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Hess v. Board of Trustees of Southern Illinois University

United States District Court, S.D. Illinois

December 9, 2015

THE BOARD OF TRUSTEES OF SOUTHERN ILLINOIS UNIVERSITY, CHAD TRISLER, individually and in his official capacity; KATHERINE SERMERSHEIM, individually and in her personal capacity; and RITA CHENG, individually and in her personal capacity, Defendants

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[Copyrighted Material Omitted]

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          For Nicholas Hess, Plaintiff: Darrell W. Dunham, LEAD ATTORNEY, Law Offices of Darrell Dunham, Generally Admitted, Carbondale, IL.

         For The Board of Trustees of Southern Illinois University, Chad Trisler, Individually and in his official capacity, Katherine L. Sermersheim, Individually and in her official capacity, Rita Cheng, Individually and in her official capacity, Defendants: Thomas H. Wilson, LEAD ATTORNEY, Jessica L. Galanos, HeplerBroom LLC - Springfield, Springfield, IL.

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         Plaintiff Nicholas Hess (" Hess" ) has moved for summary judgment on his claims against Defendants, The Board of Trustees of Southern Illinois University (" SIU" ), Chad Trisler individually and in his official capacity (" Trisler" ), Katherin Sermersheim, individually (" Sermersheim" ), and Rita Cheng, individually (" Cheng" ) (Defendants, collectively, " Defendants" ). Dkt. No. 31. Defendants have also moved for summary judgment on Hess' claims against them. Dkt. No. 32. Previously, Defendants filed a Motion to Dismiss that remains pending. Dkt. No. 27. For the reasons stated herein, the Court DENIES Hess' Motion for Summary Judgment; GRANTS Defendants' Motion for Summary Judgment and GRANTS in part and DENIES in part Defendants' Motion to Dismiss.



         On June 24, 2014, Hess filed his Complaint in which he set forth four claims for

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relief: Count I: Due Process; Count II: Breach of Contract; Count III: Breach of Duty of Good Faith and Fair Dealing; Count IV: Punitive Damages. Dkt. No. 5. On June 26, 2014, Hess filed his Amended Complaint again alleging the same four claims. Dkt. No. 6.

         On July 18, 2014, rather than filing an Answer, Defendants moved to dismiss the Amended Complaint. Dkt. No. 12. On August 18, 2014, Hess both moved to amend his Amended Complaint and responded to Defendants' Motion to Dismiss. Dkt. Nos. 18 & 19. On August 19, 2014, the Court granted Hess' Motion to Amend/Correct with leave to file his Second Amended Complaint instanter. Dkt. No. 20.

         On August 20, 2014, Hess filed his Second Amended Complaint in which he alleged the following claims: Count I: Due Process -- Property Interest; Count II: Liberty Interest; Count III: Punitive Damages. Dkt. No. 22. On August 22, 2014, the Court issued an order declaring Defendants' Motion to Dismiss moot in light of the filing of Hess' Second Amended Complaint. Dkt. No. 23.

         On September 3, 2014, the Court entered a Scheduling and Discovery Order that adopted the parties' Proposed Scheduling and Discovery Order, as modified (" Scheduling Order" ). Dkt. No. 26.

         On September 3, 2014, again, rather than filing an Answer, Defendants filed a motion to dismiss the Second Amended Complaint. Dkt. No. 27. Defendants claimed that Counts I and II should be dismissed under Rule 12(b)(1) of the Federal Rules of Civil Procedure (" Rule 12(b)(1)" ) as against the Board of Trustees because such claims were barred by the Eleventh Amendment. Id. at 2. Defendants further argued that Hess' Second Amended Complaint failed to plead facts to establish that he had either a property or a liberty interest that entitled him to any due process and that his allegations did not meet the pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Dkt. No. 27 at 2-3. Defendants also presented a qualified immunity argument asserting that the law entitling Hess to the relief he seeks was not clearly established. Id. at 3.

