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Hess v. Board of Trustees of Southern Illinois University

United States Court of Appeals, Seventh Circuit

October 13, 2016

Nicholas Hess, Plain tiff-Appellant,
v.
The Board of Trustees of Southern Illinois University, et al., Defendants-Appellees.

          Argued September 15, 2016

         Appeal from the United States District Court for the Southern District of Illinois. No. 3:14-cv-00727 LJM - Larry J. McKinney, Judge."

          Before Flaum, Manion, and Hamilton, Circuit Judges. [*]

          Flaum, Circuit Judge.

         Nicholas Hess was suspended and later expelled from Southern Illinois University (SIU) after he was arrested for aggravated battery. Hess sued the Board of Trustees of the university, as well as several school administrators in their individual and official capacities, for violations of his procedural and substantive due-process rights. After dismissing some of the claims as barred by sovereign immunity, the district court awarded summary judgment to defendants on the remaining claims. We affirm.

         I. Background

         In the early morning of November 28, 2013, law-enforcement officials responded to a call about a bar fight in Marion, Illinois. Marion police officer Adam Byrne was one of the first to arrive at the scene. As he approached the bar, Byrne spotted one man chasing another across the parking lot. The latter individual ran to a parked car and was able to get in before the pursuer, not far behind, also reached the car and began punching at the driver's-side window. Byrne restrained the pursuer, and the man in the car drove away.

         The pursuer was Nicholas Hess, a student at SIU. Hess told Officer Byrne that a fight had broken out at the bar, so he and his brother, sister, and girlfriend had tried to leave the venue. Before they could do so, however, a man Hess recognized as Aaron Franks had hit Hess's sister in the face. Hess had then given chase, but claimed to have never made contact with Franks because Franks had jumped into his car. Hess's girlfriend and his siblings corroborated his story, though the sister did not have any injuries suggestive of facial trauma.

         The Marion Police Department sent an officer to speak with Aaron Franks, who had driven himself to a nearby hospital. Franks, it turned out, had been stabbed several times, and he gave to the police officer a physical description of the person Franks believed had attacked him. This description closely matched Hess's appearance on the morning in question, and Hess was taken into custody a short time later. After a second round of questioning-during which Hess gave the same account as he had previously-Hess was released. A few days later, however, he was charged with aggravated battery and a warrant was issued for his arrest on December 4, 2013. Hess turned himself in on December 9, and was released on bail later that day.

         News of the arrest soon reached SIU's Director of Student Rights and Responsibilities, Chad Trisler, who requested the relevant incident reports from the police department. After reviewing the reports, Trisler recommended to the acting Dean of Students, Katherine Sermersheim, that Hess be suspended from the university pending a hearing. Sermersheim concurred, and asked Trisler to issue the interim suspension.

         On December 11, 2013, SIU police officers told Hess to come to the campus police department to receive a letter. Hess went to the department with his mother, and Trisler met with them and explained that Hess was being suspended. Trisler also gave to Hess a written notice of suspension, which stated that Hess was being suspended from all university property and events in light of allegations from the Williamson County Sheriff's Department that he had stabbed someone several times during a bar fight. If Hess wished to appeal the suspension, the notice explained, he could ask for an interim appeal hearing, which would take place within two days of the request. Hess did not request an interim hearing, and, while suspended, he missed two final exams.

         On December 13, Hess received from Trisler a "charge and notification" letter, which listed the provisions of the SIU Student Conduct Code that school administrators believed Hess had violated during the bar incident. These alleged violations included: (1) intentional, negligent, or attempted homicide; (2) physical assault or abuse; (3) violent behavior; (4) "group actions" (defined in Section 2.3.6.2 of the Code as any incident in which a group of two or more persons engaged in violence, or the threat of violence, against an individual); (5) reckless disregard for the risk one's actions presented to others; (6) reckless conduct presenting a danger to property; (7) the possession, carrying, or use of any object intended for use as, or used as, a weapon; and (8) disorderly conduct. The letter instructed Hess to complete and return to SIU within five days an attached form, in which Hess could either admit his responsibility for the offenses charged, or deny his responsibility and request an administrative hearing. Hess requested a hearing, which was scheduled (in light of the winter holiday) for January 17, 2014.

