229 (8th Cir. 2013); Hager v. Ark.
Dep’t of Health, 735 F.3d 1009, 1014 (8th Cir. 2013). Because Plaintiffs have not
alleged direct discrimination, they must first allege a prima facie case of discrimination.
To state a prima facie claim, Plaintiffs must allege, “(1) [they were] a member of a
protected class, (2) [they] met [their] employer's legitimate expectations, (3) [they]
suffered an adverse employment action, and (4) the circumstances give rise to an
inference of discrimination.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1019 (8th Cir. 2011)
(citation omitted).
Plaintiffs have not pled a prima facie case of discrimination because they have
not alleged an adverse employment action. To be sufficiently “adverse,” an employment
action must result in a tangible change in working conditions and produce a material
employment disadvantage. Musolf v. J.C. Penney Co., 773 F.3d 916, 920, n.3 (8th Cir.
2014). Adverse employment actions may include termination, a reduction in pay, or a
loss of future career prospects. See Robinson v. American Red Cross, 753 F.3d 749,
755 (8th Cir. 2014). “Acts short of termination may constitute adverse employment
actions, however, not everything that makes an employee unhappy is actionable.”
Meyers v. Nebraska Health & Human Servs., 324 F.3d 655, 659 (8th Cir. 2003) (citing
Montandon v. Farmland Indus., Inc., 116 F.3d 355, 359 (8th Cir. 1997)). Minor changes
in working conditions with no reduction in pay do not constitute materially adverse
actions. Brown v. Lester E. Cox Med. Ctrs., 286 F.3d 1040, 1045 (8th Cir. 2002). Loss
of prestige, petty slights, or minor annoyances do not rise to the level of adverse
13
employment actions. See Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 987 (8th Cir.
2011).
Plaintiffs’ only ostensible allegation of adverse action is that the working
environment became hostile. See Faragher v. City of Boca Raton, 524 U.S. 775, 808
(1998) (noting that a hostile work environment is actionable only when culminates in a
tangible employment action).
However, Plaintiffs continue to occupy their same
positions within UNO and they have alleged no tangible change in working conditions or
reduction in pay. See Singletary v. Missouri Dep't of Corr., 423 F.3d 886, 891 (8th Cir.
2005) (concluding there was no adverse employment action where employee
maintained his pay, grade, and benefits even though employee was placed on leave
pending investigation).
Accordingly, Plaintiffs have alleged no adverse employment
action and therefore have not alleged a violation of a constitutional right.
c.
Third Cause of Action
Plaintiffs’ final cause of action alleges that Defendants violated their property
interest in their freedom of expression guaranteed by the First Amendment. Plaintiffs
allege that “[a]lthough [Defendant]2 knows the Black Studies Department is
deteriorating, the reasons why it is deteriorating, and the action necessary to restore the
department to full effectiveness, he deliberately refuses to take said action;” and that
“[Defendant] refuses to take said reparative action because he desires to justify the
change of the Black Studies Department as a Department to that of a Program placed
2
The Second Amended Complaint uses the term “Plaintiff’ in paragraphs 97-99, though the
allegations appear to refer to actions by a Defendant. To view the Second Amended Complaint in a light
most favorable to Plaintiffs, the Court presumes Plaintiffs intended to refer to a Defendant’s activities
rather than their own.
14
under the supervision of a Department Director.” (Filing No. 12-1 ¶¶ 96-98.) Plaintiffs
further allege that the “[Defendant’s] characterization of a ‘Program’ will deprive them of
the freedom of expression they have enjoyed in developing unique successful teaching
programs and methods and will require them to act according to the dictates of the
Director of the Department under which they are placed.” (Filing No. 12-1 ¶ 99.)
The basis for Plaintiffs’ claims in the third cause of action are difficult to identify.
Even given a generous reading, the third cause of action fails because the Plaintiffs
have not alleged a particularized injury in fact.
“To establish Article III jurisdiction,
[Plaintiffs] must demonstrate standing to assert this claim against [this] defendant[ ].”
Duit Const. Co. Inc. v. Bennett, No. 14-2779, 2015 WL 4645965, at *2 (8th Cir. Aug. 6,
2015). “Standing requires (1) an injury that is concrete and particularized and actual or
imminent, not conjectural or hypothetical, (2) that the injury be fairly traceable to the
challenged action of the defendant, and (3) that it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Id. (quoting
Turkish Coalition of Am., Inc. v. Bruininks, 678 F.3d 617, 621 (8th Cir. 2012)).
