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Sussman v. Weber State University

United States District Court, D. Utah, Central Division

February 22, 2017



          TENA CAMPBELL U.S. District Court Judge.

         Pro se plaintiff Michael Sussman was a student at Weber State University in Ogden, Utah. But on January 6, 2012, the University expelled him and permanently barred him from campus (i.e., imposed what he refers to as “permanent criminal trespass status”[2]). In November 2016, Mr. Sussman filed his complaint under 42 U.S.C. § 1983 alleging that the University violated his procedural due process rights. He also alleges that the University slandered him.

         The University now moves for dismissal of Mr. Sussman's complaint with prejudice on the grounds that this court lacks subject matter jurisdiction and that Mr. Sussman has not stated a claim for which relief may be granted.

         Mr. Sussman's factual allegations are sparse and vague, but because Mr. Sussman is proceeding pro se, the court gives his complaint a liberal reading.[3] Even giving Mr. Sussman the benefit of the doubt, and taking all of his factual allegations as true, the court concludes that, as a matter of law, the University is entitled to dismissal.


         On January 6, 2012, the University's Dean of Students expelled Mr. Sussman “with no due process whatsoever . . . based on the percieved [sic] content of an academic assignment.” (Compl. at 2 (Docket No. 3).) Mr. Sussman characterizes the expulsion as retaliation, but he does not disclose the content of his academic assignment and no other allegations shed light on his assertion. (See id. at 3.) On the same day, the University imposed “permanent criminal trespass status [on him] with no due process whatsoever.” (Id. at 2.) As a result of those actions, he lost his on-campus computer access and his public transit pass.

         He alleges that he was then subjected to “continued harassment by Utah State Police[.]” (Id. at 4.) As an example, he writes that, “[w]hile on duty, in uniform and off campus, a Trevor Olson pointed at Plaintiff, laughed, and bragged of the torts the codefendants commited [sic].” (Id.) The court assumes that Trevor Olson is a member of the University Police Department, but Mr. Olsen is not a named defendant and there are no other allegations concerning him.

         Mr. Sussman also alleges that “[t]op officials at Weber State University slandered me.” (Id. at 5.) He does not name any of those top officials as defendants and does not identify them in his pleading. To support his slander claim, he asserts that “[o]fficial staff meetings were held to spread the rumor that there was a restraining order keeping [him] away from the volleyball team. The criminal trespass status convinced people this was true.” (Id.)

         He lists the injuries he has suffered as a result of the University's actions: “I have lost the benefits of being a Weber State University student. Lost benefits of computer labs and transit pass. Lost friends who were WSU course instructors. Starvation, and homeless for 2 years, 2 mos., & a week. Unable to attend volleyball matches.” (Id. at 5.) In his request for relief, he asks for ten million dollars in actual damages, ten million dollars in punitive damages, and “reversal of both expulsion and the permanent criminal trespass status.” (Id. at 6-7.)


         State universities (of which Weber State is one), are arms of the state rather than independent entities. Watson v. Univ. of Utah Med. Ctr., 75 F.3d 569, 575 (10th Cir. 1996) (holding that the public University of Utah is an arm of the state). Accordingly, although Mr. Sussman names the University as the Defendant, his suit is essentially against the State of Utah and the same defenses that apply to the State also apply to the University.

         Those defenses include sovereign immunity. Id. at 574. On that basis, the University brings its motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. The University also brings its motion under Federal Rule of Civil Procedure 12(b)(6), contending that Mr. Sussman has not alleged claims upon which relief may be granted as a matter of law because (1) the State of Utah is not a “person” for purposes of § 1983 and so Mr. Sussman has no remedy under that statute;[4] (2) the allegations do not meet the pleadings standards necessary to survive a motion to dismiss; (3) Mr. Sussman's § 1983 claims are barred by the four-year statute of limitations; and (4) his state law claim of slander is barred by the Governmental Immunity Act of Utah (GIAU) because he did not provide notice to the State of his claim and because the University has not waived its immunity under the GIAU for defamation claims.

         Standard of Review

         The University contends that the allegations on the face of Mr. Sussman's complaint do not establish subject matter jurisdiction and so the court must dismiss the action under Rule 12(b)(1) of the Federal Rules of Civil Procedure. When reviewing a challenge to jurisdiction, the court must accept all well-pleaded allegations of the complaint as true. Peterson v. Martinez, 707 F.3d 1197, 1206 (10th Cir. 2013). Mr. Sussman has the burden of ...

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