         Four days before the January hearing, Hess received a letter explaining that Chad Trisler would be his assigned hearing officer, and that Hess could call as a witness any person who had been present at, or who otherwise had firsthand knowledge of, the events at issue. Hess decided to testify on his own behalf, but had little to say at the hearing, as his counsel-who was present as Hess's advisor throughout the proceeding-had instructed him not to answer any questions about what had happened at the bar. Hess's girlfriend testified that she, Hess, and his siblings had decided to leave the bar after another person had told them that someone there had a gun. It was in trying to exit that Hess had seen Aaron Franks (the stabbing victim) punch Hess's sister in the nose, and Hess had given chase. Up until that point, said the girlfriend, she and Hess had been holding hands.

         Officer Byrne also testified at the hearing. He described what he had seen after arriving at the bar-i.e., Hess chasing Franks across the parking lot-and what Hess (and, later, his girlfriend and siblings) had told Officer Byrne about Franks punching Hess's sister in the face. Byrne had then gone inside the bar to investigate, he explained, and had concluded that several "incidents of battery" had taken place there-though he did not believe Hess had participated in those fights.[1]Byrne testified that Franks had later described his attacker as resembling Hess, and that police officers had looked for evidence that Hess had had with him at the bar a knife or other weapon, but that no such evidence was found.

         Trisler nonetheless thought Franks's description was credible, and concluded that Hess was responsible for the stabbing. In a letter dated January 21, 2014, Trisler informed Hess of the decision to expel him from the university. The letter enumerated the seven sections of the Student Conduct Code that Trisler believed Hess had violated-oddly, only "use of a weapon" was dropped from the original list of eight alleged violations-and explained that Hess had three days in which to file an administrative appeal. Hess did so, and his appeal was considered by a three-member panel of SIU employees.

         The panel recommended that Trisler's decision be upheld, and the Chancellor of the university, Rita Cheng, agreed.

         Hess filed suit under 42 U.S.C. § 1983 against SIU's Board of Trustees, and Cheng, Sermersheim, and Trisler - each in their individual and official capacities-for violations of Hess's procedural and substantive due-process rights. According to Hess, he had a property interest in a continued education at SIU, as well as a liberty interest in his reputation with his instructors and fellow students (and in his ability to pursue additional education elsewhere), and defendants had unlawfully deprived him of those interests by: (1) suspending him without first affording him an opportunity to tell his side of the story; and (2) expelling him after conducting an unfair hearing. Hess requested money damages, as well as an injunction compelling both his readmission to the university and the opportunity for Hess to take his missed final exams.

         Defendants filed a motion to dismiss the complaint, arguing first that the official-capacity claims and claims against the Board for monetary relief were barred by the Eleventh Amendment, and, second, that the claims as a whole were inadequately pleaded. The motion to dismiss was still pending when the parties later cross-moved for summary judgment, so the district court resolved all three motions in the same opinion.

         The court granted the motion to dismiss insofar as it concerned the damages claims against the Board, and against the administrators as sued in their official capacities, as these were claims against the university. The university, reasoned the court, was not a "person" from whom money damages could be obtained under § 1983. The court then converted the remainder of the motion to dismiss into a motion for summary judgment, and ruled, in connection with the existing motions for summary judgment, in defendants' favor. Hess had established neither a protected property interest nor a protected liberty interest, said the court; and even if he had proven such an interest, defendants had in any event provided Hess with sufficient procedural protections in depriving him of it. The district court was similarly unconvinced of any substantive due-process violation.

         Hess now appeals the granting of defendants' summary-judgment motion. He does not challenge either the denial of his own summary-judgment motion or the court's ...


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