John Doe v. Univ. of Neb., 4:18CV3142

• Court: United States District Courts. 8th Circuit. United States District Court of Nebraska
• Writing for the Court: Richard G. Kopf, Senior United States District Judge
• Citation: 451 F.Supp.3d 1062
• Parties: John DOE, Plaintiff, v. UNIVERSITY OF NEBRASKA, University of Nebraska Board of Regents, Jake Johnson, Laurie Bellows, Meagan Counley, and Toni Anaya, Defendants.
• Docket Number: 4:18CV3142
• Decision Date: 03 April 2020

451 F.Supp.3d 1062

John DOE, Plaintiff,
v.
UNIVERSITY OF NEBRASKA, University of Nebraska Board of Regents, Jake Johnson, Laurie Bellows, Meagan Counley, and Toni Anaya, Defendants.

4:18CV3142

United States District Court, D. Nebraska.

Signed April 3, 2020

451 F.Supp.3d 1072

Matthew J. Donnelly, Pro Hac Vice, Petefish, Immel Law Firm, Lawrence, KS, Roger D. Moore, Rehm, Bennett Law Firm, Lincoln, NE, for Plaintiff.

Bren H. Chambers, University of Nebraska, Lily Amare, Susan K. Sapp, Cline, Williams Law Firm, Lincoln, NE, for Defendants.

MEMORANDUM AND ORDER

Richard G. Kopf, Senior United States District Judge

This matter is before the court on Defendants’ motion for partial summary judgment, which seeks dismissal of a § 1983 claim alleged in Count VI of Plaintiff's Amended Complaint. Defendants assert the claim "is barred by qualified, absolute, quasi-judicial and sovereign immunity, and on the merits for lack of a genuine issue of material fact." (Filing No. 39, p. 1.) For the reasons discussed below, the motion will be granted and Count VI will be dismissed with prejudice.

I. BACKGROUND

Plaintiff, suing under the anonym of John Doe, was a Ph.D. student in the Political Science Department at the University of Nebraska–Lincoln ("UNL"), from August 2015 until May 2018, when he was expelled for violating the student code of conduct. Specifically, it was determined that Plaintiff sexually assaulted another UNL student ("Jane Roe") on July 24, 2017. Defendants include the University and the Board of Regents, plus four UNL employees who are each sued in their individual and official capacities: (1) Jake Johnson, Assistant Vice Chancellor for Student Affairs; (2) Laurie Bellows, Interim Vice Chancellor of Student Affairs; (3) Meagan Counley, Deputy Title IX Coordinator and Investigator; and (4) Toni Anaya, Associate Professor and Chair of the University Student Conduct Board.

The Amended Complaint contains six counts or claims: Count I is a Title IX claim which is brought against UNL; Counts II through V are state-law claims (for breach of contract, breach of good faith and fair dealing, estoppel, and review under the Nebraska Administrative Procedure Act) which are brought against UNL and the Board of Regents; and Count VI is a § 1983 claim which is brought against the four UNL employees for alleged violations of Plaintiff's procedural and substantive due process rights. Count VI is the only claim that is challenged by Defendants’ pending motion.¹

In Count VI, Plaintiff alleges he "had a constitutionally protected property interest in his status as a student at UNL" and was deprived of this right "without being afforded the minimum level of due process required in the conduct of the investigation,

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administrative hearing, and subsequent appeal to UNL." (Filing No. 25, ¶¶ 205-08.) It is further alleged that "Defendants Johnson, Counley, Anaya, and Bellows acted under color of state law, and knew or reasonably should have known, that Plaintiff would be deprived of his rights under the Fourteenth Amendment and § 1983 when they acted arbitrarily and without a rational basis, thus denying Plaintiff his right to substantive due process." (Ibid. , ¶ 209.) For relief, Plaintiff requests monetary damages and reinstatement as a student at UNL. (Ibid. , p. 41.)

II. SUMMARY JUDGMENT STANDARD

"A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. 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. The court should state on the record the reasons for granting or denying the motion." Fed. R. Civ. P. 56(a).

