Scherer v. Curators of the University

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1676
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Thomas Scherer, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Curators of the University of Missouri * [UNPUBLISHED]
d/b/a UMKC School of Law, *
*
Appellee, *
*
Law School Admission Council, *
*
Defendant. *
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Submitted: October 28, 2002
Filed: October 31, 2002
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Before WOLLMAN, MORRIS SHEPPARD ARNOLD, and MELLOY, Circuit
Judges.
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PER CURIAM.
Thomas Scherer appeals the district court’s1 final judgment for defendants, as
well as several preliminary orders, in his action brought under the Americans with
1
The Honorable Dean Whipple, Chief Judge, United States District Court for
the Western District of Missouri.
Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213; section 504 of the Rehabilitation
Act of 1973, 29 U.S.C. § 794(a); an unspecified “Civil Rights Act”; and the Missouri
Sunshine Law, Mo. Rev. Stat. § 610.010 et seq.
Having carefully reviewed the record, we find that the district court properly
dismissed Scherer’s ADA claim against the Curators based on Eleventh Amendment
immunity, see Alsbrook v. City of Maumelle, 184 F.3d 999, 1010 (8th Cir. 1999) (en
banc) (Eleventh Amendment bars suits against state under Title II of ADA), cert.
dismissed, 529 U.S. 1001 (2000); see also Sherman v. Curators of the Univ. of Mo.,
871 F. Supp. 344, 348 (W.D. Mo. 1994) (holding that University of Missouri is state
instrumentality entitled to Eleventh Amendment immunity); that the district court
properly construed Scherer’s “Civil Rights Act” claim as brought under Title VI of
the Civil Rights Act, 42 U.S.C. § 2000d, and dismissed the claim because Scherer did
not state a claim under the statute, see 42 U.S.C. § 2000d (Title VI bars
discrimination based on race, color, or national origin); Briehl v. Gen. Motors Corp.,
172 F.3d 623, 627 (8th Cir. 1999) (complaint must at least contain facts that state
claim as a matter of law); and that the district court properly granted summary
judgment to the Curators on Scherer’s Rehabilitation Act claim, as Scherer admitted
that the Law School did not consider his disability in making its admission decision,
and he did not specify any accommodation the Law School should have provided
him, see Timothy H. v. Cedar Rapids Cmty. Sch. Dist., 178 F.3d 968, 971 (8th Cir.
1999) (elements of claim).
We further find that the district court did not ignore an equal-protection claim
or a claim under the Federal Educational Rights and Privacy Act, 20 U.S.C. § 1232g,
as Scherer did not allege either claim against the Curators. We lack jurisdiction to
consider an order entered in the United States District Court for the District of
Kansas, which transferred the case to the United States District Court for the Western
District of Missouri, see 28 U.S.C. § 1294(1); and from the denial of Scherer’s motion
brought under Federal Rule of Civil Procedure 60(b), as he did not file a notice of
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appeal or an amended notice of appeal after the district court denied the motion, see
Fed. R. App. P. 4(a)(4)(B)(ii); Miles v. Gen. Motors Corp., 262 F.3d 720, 722-23 &
n.3 (8th Cir. 2001). We find that the district court acted within its discretion in
declining to exercise supplemental jurisdiction over Scherer’s remaining claim under
the Missouri Sunshine Law, see 28 U.S.C. § 1367(c)(3); St. John v. Int’l Ass’n of
Machinists & Aerospace Workers, 139 F.3d 1214, 1216-17 (8th Cir. 1998), but we
clarify that the dismissal of the state claim is without prejudice. Finally, the district
court properly ruled that all pending motions were moot once the court had correctly
disposed of all of Scherer’s claims.
Accordingly, the judgment is affirmed, and all motions pending before this
court are denied.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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