         Hess filed his response on September 18, 2014, asserting that he had a protected property interest in continuing his education, which he claimed was created by a contract between himself and SIU under Illinois common law. Dkt. No. 29 at 4-10. He also alleges a liberty interest and asserts that it entitled him to due process before being expelled before misconduct. Id. at 10-13. Hess further claimed that the law clearly protected his rights; therefore, Defendants were not entitled to qualified immunity. Id. at 13-17.

         On February 25, 2015, Hess filed a motion for summary judgment stating

that there is no triable issue of fact as to liability as to the following claims: A) Plaintiff's Claim that his [sic] was not granted a predetermination hearing prior his [sic] suspension on December 11, 2013; B) That he was denied due process because, Defendant Trisler, who conduct his expulsion hearing, had prejudged his case, was biased against him, and Trisler thereby deprived Hess of a hearing before a neutral fact-finder; C) That Hess was denied substantive due process in that the evidence used to justify his expulsion was so attenuated and wanting in probative value and credibility that it shocks the conscience that Hess was expelled by [the University].

Dkt. No. 30 at 2-3. On February 27, 2015, Defendants filed their own Motion for Summary Judgment. Dkt. No. 32. Therein,

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Defendants claimed that the undisputed evidence entitled them to judgment as a matter of law on all counts in Hess' Second Amended Complaint. Id. at 1-3. Defendants contended that Hess does not have a property or liberty interest that entitled him to procedural due process because " [s]uch entitlement to post-secondary education does not exist independently of a contractual entitlement, and [Hess] has neither alleged nor established such an entitlement based on the undisputed record." Id. at 2.

         On March 30, 2015, Defendants responded to Hess' Motion for Summary Judgment. Dkt. No. 33. Defendants reiterated their argument that, on the undisputed evidence, Hess could not show that he had a property interest in his continuing college education. Id. at 4-7. Defendants also asserted that Hess failed to evidence any deprivation of a liberty interest. Id. at 15-16.

         On April 2, 2015, Hess filed his response to Defendant's Motion for Summary Judgment. Dkt. No. 34. Hess argued that he had adequately evidenced and/or alleged that SIU had breached a contract with him such that he had a protectable property and/or liberty interest, which was created under Illinois State law. Id. at 4-5.


         In the early morning hours of November 28, 2013, the Marion, Illinois, police responded to a fight in progress at the Just One More Bar & Grill. Pl.'s Ex. 1. The officer who arrived first witnessed Hess chase a man across a parking lot and then punch the window of the man's vehicle. Id. Hess was subdued and detained for questioning, along with Hess' girlfriend, brother and sister. Id. Hess' companions claimed that the man Hess had been chasing had " wrestled" with Hess' brother and punched Hess' sister in the face. Id. Hess' sister had no visible injuries. Id. After a brief period, Hess and his companions were released from the scene by the police. Id.

         After Hess left, the police learned that the chased man, Aaron Franks (" Franks" ), had driven himself to the local hospital where he presented to the emergency room with multiple stab wounds. Id. Upon questioning, Franks gave a physical description for and described the clothing of the person who stabbed him. Id. The description matched that of Hess. Id. Hess admits that the description was " close" to his own. Hess Dep. at 69-70. Other men inside the bar who admitted to being involved in an altercation with Franks had blood on them; this information was in the police report regarding the incident at the Just One More Bar & Grill. Pl.'s Ex. 1.

         On December 4, 2013, Hess was charged with aggravated battery in Williamson

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County, Illinois, and a warrant issued for his arrest. Defs.' Exs. 1 & 2. Hess surrendered on December 9, 2013, and was released on bail later that day. Hess Dep. at 18-19.

         Hess testified that before the events on November 28, 2013, at the Just One More Bar & Grill, he knew Franks, but had no prior issues or problems with him. Id. at 65.

