Bradley et al v. Board of Regents of Southeastern Oklahoma State University, Campus Disciplinary Council of Southeastern Oklahoma State University

Filing 25

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 14 Motion to Dismiss Jercolby Bradley; granting in part 15 Motion to Dismiss Case for Failure to State a Claim in that Plaintiffs' claim based in a violation of their due process rights is hereby dismissed. Case is remanded to the District Court for Bryan County (terminates case) (dma, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JERCOLBY LYNN BRADLEY;
KEITH CRADDOCK;
MATTHEW RYAN LEATHERWOOD;
ARINZECHUKWU EZIAKOR; and
KRISHON DAYE,

)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
STATE OF OKLAHOMA, ex rel.
)
BOARD OF REGENTS OF
)
SOUTHEASTERN OKLAHOMA STATE
)
UNIVERSITY, CAMPUS DISCIPLINARY )
COUNCIL OF SOUTHEASTERN
)
OKLAHOMA STATE UNIVERSITY,
)
)
Defendants.
)

Case No. CIV-13-293-KEW

OPINION AND ORDER
This matter comes before the Court on Plaintiff Jercolby
Bradley’s pro se Motion to Dismiss Without Prejudice (Docket Entry
#14)

and

Defendants’

Motion

to

Dismiss

(Docket

Entry

#15).

Plaintiffs commenced this action on June 3, 2013 in the District
Court in and for Bryan County, Oklahoma.

On July 5, 2013,

Defendants filed a Notice of Removal effectuating the removal of
the case to this Court.
In their Petition, Plaintiffs alleged that on April 1, 2013,
they

were

students

at

Southeastern

Oklahoma

State

University

(“SEOSU”) and were informed they had performed acts contrary to the
SEOSU Student Code of Conduct (“SCC”).

After an informal hearing,

the Dean of Student Affairs notified Plaintiffs they had violated
the SCC and would be suspended for one academic year. The decision
was affirmed after appeal to the Committee on Student Conduct (the

“Committee”)

and

appearance

at

a

hearing

before

that

body.

Plaintiffs were immediately suspended from SEOSU.
Plaintiffs allege they bring this action as an appeal of the
rulings of the Dean and of the Committee under the Administrative
Procedures Act (the “APA”) and “the SCC.”
Committee

failed

“to

conduct

a

Plaintiffs allege the

meaningful

hearing

with

an

opportunity to be heard” in violation of the APA.

Plaintiffs

further allege the Committee failed to follow the SCC.

Plaintiffs

were allegedly
denied the right for an attorney to be present for them,
to act on their behalf, to examine and cross-examine
witnesses, and to make sure that competent evidence was
presented which would allow any and all decision makers
to make a decision that was grounded in the facts of the
case.
See, Petition for Review of Administrative Proceedings,
(Docket Entry #4).
Plaintiffs contend that were denied due process by the alleged
failure to follow the APA.

They request a review of the findings

of the Dean and the Committee under the APA and “either the Court
remand this case back for a de novo review before a new and
impartial CSC [Committee], or conduct a trial de novo on the issues
itself.”

(Bracketed information added by this Court.).

As an initial matter, Plaintiffs’ response to this Court’s
show cause order will be accepted.
allowed as filed out-of-time.
2

Thus, the response will be

Additionally, Plaintiff Jercolby Bradley, through his pro se
Motion to Dismiss, requests that he be permitted to dismiss his
claims

against

Defendants

without

prejudice

to

re-filing.

Defendants contend the dismissal should be with prejudice since
this Plaintiff did not participate in this federal action after
removal.

This Court finds no basis for Defendants’ request.

Defendants will not suffer a plain legal prejudice other than the
prospect of a second lawsuit should Plaintiff Bradley’s dismissal
be accomplished without prejudice.

Keal v. Monarch Life Ins. Co.,

125 F.R.D. 567, 569 (D. Kan. 1989).

Accordingly, the dismissal

will be granted without prejudice.
The removal of this action was effectuated pursuant to 28
U.S.C. § 1441(a) based upon the existence of a federal question
wherein Plaintiffs allege a violation of their due process rights.
See Notice of Removal, (Docket Entry #3). Since this stands as the
basis for this court to exercise federal jurisdiction, the adequacy
and legal plausibility of Plaintiffs’ allegations surrounding a
lack of due process will be initially examined.
In order to establish a claim for a violation of due process
rights, Plaintiffs must first possess a property interest in the
continued attendance at a college or university. Siblerud v. Colo.
State Bd. of Agriculture, 896 F.Supp. 1506, 1512-13 (D. Colo. 1995)
citing Bd. of Curators of the Univ. of Missouri v. Horowitz, 435

3

U.S. 78, 82 (1978).

Property interests are not created by the

Constitution but must be defined by an independent source such as
state law.

Board of Regents of State Colleges v. Roth, 408 U.S.

564, 577 (1972).

Unlike the right to a free public education,

Oklahoma law does not provide for an equivalent right to a college
or university education.
Art. 13 § 1.

Okla. Const. Art. 1, § 5; Okla. Const.

Nevertheless, the Tenth Circuit has identified a

nursing student’s property interest in the continued enrollment in
an Oklahoma university nursing program.

Gossett v. Okla. ex rel.