Plaintiffs appear to argue that Boocker intends to increase the tension within
UNO’s Black Studies Department such that Boocker would have an excuse to place the
Black Studies Department under the guidance of another department. (Filing No. 12 ¶
49.)
Plaintiffs allege that this action would somehow deprive Plaintiffs of their
independence and freedom of expression guaranteed by the First Amendment. (Filing
No. 12 ¶ 49, 99.) Plaintiffs’ claims are far too speculative to satisfy Article III’s standing
requirements. “Article III does not authorize federal courts to offer legal advice about
hazy potentialities.” Simes v. Ark. Judicial Discipline & Disability Comm’n., 734 F.3d
15
830, 835 (8th Cir. 2013). Plaintiffs’ claims fail to assert any facts suggesting that future
re-classification of the Black Studies Department is more than conjecture or speculation.
Further, Plaintiffs fail to allege any objectively reasonable connection between such
speculative conduct and a chilling effect on their speech. Turkish Coal. of Am., 678 F.3d
at 622 (dismissing claims for lack of standing where Plaintiffs failed to establish an
objectively reasonable chilling effect on speech). Accordingly, Plaintiffs’ third cause of
action must be dismissed for lack of standing.
III.
Objection to Magistrate Judge’s Order
After failing to timely respond to Defendants’ Motions, Plaintiffs moved for leave
to file a reply to Boocker’s Answer. (Filing No. 42.) Magistrate Judge F.A. Gossett
denied Plaintiffs’ request, noting that Plaintiffs had not submitted a completed proposed
reply and that the motion for leave appeared to be a ploy to respond to Defendants’
pending motions out of time. (Order, Filing No. 47 at 2.) Moreover, Judge Gossett
concluded that Plaintiffs articulated no legitimate reason to grant leave to file a reply to
Defendants’ Answer. (Filing No. 47 at 2.) Plaintiffs objected to Judge Gossett’s Order,
presumably arguing that Judge’s Gossett’s conclusion was clearly erroneous or contrary
to law.
a.
Standard of Review
Upon review of a Magistrate Judge’s order of a non-dispositive motion, the
District Judge to whom the case is assigned shall consider objections and may modify
or set aside any part of the Magistrate Judge’s Order only if it is shown to be “clearly
erroneous or contrary to law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). Clear
error “is a high standard to meet,” see Napolitano v. Omaha Airport Auth., No. 8:08-CV16
299, 2009 WL 1740826, at *3 (D. Neb. June 15, 2009) (quotation omitted), and requires
a “definite and firm conviction on the part of the reviewing court that a mistake has been
made,” see Schinzing v. Mid-States Stainless, Inc., 415 F.3d 807, 813 (8th Cir. 2005).
b.
Discussion
Plaintiffs appear to argue that because Defendants’ assertions in the Answer
were untrue, a reply is necessary under Federal Rule of Civil Procedure 11. However,
Plaintiffs have not complied with Rule 11’s requirement that a separate motion be filed
that specifically describes the alleged misconduct. Fed. R. Civ. P. 11(b). Moreover,
Plaintiffs have not identified any reason a reply is appropriate at this time. A plaintiff
many not reply to an answer as a matter of right. See Fed. R. Civ. P. 7(a)(7) (plaintiff
may only file a reply to an answer “if the court orders one”). Other than replying to a
counterclaim, “a reply to an answer ordinarily is unnecessary and improper in federal
practice.” 5 Charles Alan Wright & Arthur Miller, et al., Fed. Prac. & Proc. Civ. § 1185
(3d. ed. 1998 & Supp. 2013). The Court agrees with Judge Gossett that the Plaintiffs
have failed to articulate any reason that a reply is appropriate in this case. Accordingly,
Plaintiffs’ objections will be overruled.
CONCLUSION
For the reasons stated, Plaintiffs’ claims against the BRUN, Boocker, and UNO,
to the extent UNO is a party, will be dismissed. Plaintiffs’ objection to Judge Gossett’s
Order will be overruled. Accordingly,
IT IS ORDERED:
17
1.
The Motion to Dismiss (Filing No. 20) filed by Defendants Board of
Regents of the University of Nebraska and David Boocker in his official
capacity, is granted;
2.
The Motion for Judgment on the Pleadings (Filing No. 23) filed by
Defendant David Boocker in his individual capacity, is granted;
3.
The Objection to the Magistrate Judge’s Order (Filing No. 48) is overruled;
4.
The Declaration of Sheri Long Cotton (Filing No. 49) filed as an objection
to the Magistrate Judge’s order, will be terminated as improperly filed;
5.
This action is dismissed with prejudice; and
6.
A separate judgment will be entered.
Dated this 20th day of August, 2015
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?