# Opposition Brief — Core Communications, Inc. v. Federal Communications Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2010
- **Citation:** 562 U.S. 1044

## Text

No. 10-785

Jn the Supreme Court of the Anited States

MEGAN KRAINSKI,
Petitioner,
Vi

NEVADA, EX REL. BOARD OF REGENTS OF THE NEVADA SYSTEM
OF HIGHER EDUCATION, ON BEHALF OF THE UNIVERSITY OF
NeEvabaA, LaS VEGAS, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit

BRIEF IN OPPOSITION

February 14, 2011

SUSAN CARRASCO O’BRIEN
Counsel of Record
ASSISTANT GENERAL COUNSEL
UNIVERSITY OF Nevapa, Las VEGAS
4505 MarRYLAND Parkway, Box 41085
Las Vecas, Nevapa 89154-1085
Pur#: (702) 895-5185
Susan.OBrien@unlv.edu

Attorneys for Respondents State of
Nevada ex. rel. Board of Regents of the
Nevada System of Higher Education on
behalf of the University of Nevada, Las
Vegas; Rebecca Mills; Richard Clark;
Phillip Burns; Nannette Jimenez; Tyree
Pint; Officer L. Tramposch; Officer B.
Gott; Officer J. Culver; Susan M.
Carrasco; and Leslie Wallenfeldt

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

i

QUESTIONS PRESENTED

: Whether Petitioner, as the plaintiff in District
Court, pled only bare assertions and conclusory
allegations, resulting in a failure to state a claim upon
which relief could be granted in accordance with this
Court’s standard of review established in Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955
(2007) and Ashcroft v. Igbal,_ —=5 =S5U.S. 129 S.. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009).

I]. Whether Petitioner, as the plaintiff in District
Court, pled factual matter that, if taken as true, states
a claim that Respondents, in their individual
capacities, deprived her of a clearly established
constitutional right?

lil. Whether Petitioner's failure to properly raise
the issue of leave to amend before the District Court
and more significantly, failure to actually set forth any
facts which might support a leave to amend,
warranted denial of leave to amend.

il

LIST OF PARTIES

Petitioner has accurately presented a list of all
parties to the proceeding in the court whose judgment
is under review and, as such, Respondents incorporate
Petitioner’s Rule 14.1(b) Statement. (Petitioner’s
Petition for Writ of Certiorari, hereinafter referred to
as “Pet” or “Petition” p.1i).

ill

TABLE OF CONTENTS
QUESTIONS PRESENTED ..................

Lee GE CRIMI 6-6 65 des ooo ke hd Oe ee

TAILLE OF COVINT 0G on nc cece canenwe aves il

py Oe tk wip yt ey rare

CITATIONS OF OFFICIAL/UNOFFICIAL
REPORTS OF OPINIONS AND ORDERS
ENTERED IN THE CASE BY COURTS .....

CONCISE STATEMENT OF BASIS FOR
COE ik a ke one ee ee

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED ................

I. STATEMENT OF THE CASE ..............
Il. THE OPINIONS BELOW .................
Ms eee er err ry ee

THE COURT OF APPEALS CORRECTLY
CONCLUDED THAT THE DISTRICT
COURT’S DECISION TO _ DISMISS
PETITIONER’S COMPLAINT BASED UPON
BELL ATL. CORP. V. TROWMBLY AND
ASHCROFT V. IQBAL, AS WELL AS
PRINCIPLES OF QUALIFIED IMMUNITY,
WAS NOT CONTRARY TO OR AN
UNREASONABLE APPLICATION OF
CLEARLY ESTABLISHED FEDERAL LAW

8

iV

A. The Ninth Circuit Court of Appeals Majority

Correctly Applied Governing U.S. Supreme
Court Pleading Standards ..............

B. The Ninth Circuit Court of Appeals Majority

Correctly Applied Governing U.S. Supreme
Court Qualified Immunity Principles ..

