United States District Court, D. Kansas
Bertram L. Wilson, Jr., Plaintiff,
Wichita State University, et al ., Defendants.
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
being ejected from the Wichita State University library,
plaintiff Bertram Wilson brought this lawsuit against WSU,
its Vice President for Student Affairs, a librarian, two WSU
police officers, and the General Counsel of the university.
WSU requires that former students, such as Wilson, have a
current research card to enter the library. Wilson alleges
that after his card expired, officers removed him from the
library on March 11, 2014. He was again excluded three days
later, and alleges that a no-trespass order was issued.
Wilson complains the librarian did not respond to his emails
about the research card, and that WSU's general counsel
subsequently sent him a letter indicating he agreed with the
no-trespass order. Wilson's May 26, 2016 pro se
complaint seeks $5 million in damages for the alleged
psychological stress and mental anguish caused by his
ejection from the library. Adopting the Report and
Recommendation issued by the Magistrate Judge, the court on
July 27, 2016 dismissed the complaint for failure to state a
appeal, the Tenth Circuit found that Wilson's Complaint
presented two potential Fourteenth Amendment claims - an
equal protection claim that he had been treated differently
from other library patrons, and a procedural due process
claim for failing to reissue his card. As to the former, the
court agreed that “Wilson states no viable equal
protection claim” (Dkt. 16, at 4). The court noted the
university setting, and observed that “[i]n the context
of equal-protection claims, university officials act within
their proper role in making policies protecting the safety of
students, faculty, or other citizens.” (Dkt. 16, at 5).
However, the court could not conclude that
allowing Wilson to amend his procedural-due-process
allegations would be futile. Wilson might be able to show
that the university has a policy on library usage that
creates a property interest. If the university'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), the court observed that a property
interest may arise “[i]f regulations mandate a certain
result so long as certain rules are followed.”
remand, Wilson has failed to file any amended complaint. He
did file a “Case Review and Update.” (Dkt. 30.).
In this document, Wilson writes that WSU's research card
facilitated arbitrary distinctions, as based on economic
background, standing and other attributes, through decisions
to issue and reissue or not and when to do this, the policy
was applied by arbitrary means, to differentiate, instigate
problems, and exclude from the premises, a library patron
felt to be in contrast to property and material interests of
the university, and to hold related beliefs, the property
interests, (evidenced in the user of the research policy),
became inordinate to the use of the facility for study and
research as a public institution.
Id. at 2.
defendants subsequently moved to dismiss the action, arguing
that WSU and its agents operating in their official capacity
are protected from liability by the Eleventh Amendment. To
the extent Wilson might be seeking recovery against the named
defendants for actions in their individual capacities, the
defendants argue that they are qualifiedly
then filed another “Case Review and Update” (Dkt.
36, at 2) which essentially repeats his earlier pleading of
the same name, adding only that the defendants' motion is
“based on unsubstantiated premises, ” and that
the defendants have not provided “any evidence of
infraction by the plaintiff.”
court will grant the Motion to Dismiss. The plaintiff's
Case Updates have done nothing to allege that the University
requires that its librarians issue research cards except
where an applicant has violated University rules, or
otherwise constrained their discretion. See Brown v.
Eppler, 725 F.3d at 1226-27 (“when analyzing
whether a protected interest exists, [the court] focuses on
whether there are ‘specific directives to the
decisionmaker that if the regulations' substantive
predicates are present, a particular outcome must
follow'” (quoting and adding emphasis to Ky.
Dep't of Corr. v. Thompson, 490 U.S. 454, 463
(1989))). Wilson's allegations simply repeat formulaic
allegations of an arbitrary denial of library card
privileges, coupled with repetition of his dismissed equal
protection claim that the policy permits denials based on
“economic background, standing and other
a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need 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.” Bell Atlantic v. Twombly, 550
U.S. 544, 555 (2007) (quotations and citations omitted). And
the generous construction to be given the pro se
litigant's allegations “does not relieve the
plaintiff of the burden of alleging sufficient facts on which
a recognized legal claim could be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court
need not accept “mere conclusions characterizing
pleaded facts, ” Bryson v. City of Edmond, 905
F.2d 1386, 1390 (10th Cir. 1990), and “will not supply
additional factual allegations to round out a plaintiff's
complaint or construct a legal theory on a plaintiff's
behalf.” Whitney v. New Mexico, 113 F.3d 1170,
1173-74 (10th Cir. 1997).
assuming Wilson presented a claim for deprivation of due
process, he has provided no response to the defendants'
arguments presented in their motion to dismiss. Wilson's
claims against the university and its agents acting in their
official capacities are barred by the Eleventh Amendment.
See Edelman v. Jordan, 415 U.S. 651, 663 (1974),
Pennhurst State School & Hospital v. Halderman,
465 U.S. 89 (1984); Isham v. Wilcox, 2001 WL 505235,
at *1 (10th Cir. May 14, 2001). To the extent he advances
claims against the named defendants in their individual
capacities, those defendants enjoy qualified immunity for
their actions in removing Wilson. See Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). And to the extent
Wilson seeks revocation of the no-trespass order, the
defendants argue that the order expired on March 17, 2016,
before he filed the present action, and the matter is thus
moot. Wilson has failed make many response at all to
defendants' arguments, which the court grants for good
cause shown and pursuant to D.Kan.R. 7.4.
ACCORDINGLY ORDERED this 13th day of April, 2017, that the
defendants' Motion to ...