United States District Court, C.D. Illinois, Peoria Division
Michael M. Mihm U.S. District Court Judge
matter is now before the Court on the Defendants' Bradley
University (“Bradley”), Laura Wallenfang
(“Wallanfang”), Dr. Cindy Brubaker
(Brubaker”), Dr. Peggy Flannigan
(“Flannigan”), Dr. Joan Sattler
(“Sattler”), and Dr. Kara Wolfe
(“Wolfe') (collectively “Defendants”)
combined Motion to Dismiss for Failure to State a Claim and
Motion for Lack of Jurisdiction pursuant to Federal Rules of
Civil Procedure 12(b)(6). (ECF No. 21). For reasons stated
herein, the Motion to Dismiss is GRANTED.
was a student in Bradley's nursing program. She was
enrolled in Nursing 317, a nursing practicum taught by
Wallenfang. After failing the practicum she was expelled from
the nursing program. She challenged her dismissal through the
grievance process but the decision was affirmed by the
Student Grievance Committee and the Provost.
February 5, 2018, Plaintiff, Natalie Urso
(“Plantiff”) filed an amended complaint against
Defendants. (ECF No. 19). Count I is to recover for
violations of 42 U.S.C. § 1983 and Count II claims that
Bradley University breached the contract they signed with
Plaintiff. Id. Defendants filed a Motion to Dismiss
for Failure to State a Claim and for the Court to Decline
Jurisdiction. (ECF No. 21). On March 1, 2018, Plaintiff filed
a response in opposition. (ECF No. 22). This matter is fully
briefed, and this Order follows.
under Federal Rule of Civil Procedure 12(b)(6) is proper if a
complaint fails to state a claim upon which relief can be
granted. Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
which when accepted as true, states a claim for relief that
is plausible on its face. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged. Id. (citing Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff's claim must “give enough details about
the subject matter of the case to present a story that holds
together” to be plausible. Swanson v. Citibank,
N.A., 614 F.3d 400, 404 (7th Cir. 2010). A
court must draw all inferences in favor of the non-moving
party. Bontkowski v. First Nat'l Bank of Cicero,
998 F.2d 459, 461 (7th Cir. 1993).
in the complaint must be sufficient to provide the defendant
with “fair notice” of the claim and its basis.
Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d
609, 622 (7th Cir. 2012). This means that (1)
“the complaint must describe the claim in sufficient
detail to give the defendant ‘fair notice of what the
… claim is and the grounds upon which it
rests'” and (2) its allegations must plausibly
suggest that the plaintiff has a right to relief, raising
that possibility above a “speculative level.”
EEOC v. Concentra Health Services, Inc., 496 F.3d
773, 776 (7th Cir. 2007).
evaluating a motion to dismiss, the Court must accept as true
all factual allegations in the complaint. Ashcroft,
556 U.S. at 678. However, the Court need not accept as true
the complaint's legal conclusions; “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. (citing Bell Atlantic Corp., 550 U.S.
at 555). Conclusory allegations are “not entitled to be
assumed true.” Ashcroft, 556 U.S. at 678
(citing Bell Atlantic Corp., 550 U.S. at 554-55).
alleges that the conduct surrounding her expulsion from the
Bradley Nursing Program violated her Due Process rights and
she is entitled relief under § 1983. Section 1983
provides a cause of action for “the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws” by any person acting “under color of
any statute, ordinance, regulation, custom, or usage, or any
State or Territory.” 42 U.S.C. § 1983. To
establish a claim under Section 1983, the Plaintiff must
allege (i) that the defendant has deprived plaintiff of a
federal right and (ii) the defendant acted under color of
state law. Gomez v. Toledo, 446 U.S. 635, 640
(1980). In considering whether a claim can be brought under
§ 1983, the important question to be answered is,
“is the alleged infringement of federal rights
“fairly attributable to the State?” Lugarv.
Edmondson Oil Co., 457 U.S. 922, 937 (1982).
main issue raised by the motion to dismiss is not whether the
Plaintiff was deprived of a federal right but instead whether
the actions by the Defendants can be considered state action.
To act ‘under color of state law, ' demands that
the defendant has exerted power “possessed by virtue of
state law and made possible only because the wrongdoer is
clothed with the authority of state law.” West v.
Atkins, 487 U.S. 42, 49 (U.S. 1988) citing United
States v. Classic, 313 U.S. 299, 326, (1941).
is no dispute that Bradley is a private, not-for-profit
corporation. (ECF No. 21 at 2; ECF No. 22 at 4). However,
Plaintiff claims that “Bradley's nursing program
has become so permeated with government character that its
actions are indeed the actions of the State of
Illinois…” and is therefore, ...