United States District Court, S.D. Illinois
[Copyrighted Material Omitted]
Nicholas Hess, Plaintiff: Darrell W. Dunham, LEAD ATTORNEY,
Law Offices of Darrell Dunham, Generally Admitted,
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.
ON CROSS MOTIONS FOR SUMMARY JUDGMENT
J. McKINNEY, UNITED STATES DISTRICT JUDGE.
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.
FACTUAL & PROCEDURAL BACKGROUND
24, 2014, Hess filed his Complaint in which he set forth four
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.
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.
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.
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.
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.
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
February 25, 2015, Hess filed a motion for summary judgment
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
Dkt. No. 30 at 2-3. On February 27, 2015, Defendants filed
their own Motion for Summary Judgment. Dkt. No. 32. Therein,
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.
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.
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.
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.
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.
December 4, 2013, Hess was charged with aggravated battery in
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
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.
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.
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.
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
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.
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
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.
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.
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 ...