Wilson v. Wichita State University

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 12, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
BERTRAM L. WILSON, JR.,
Plaintiff - Appellant,
v. No. 17-3102
(D.C. No. 6:16-CV-01153-JTM-KGG)
WICHITA STATE UNIVERSITY; TED (D. Kan.)
AYERS, Wichita State University
employee; WADE ROBINSON, former
Vice President for Campus Life and
University Relations; ROBIN TIEMEYER,
Library Access Service Manager; PHILLIP
SHALITE, Officer; CODY HERL, Police
Captain,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges.
_________________________________
Bertram Wilson, Jr., proceeding pro se and in forma pauperis, appeals the
district court’s dismissal of his complaint alleging his constitutional rights were
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violated when he was ejected and excluded from a university library and campus.
We affirm.
I. BACKGROUND
Mr. Wilson’s claims arise from his March 11, 2014, ejection from the Wichita
State University library where he had conducted research for several years. He is an
alumnus of the University. His research card, necessary for extended research
periods, had expired. He claimed he had attempted to contact defendant Tiemeyer, a
librarian, several times but the research card was not reissued. Consequently,
defendants Shalite and Herl, University Police Department officers, ordered
Mr. Wilson to leave the library and campus on March 11, 2014, and again on March
17, 2014. The officers also issued him a trespass order, which defendant Ayers, a
University vice president, and defendant Robinson, an attorney for the University,
later affirmed in a letter to Mr. Wilson, citing a safety concern for students and
employees. Seeking an outside opinion on the University’s actions, Mr. Wilson
called the Clearwater, Kansas Police Department. In response, officers of the
Wichita Police Department came to his apartment, at least one with his gun drawn,
and searched him.
Mr. Wilson sued, asserting that Defendants had violated his constitutional
rights by failing to reissue the research card, ejecting him from the library and
campus, and issuing the trespass order. He generally claimed violations of the Fifth,
Sixth, and Fourteenth Amendments. He sought damages for psychological stress and
mental anguish, and he requested that the trespass order be rescinded.
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The district court initially dismissed the complaint sua sponte under 28 U.S.C.
§ 1915(e)(2) (providing for dismissal of a case filed in forma pauperis if the court
determines that the action fails to state a claim). Mr. Wilson appealed and this court
affirmed in part, reversed in part, and remanded. Wilson v. Wichita State Univ.,
662 F. App’x 626 (10th Cir. 2016) (Wilson I). We held that the complaint failed to
state an equal-protection claim based on Mr. Wilson’s allegation that he was treated
differently from other library patrons. Id. at 629. We then concluded that he should
be allowed “to amend his procedural-due-process allegations,” suggesting that he
“might be able to show that the [U]niversity has a policy on library usage that creates
a property interest.” Id. We indicated that “[i]f the [U]niversity’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) (holding that by creating a policy banning
only people who violated certain rules of conduct, the public bus authority had
constrained its own discretion and created a property interest in bus ridership)).
Therefore, we remanded for further proceedings.
On remand Mr. Wilson filed a Case Review and Update, which the district
court liberally construed as an amended complaint. In response to Defendants’
motion to dismiss, Mr. Wilson filed another Case Review and Update, which was
similar to the first. The district court granted dismissal pursuant to Fed. R. Civ. P.
12(b)(1) for lack of jurisdiction, holding that the University and the remaining
Defendants in their official capacities were entitled to Eleventh Amendment
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immunity. The court also invoked Fed. R. Civ. P. 12(b)(6) to hold that Mr. Wilson’s
filings failed to state a claim upon which relief can be granted, and therefore the
Defendants in their individual capacities were entitled to qualified immunity.
II. DISCUSSION
We liberally construe Mr. Wilson’s pro se filings. See Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however,
“take on the responsibility of serving as the litigant’s attorney in constructing
arguments and searching the record.” Id. Moreover, “pro se parties [must] follow
the same rules of procedure that govern other litigants.” Id. (internal quotation marks
omitted).
On appeal, Mr. Wilson does not challenge the district court’s ruling that the
University and the Defendants in their official capacities are immune from suit under
the Eleventh Amendment. Therefore, he has waived any official-capacity claims and
claims against the University. See Kabba v. Mukasey, 530 F.3d 1239, 1248 (10th Cir.
2008) (holding litigant waived issue on appeal by failing to present any argument
challenging the decision under review). Therefore, we address the claims against the
defendants in their individual capacities.
“This Court reviews de novo the district court’s decision on a motion to
dismiss under Fed. R. Civ. P. 12(b)(6) based on qualified immunity.” Denver Justice
& Peace Comm., Inc. v. City of Golden, 405 F.3d 923, 927 (10th Cir. 2005). When
reviewing a Rule 12(b)(6) dismissal, “[w]e accept as true all well-pleaded factual
allegations in the complaint and view them in the light most favorable to the
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plaintiff.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017)
(internal quotation marks omitted). We will affirm the dismissal if the complaint
does not “contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks omitted).