C. The Ninth Circuit Court of Appeals Majority

Correctly Determined Petitioner Failed to
Set Forth New Facts Before the District
Court, and for that matter, the Ninth
Circuit, Which Petitioner Could Include in
her Complaint to Overcome its Fatal
Re ele th a hy SE ee

Oe. PEE ek ey ht ey pace
APPENDIX

Appendix A: Complaint, United States

District, District of Nevada
Le 2, Oe) a oe er a AS

Appendix B: Opposition to Defendants Motion

to Dismiss Plaintiffs Complaint,
United States District Court,
District of Nevada

12

1b

oO a) en eae 23b

V

Appendix C: Reporter’s Transcript of
Proceedings, United Siates
District Court, District of
Nevada, The Honorable James C.
Mahan, Judge Presiding
(October 14, 2008) .......... 68b

vl

TABLE OF AUTHORITIES

CASES

Anderson v. Creighton,
438 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523
ee a aa wad Wve 6s x se ©0400 0 13

Ashcroft v. Igbal,
US. , 129 S. Ct. 1937, 173 L. Ed. 2d
ES En a passim

Beck v. Ohio,
379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 2d 142
es sc ek cde bee 13

Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955 (2007) .... passim

Foman v. Davis,
371 U.S. 178, 83 S. Ct. 227, 9 L. Ed. 2d 222
ed in a wba ees ees 15

Harlow v. Fitzgerald,
457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396
a, IS 12

Henry v. United States,
361 U.S. 98, 80 S. Ct. 168, 4 L. Ed. 2d 134
ee es Gk we se 13

Hope v. Pelzer,
536 U.S. 730, 122 S. Ct. 2508, 153 L. Ed. 2d 666
ee cia eke ns cece ns 13

Vil

Hunter v. Bryant,
502 U.S. 224, 112 S. Ct. 534, 116 L. Ed. 2d 589
(1901) (per euriam) ...........222.55- 11, 14

Krainski v. NSHE et al.,
616 F.3d 963 (9th Cir. 2010) ........... passim

Lemmons v. Georgetown Univ. Hosp.,
241 F.R.D. 15, 100 Fair Empl. Prac. Cas. (BNA)
563, 89 Empl. Prac. Dec. (CCH) P 42,777
ES. CO Ce ae re Leas ah 16

Mitchell v. Forsyth,
472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411
EN ah ora rae wane te eres atta es 12

Monell v. Dep't of Social Servs. of N.Y.,
436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611
Rats trie er eee vat at dun oa 5

Pearson v. Callahan,
555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565
I MS cae ea he, 7, 12, 13, 14

Romero v. Wilson Elementary Sch. Distr. No. 7,
No. CV 05-2231-PHX-MHM, 2006 U.S. Dist.
LEXIS 57652, 2006 WL 2374844 (D. Ariz. Aug.
SC Sy ee ee ee 16

Saucier v. Katz,
533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272
sk PERN ane hae ai heedng Pam Se Ae Be AT Ac edna atl Rat tae 12

Thomas v. R.I.,
542 F.3d 944, 71 Fed. R. Serv. 3d 944 (1st Cir.
re aan ce ia ee ee ee ele 16

Vill

United States v. 3 Parcels in La Plata Cnty.,
919 F. Supp. 1449, 1995 U.S. Dist. LEXIS 20664

(DD. TOW Re 6 bs neo ose 17
United States ex. rel. Lee v. Fairview Health Sys.,

413 F.3d 748 (8th Cir. 2005) .............. 16
CONSTITUTION
U.S. Comet. amend. f¥ . 56... «shee ae passim
STATUTES
42 UA. § 30S one 0 5 eee 1,12
RULES
Fed. R. Gv. ? 7D) ...n eee 15, 16
Fed. BR. Caw. P. MONS) 26 oe eee 9
Fed. BR. Civ. F: Mia) .. 2.35 eee 15
Local Rate 16-1) 6.26 oe nce ee eee ee 3
OTHER AUTHORITIES

5 Charles Alan Wright et al., Federal Practice and
Procedure §§1191& 1192 (3d ed. 2004) ..... 16

6 Charles Alan Wright et al., Federal Practice and
Procedure §§1473 & 1483 (3d ed. 2010) ..... 15

l

CITATIONS OF OFFICIAL/UNOFFICIAL
REPORTS OF OPINIONS AND
OKDERS ENTERED IN THE
CASE BY COURTS

Petitioner has accurately presented the citations of
the official and unofficial reports of all opinions and
orders entered in this case by courts and
administrative agencies and, as such, Respondents
incorporate Petitioner's “Opinions Below” Statement.
(Pet. p.1).