Bd. of Regents for Langston Univ., 245 F.3d 1172, 1181 (10th Cir.
2001) citing Harris v. Blake, 798 F.2d 419, 422 (10th Cir. 1986).
Based upon this authority, this Court is required to conclude that
Plaintiffs possess the requisite property interest in continuing
their enrollment at SEOSU and, thus, a potential due process
claim.1
Defendants next contend that, based upon the facts on the face
of the Petition, Plaintiffs received all of the process to which
they were due and that the due process provided to them was
adequate

under

suspension.

the

current

state

of

the

law

prior

to

their

The viability of Plaintiffs’ due process claim under

1

The Tenth Circuit’s analysis in the Gossett decision did not
include a finding of an Oklahoma state law entitlement to continuing
education unlike the Colorado statute cited in Harris. While this Court
might agree with Defendants’ contention that no such state created
entitlement expressly exists in Oklahoma, this Court is bound by the
Tenth Circuit’s determination to the contrary.

4

Fed. R. Civ. P. 12(b)(6) requires an evaluation as to whether
Plaintiffs’

claim

failed

to

meet

the

plausibility

standard

enunciated in United States Supreme Court cases of Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556
U.S. 662 (2009).
Clearly, Bell Atlantic changed the legal analysis applicable
to dismissal motions filed under Fed. R. Civ. P. 12(b)(6), creating
a “refined standard” on such motions.

Khalik v. United Airlines,

671 F.3d 1188, 1191 (10th Cir. 2012)(citation omitted).

Bell

Atlantic stands for the summarized proposition that “[t]o survive
a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009) quoting Bell Atlantic, 550 U.S. at 570.

The Supreme Court

did not parse words when it stated in relation to the previous
standard that “a complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief” is “best forgotten as an incomplete, negative gloss
on an accepted pleading standard.”

Bell Atlantic,

550 U.S. at

546.
The Tenth Circuit has interpreted the plausibility standard as
referring “to the scope of the allegations in the complaint:

5

if

they are so general that they encompass a wide swath of conduct,
much of it innocent, then the plaintiffs ‘have not nudged their
claims across the line from conceivable to plausible.’” Robbins v.
Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008).

The Bell Atlantic

case, however, did not intend the end of the more lenient pleading
requirements of Fed. R. Civ. P. 8(a)(2). Khalik, 671 F.3d at 1191.
Rather, in Khalik, the Tenth Circuit recognized the United States
Supreme Court’s continued endorsement of Rule 8's “short and plain
statement” requirement in the case of Erickson v. Pardus, 551 U.S.
89 (2007) wherein the Supreme Court found “[s]pecific facts are not
necessary; the statement need only ‘give the defendant fair notice
of what the . . . claim is and the grounds upon which it rests.’”
Id. at 93.

Stated succinctly, the facts in the complaint must

sufficiently

support

all

elements

necessary

to

establish

entitlement to relief under the legal theory proposed by the
plaintiff.

Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir. 2007).

It is against this backdrop that the sufficiency of Plaintiffs’
original Petition is evaluated.
“[A] student facing expulsion or suspension from a public
educational institution is entitled to the protections of due
process.”

Gorman v. University of Rhode Island, 837 F.2d 7, 12

(1st Cir. 1988).

The process that is due is not the judicial model

of a civil or criminal trial. See Mathews v. Eldridge, 424 U.S.

6

319, 348 (1976); Nash v. Auburn University, 812 F.2d 655, 660 (11th
Cir. 1987).

Rather, due process requires advance notice of the

charges, a fair opportunity to be heard, and an impartial decisionmaker. See Goss v. Lopez, 419 U.S. 565, 579 (1975); Goldberg v.
Kelly, 397 U.S. 254, 271 (1970); Nash, 812 F.2d at 661-63, 665.
In this case, the Petition states Plaintiffs were (1) notified
of their alleged violation of the SCC; (2) aware of the potential
punishment for a violation of the particular section of the SCC;
(3) afforded a hearing before the Dean of Student Affairs; (4)
notified by the Dean of Student Affairs that they had violated a
particular section of the SCC; (5) notified by the Dean of Student
Affairs that they would be suspended for one academic year; (6)
afforded the opportunity for and availed themselves of an appeal of
the Dean’s decision to the Committee; (7) given a hearing before
the Committee; and (8) notified of the decision affirming the
Dean’s suspension decision. This procedure afforded Plaintiffs all
of the process that they were due and did not violate Plaintiffs’
constitutional rights.

Moreover, Plaintiffs’ contention that they

were entitled to an attorney to be present and act on their behalf
at the two hearings has no foundation in the law.
proceedings

do

not

rise

to

the

level

of

a

The suspension

legal

proceeding

entitling Plaintiffs to these rights guaranteed in criminal matters
by

the

Sixth

Amendment

of

the

7

Constitution.

As

a

result,

Defendants are entitled to the dismissal of Plaintiffs’ due process
claim.
Since the basis for federal jurisdiction lies in this action
in a federal question, no independent federal jurisdictional basis
remains for the determination of the remaining state law claim
asserted by Plaintiffs.
law

claim

based

Administrative

in

Supplemental jurisdiction over the state
an

alleged

Procedures

Act

is

violation
declined,

of
this

the

Oklahoma

Court

having

dismissed all claims over which it possesses original jurisdiction.
28 U.S.C. § 1367(c)(3).

The remaining claim will be remanded to

the District Court in and for Bryan County, Oklahoma for further
proceedings.

In so doing, this Court expresses no opinion on

Defendants’ assertion that the Administrative Procedures Act does
not apply to the facts in this case.
IT IS THEREFORE ORDERED that Plaintiff Jercolby Bradley’s pro
se Motion to Dismiss Without Prejudice (Docket Entry #14) is hereby
GRANTED.

All claims asserted by Plaintiff Bradley are hereby

DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss
(Docket Entry #15) is hereby GRANTED, in part, in that Plaintiffs’
claim based in a violation of their due process rights is hereby
DISMISSED. The remaining state law claim is hereby REMANDED to the

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District Court in and for Bryan County, Oklahoma for further
adjudication.
IT IS SO ORDERED this 28th day of April, 2014.

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