The district court held that Mr. Wilson’s complaint and amended complaint
failed to state a claim and granted qualified immunity to the Defendants in their
individual capacities. “The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal
quotation marks omitted). We conclude that the complaint and amended complaint
failed to state a claim for violation of clearly established constitutional rights.
In this appeal, Mr. Wilson attempts to renew his claim that Defendants
violated his equal-protection rights by treating him differently from other library
patrons. But in Wilson I, we held that such a claim requires a plausible showing that
the different treatment was based on “membership in [a] suspect class or the violation
of [a] fundamental right that would entitle him to a standard other than rational-basis
review,” a showing Mr. Wilson did not make in his original complaint. 662 F. App’x
at 629. Without such a showing, Mr. Wilson did not “overcome the presumption of
rationality.” Id. Further, we held that the University personnel “act[ed] within their
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proper role.” Id. Mr. Wilson did not attempt on remand to clarify or develop this
claim, so we affirm the dismissal.
Turning to the procedural-due-process claim, we conclude that on remand
Mr. Wilson did not plausibly “show that the [U]niversity has a policy on library
usage that creates a property interest,” Id. Rather than attempt to show the existence
of such a policy, Mr. Wilson alleged, without supporting facts:
For many years, one could research unobstructed and in privacy, at the
[University] library. A policy change was implemented, in a requirement,
for a research card, for extended periods of research, and limited by
expiration. The institution of this policy established a property interest that
facilitated arbitrary distinctions, as based on economic background,
standing and other attributes.
R. at 54. Mr. Wilson further alleged that the policy “was applied by arbitrary means” to
exclude library patrons whose beliefs were deemed to be contrary to those of the
University. Id. He asserted that the property interests were “evidenced in the uses of the
research card policy” and “became inordinate to the use of the facility.” Id.
These general, conclusory allegations are insufficient to state a due-process
claim. See Mocek v. City of Albuquerque, 813 F.3d 912, 921 (10th Cir. 2015) (stating
that when evaluating whether a complaint states a claim, we “disregard conclusory
statements and look only to whether the remaining, factual allegations plausibly
suggest the defendant is liable” (internal quotation marks omitted)). Mr. Wilson has
not alleged that the University has a “policy . . . to issue [research] cards unless
certain rules are violated” or any other “self-restriction on the University’s
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discretion.” Wilson I, 662 F. App’x at 629. Thus, he has not plausibly alleged a
procedural-due-process claim.
In the Case Reviews and Updates filed on remand, which the district court
construed as an amended complaint, Mr. Wilson alleged that his treatment by
Defendants violated the following rights in addition to due process:
rights to privacy, . . . to not be treated arbitrarily and unfairly, and to not be
discriminated against, and to be informed of the nature of any alleged
infraction, the rights to enter a public building, to pursue knowledge, the
rights not to be misrepresented, and subjected to an unsubstantiated trespass
order, and the right to a hearing on this matter.
R. at 54.
Mr. Wilson’s alleged rights to not be treated arbitrarily and unfairly, to be
informed of the nature of the alleged infraction, to not be misrepresented or subjected
to an unsubstantiated trespass order, and to a hearing, all appear to implicate
procedural due process. As we have held above, Mr. Wilson’s failure to allege facts
to show that he had a property interest in a research card is fatal to his due-process
claims. The alleged right to not be discriminated against may implicate equal
protection, a claim we have previously rejected.
As to the alleged rights to privacy, to enter a public building, and to pursue
knowledge, Mr. Wilson did not attempt on remand to clarify or develop these claims.
Therefore, as we found in Wilson I, the original complaint alleged claims only for
equal protection and due process. Moreover, a plaintiff cannot rely on “labels and
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conclusions, and a formulaic recitation of the elements of a cause of action” to
survive a motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).1
We hold that Mr. Wilson’s amended complaint failed to state a plausible claim
for relief on his claims that the Defendants in their individual capacities violated his
constitutional rights. To the extent his complaint and amended complaint attempted
to include claims against the Wichita Police Department or its personnel, we do not
address those claims because neither the police department nor its personnel were
named in the complaint.
III. CONCLUSION
The judgment is affirmed.
Entered for the Court
Timothy M. Tymkovich
Chief Judge
1
On appeal, Mr. Wilson claims Defendants violated his liberty interests
through “unbased exclusions and aggressive police action.” Aplt. Opening Br. at 7.
He does not, however, identify where he raised a liberty-interest claim in the district
court, and he does not argue for the application of plain-error review on appeal.
Therefore, the liberty-interest claim is waived. See Richison v. Ernest Grp., Inc.,
634 F.3d 1123, 1130-31 (10th Cir. 2011).
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