CONCISE STATEMENT OF BASIS
FOR JURISDICTION

Petitioner has accurately presented the basis for
jurisdiction of this Court, including the statutory
provisions and time facts on which jurisdiction rests
and, as such, Respondents incorporate Petitioner's
“Jurisdiction” Statement. (Pet. p.1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

In addition to statutory provision 42 U.S.C. § 1983,
referenced to by Petitioner (Pet. p. 2), the Fourth
Amendment of the U.S. Constitution is also involved in
this case.

STATEMENT OF THE CASE

Statement of the Case

Respondents’ refer to and incorporate the summary
of the procedural history and facts set forth by the
majority of the Ninth Circuit Court of Appeals below
in Krainski v. NSHE et al., 616 F.3d 963, 965-967 (9th
Cir. 2010).

Misstatements of in Petition

Respondents do, pursuant to Rule 15.2, point out
misstatements of fact or law in the Petition that bear
on what issues would be before the Court if certiorari
were granted.

Contrary to Petitioner’s assertion, the District
Court provided a detailed analysis and explanation of
its decision at the time of the hearing on Respondent’s
Motion to Dismiss. (RA, 70b-73b). Moreover, during
the hearing Petitioner asked the Court to reconsider
its position on the Fourth Amendment claim and
substantive due process claim. (RA, 75b). = Lastly,
Petitioner failed to raise the request for leave to
amend at all during the hearing (RA, 68b-79b) or
following the hearing via a motion for reconsideration.
The District Court’s Order of October 20, 2008, simply
memorialized the analysis provided to the parties
during the hearing on the Motion to Dismiss.
(Petitioner's Appendix, 23-27).

Petitioner’s request to amend, included in her
Opposition to Defendants’ Motion to Dismiss, was not

clearly stated or sufficiently supported and failed to
comply with the local rules’ requiring the moving
party to attach the proposed amended pleading to any

”

motion. (Respondents’ Appendix, hereinafter “RA,
66b-67b). Petitioner’s request was a “naked” request
made in passing without any support. /d. Other than
including the passing reference in her Opposition,
Petitioner failed to provide the District Court with
notice of the basis for the request, including any
statements whatsoever regarding what the proposed
amendment might look like. Id.

Petitioner’s misrepresents the allegations
Petitioner pled in her own Complaint. Contrary to
Petitioner’s assertion, she did not plead “continuous
and unyielding harassment and threats made by Polee
to Krainski.” (Petition, p.8). Petitioner actually pled
that she met with the University employee,
Respondent Leslie Wallenfeldt, and advised her of “on-
going harassing and threatening behavior by
{Petitioner’s} roommate.” Krainski v. Polee, 616 F.3d
at 966. In several places within the Petition she
asserts allegations that never appeared in her
Complaint or on appeal before the Ninth Circuit. It is
only now, in the Petition, that Petitioner sets forth the
following allegation, four separate times: “and that no
physical evidence of an attack existed whatsoever.”
(Pet. p.9; pp.12-13; p.14).

' Local Rule 15-1(a):

Unless otherwise permitted by the court, the moving party shall
attach the proposed amended pleading to any motion to amend so
that it will be complete in itself without reference to the
superseding pleading. An amended pleading shall include copies
of all exhibits referred to in such pleading.

