United States District Court, D. Utah, Central Division
MICHAEL C. SUSSMAN, Plaintiff,
WEBER STATE UNIVERSITY, and the UTAH STATE POLICE,  Defendants.
ORDER AND MEMORANDUM DECISION
CAMPBELL U.S. District Court Judge.
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”). 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.
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.
Sussman's factual allegations are sparse and vague, but
because Mr. Sussman is proceeding pro se, the court gives his
complaint a liberal reading. 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.
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.
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.
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
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.)
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.
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; (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.
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 ...