In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of all inferences that may be reasonably drawn from the evidence. See Dancy v. Hyster Co. , 127 F.3d 649, 652-53 (8th Cir. 1997). It is not the court's function to weigh evidence in the summary judgment record to determine the truth of any factual issue; the court merely determines whether there is evidence creating a genuine issue for trial. See Bell v. Conopco, Inc. , 186 F.3d 1099, 1101 (8th Cir. 1999).

The moving party bears the initial responsibility of informing the court of the basis for the motion, and must identify those portions of the record which the moving party believes show the lack of a genuine issue of material fact. Torgerson v. City of Rochester , 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the moving party does so, the burden then shifts to the nonmoving party, who "may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, summary judgment should be granted. Smith-Bunge v. Wisconsin Cent., Ltd., 946 F.3d 420, 424 (8th Cir. 2019).

III. SUMMARY JUDGMENT PROCEDURE

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).

This court's local rules further specify that "[t]he moving party must include in the brief in support of the summary judgment motion a separate statement of material facts," which "should consist of short numbered paragraphs, each containing pinpoint references to affidavits, pleadings, discovery responses, deposition

451 F.Supp.3d 1074

testimony (by page and line), or other materials that support the material facts stated in the paragraph." NECivR 56.1(a) (underlining in original). "The statement must not contain legal conclusions." Id. The opposing party's brief must include "a concise response to the moving party's statement of material facts." NECivR 56.1(b)(1). "Each material fact in the response must be set forth in a separate numbered paragraph, must include pinpoint references to affidavits, pleadings, discovery responses, deposition testimony (by page and line), or other materials upon which the opposing party relies, and, if applicable, must state the number of the paragraph in the movant's statement of material facts that is disputed." Id. The moving party may, but is not required, to reply to the opposing party's response. See Metro. Prop. & Cas. Ins. Co. v. Westport Ins. Corp. , 131 F. Supp. 3d 888, 892 n. 2 (D. Neb. 2015).

A party's failure to comply with these requirements can have serious consequences: The moving party's "[f]ailure to submit a statement of facts" or "[f]ailure to provide citations to the exact locations in the record supporting the factual allegations may be grounds to deny the motion for summary judgment." NECivR 56.1(1)(a) (underlining omitted). On the other hand, "[p]roperly referenced material facts in the movant's statement are considered admitted unless controverted in the opposing party's response." NECivR 56.1(1)(b)(1) (underlining omitted).

IV. EVIDENCE PRESENTED

In this case, Defendants’ brief in support of their motion for partial summary judgment contains a separate, 153-paragraph statement of material facts with proper references to the record. (Filing No. 41, pp. 4-38.) Defendants have also filed the following evidentiary materials:

• Affidavit of Lily Amare (Filing No. 41-1), with attachments:

• Exhibit A (Filing No. 41-2): Excerpts from the Transcript of recording of the pre-hearing conference held on May 16, 2018 ("Ex. A, May 16 Transcript")

• Exhibit B (Filing No. 41-3): Transcript of recording of the pre-hearing conference held on May 25, 2018 ("Ex. B, May 25 Transcript")

• Exhibit C (Filing No. 41-4): Transcript of recording of the hearing held on May 31, 2018 ("Ex. C, May 31 Transcript")

• Exhibit D (Filing No. 41-5): Transcript of a recording of a telephone conversation between Plaintiff and Jane Roe ("Ex. D, Phone Transcript")

• Affidavit of Megan Counley (Filing No. 41-6), with attachments:

• Exhibit E (Filing No. 41-7): Student Code of Conduct ("Ex. E, Student Code of Conduct")

• Exhibit F (Filing No. 41-8): November 28, 2017 Letter from Counley to Jane Roe ("Ex. F, November 28 Letter")

• Exhibit G (Filing No. 41-9): December 21, 2017 Letter from Counley to Plaintiff ("Ex. G, December 21 Letter")

• Exhibit H (Filing No. 41-10): January 8, 2018 Letter from Counley to Plaintiff ("Ex. H, January 8 Letter")

• Exhibit I (Filing No. 41-11): Investigation Report ("Ex. I, Investigation Report")

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