4

Missing from the Petition is an accurate summary
of the criminal proceedings. Petitioner was arrested
for the crime of Assault with a Deadly Weapon.
Krainshi, 616 F.3d at 966. Petitioner subsequently
entered into a plea deal, which involved a submittal on
the record wherein Petitioner pled guilty to a reduced
crime of misdemeanor Disorderly Conduct, which
would be dismissed upon her completion of impulse
control counseling. (RA, 72b).

Misstatements of Law tin Petition

The decision of the Ninth Circuit panel is in accord
with governing legal principles set by this Court
regarding qualified immunity and the standard of
review on a motion to dismiss. See Argument, Section
Ili, A, below. The decision of the Ninth Circuit
corresponds with Bell Atl. Corp. v. Twombly and
Ashcroft v. Iqbal, holding that threadbare recitals of
the elements of a cause of action, supported by mere
conclusory statements do not suffice to overcome a
motion to dismiss. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 1275. Ct. 1955 (2007); Ashcroft v. Iqbal,

U.S. , 129 S. Ct. 1937, 1949, 173 L. Ed. 2d
868 (2009).

Il.
THE OPINIONS BELOW

The District Court granted Respondents’ Motion to
Dismiss. ‘The Eleventh Amendment immunity barred
Petitioner’s constitutional claims against UNLV and
the UNLV Employees in their official capacities.
Krainshi, 616 F.3d at 967-968. Qualified immunity
barred Petitioner’s federal claims against the UNLV

5

Employees in their individual capacities. The District
Court also found Petitioner failed to make out federal
claims for Fourteenth Amendment precedural due
process, having alleged that she received some notice
and hearing; substantive due process, having failed to
allege a violation of a cognizable fundamental liberty
or property interest; or violation of the Fourth
Amendment relative to search and seizure, having
pled facts constituting probable cause to arrest her by
the police officer defendants employed by the
University. (Pet. App. 23-27). The District Court
having dismissed Petitioner’s federal claims, with
prejudice, declined to exercise jurisdiction over the
remaining state law claims and therefore dismissed
such claims without prejudice to Petitioner’s right to
bring them in state court. Jd.

The Ninth Circuit Court of Appeals panel affirmed
the District Court’s dismissal of Petitioner’s
constitutional claims against UNLV and UNLV
Employees in their official capacities. Krainski, 616
F.3d at 967-968. The Ninth Circuit panel further
affirmed the District Court’s dismissal of Petitioner’s
theory under Monell v. Dep’t of Social Servs. of N.Y.,’
that her constitutional rights were infringed by a “de
facto policy” of UNLV and the UNLV Employees in
accordance with this Court’s express decline to extend
Monell’s theory of municipal liability under § 1983 to
state entities or state officials. Jd. at 968 (citations
omitted).

* 436 U.S. 658, 690 n.55, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611
(1978).

6

A majority of the Ninth Circuit panel affirmed the
District Court’s dismissal of Petitioner's Fourth
Amendment claim against Respondents because
Respondent police officers were entitled to qualified
immunity in that, “a reasonable police officer could
have believed that his or her conduct was lawful’ when
arresting a suspect following a report from two
University employees and the student alleging an
attack.” Id. at 969.

There was a two to one decision, with a Justice
dissenting, in part, with regards to dismissal of
Petitioner’s Fourth Amendment claim. The dissenting
Justice indicated the conclusory allegations made by
Petitioner in her Complaint: that the UNLV police
officers knew or should have known, that the
allegations [against Petitioner] were false, were
sufficiently pled. (Pet. App. 18). Respectfully, the
dissent misapplied the principles enunciated by this
Court in Bell Atl. Corp. v. Twombly, and Ashcroft v.
Iqbal, which are addressed below. The Justice further
dissented, in part, with regards to the issue of leave to
amend, which Petitioner failed to properly place before
the District Court, but which even if considered, failed
to set forth any factual basis whatsoever to support a
leave to amend, and for which Petitioner actually did
not ever set forth any new facts that she could include
in her Complaint to avoid its shortcomings.