         On December 10, 2013, Trisler, Director of Student Rights and Responsibilities at SIU, learned that Hess had been arrested for allegedly stabbing a non-student during a bar fight. Pl.'s Ex. 29 at 3; Defs.' Ex. 16, Trisler Decl. ¶ 4. The next day, Trisler obtained and reviewed the police reports that described the officer's observations of Hess assaulting Franks and Franks' injuries and description of his assailant. Defs.' Ex. 16, Trisler Decl. ¶ 5; Pl.'s Ex. 29 at 3.

         The SIU Student Conduct Code (" Conduct Code" ) provides:

If the Dean of Students, or designee, has reasonable cause to believe a student poses a serious and direct threat to the safety or well-being of one or more members of the campus community, or to the continued effective operation of the university, an interim action may be imposed to mitigate or remove the threat. Any interim action is temporary and shall only be enforced until the completion of adjudication.

Pl.'s Ex. 27, at 14, § 3.1.

         Based on the information provided to him by the Marion police department, Trisler contacted Sermersheim, SIU Interim Dean of Students, and recommended that an interim suspension be issued for Hess, pending a hearing on the matter. Pl.'s Ex. 29, at 3. Sermersheim agreed with Trisler's recommendation and issued the Interim Suspension the same day. Id.

         On December 11, 2013, the SIU police department contacted Hess by telephone and told him that he need to come to the department to receive a letter. Hess Dep. at 19-20. At the police station, Hess and his mother met with an SIU police officer and Trisler. Id. at 24. Trisler introduced himself to Hess and his mother and explained that the letter to Hess was a Notice of Interim Suspension. Id. at 24. The Notice advised Hess that SIU had received information that he was " alleged to have stabbed an individual several times in the course of a bar fight," and prohibited Hess from being present on SIU property or at SIU events until the interim suspension was lifted by the Dean of Students or through the Student Conduct Process. Id. at 24; Defs.' Ex. 5. The Notice was issued despite the fact that no one at SIU had asked Hess for his side of the story. Hess Dep. at 24-25.

         Trisler did not raise his voice or use profanity during the meeting with Hess and his mother, and he did not comment on whether he believed that Hess was guilty aside from delivering the notice of interim suspension. Hess Dep. at 37-38. Hess did not know Trisler prior to the events at issue and never had any prior disciplinary problems at SIU. Hess Dep. at 35. Hess does not know Trisler outside SIU and is unaware of any relationship Trisler had with the stabbing victim, Franks. Hess Dep. at 35-36. According to Hess, he asked Trisler why SIU was suspending him without hearing his side of the story, to which Trisler replied, " The University has not made a decision." Hess Dep. at 24 -25. Hess testified that throughout the encounter, Trisler was smiling, which prompted Hess to call Trisler a " smug prick." Hess Dep. at 24-25. Hess' mother questioned Trisler about whether SIU would treat " star athletes" the same way and asked Trisler why he was smiling. Hess Dep. at 25. When Trisler responded that everyone is treated the same, Hess' mother replied, " [B]ullshit." Susan Hess Dep. at 14. Further, Hess' mother called

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Trisler a liar. Id. Hess' mother also asked whether or not Hess could take his finals, to which Trisler responded in the negative. Id. at 18.

         Trisler explained that in the course of his career at SIU he has delivered 150-200 Notices of Interim Suspension to students and described this one as " not particularly memorable." Trisler Dep. at 144-45. By that, Trisler meant that, when receiving such notices, students are frequently upset, if the student's family is present they are also upset, the students receiving such notices are often being investigated for criminal actions and to sum it up: " They're not having a good night." Id. Trissler explained, " It's not unusual for people to be angry. It's not unusual for there to be foul language. It's not unusual for me to be threatened. It's just the course of doing business when we're delivering interim letters usually in the middle of the night." Id. at 145.

         Trisler testified that after having delivering the interim notice he had not formed any conclusions as to Hess' responsibility or guilt and did not carry any biases ...

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