The Ninth Circuit affirmed the District Court’s
dismissal of Petitioner’s substantive and procedural
due process claims based upon qualified immunity as
the contours of the right asserted by Petitioner were
not sufficiently clear that a reasonable person would
understand that what he or she is doing violates that

7

right. Pearson v. Callahan, 555 U.S. 223, 129 S. Ct.
808, 821, 172 L. Ed. 2d 565 (2009).

Lastly, the Ninth Circuit majority affirmed the
District Court’s decision to dismiss the federal claims
with prejudice and denial of leave to amend
Petitioner's Complaint. Frankly, Petitioner’s
Complaint failed to contain sufficient factual matter to
state a facially plausible claim to relief. Ashcroft v.
Iqbal, 1298. Ct. at 1949. No new facts were presented
to the District Court by Petitioner that she could
include in her complaint to overcome its shortcomings.
Even at the late stage of oral argument before the
Ninth Circuit the best Petitioner could come up with
was more conclusory allegations.* Even considering
those conclusory allegations, they did not constitute
facts under this Court’s enunciated standards, which
properly led to the affirming of the District Court’s
denial of leave to amend.

We are certainly aware of many more facts now than we
were when we first drafted the complaint. So essentially,
the allegations we could add to the complaint at this point
is to be more specific about the actual] conspiracy that took
place, who it occurred between, what school officials were
actually involved with this.

Krainski, 616 F.3d 963 at 973.

8

Il.
ARGUMENT

THE COURT OF APPEALS CORRECTLY
CONCLUDED THAT THE DISTRICT COURT'S
DECISION TO DISMISS PETITIONER’S
COMPLAINT BASED UPON BELL ATL. CORP. V.
TROWMBLY AND ASHCROFT V. IQBAL, AS
WELL AS PRINCIPLES OF QUALIFIED
IMMUNITY, WAS NOT CONTRARY TO OR AN
UNREASONABLE APPLICATION OF CLEARLY
ESTABLISHED FEDERAL LAW

Petitioner seeks review of his case by writ of
certiorari, arguing that the court of appeals’ decision
regarding dismissal of her Fourth Amendment claim,
and denial of leave to amend, was contrary to federal
law. Petitioner asserts that a higher pleading
standard was required for her claims and that she
should have been granted leave to amend despite
having set forth no factual support for such leave to
amend. (Pet. 11-14 and 15-18).

The petition should be denied, however, because
the questions Petitioner presents are not accurately
reflective of the decision below. Rather, both the
district court and court of appeals correctly concluded
that Respondents were entitled to qualified immunity
as to Petitioner’s Fourth Amendment claim. (Pet. App.
10-11 and 26-27). The court of appeals included in its
opinion discussion of the issue of leave to amend that
Petitioner failed to set forth sufficient factual matter
to state a facially plausible claim to relief, because she
presented no new facts to overcome the shortcomings
of the Complaint.

9

A. The Ninth Circuit Court of Appeals
Majority Correctly Applied Geverning U.S.
Supreme Court Pleading Standards

The Ninth Circuit did not establish a heightened
pleading standard for Section 1983 cases. Rather, the
Ninth Circuit simply correctly applied the principles
set forth by this Court in Ashcroft v. Iqbal, 129 S. Ct.
1937, and Bell Atl. Corp. v. Twombly, 550 U.S. 544.

Federal Rule of Civil Procedure 8(a)(2) requires “a
short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
Although the “short and plain statement” requirement
“does not require ‘detailed factual allegations,’...it
demands more than an unadorned, the defendant-
unlawfully-harmed-me accusation.” Iqbal, 1298S. Ct.
at 1949. “A pleading that offers ‘labels and
conclusions, or a ‘formulaic recitation of the elements
of a cause of action will not do.’... Nor does a
complaint suffice if it tenders ‘naked assertion{s]’
devoid of ‘further factual enhancement.” Iqbal, 12958.
Ct. at 1949 (citing Twombly, 550 U.S. at 557)).

Frankly, Petitioner alleged, at best, threadbare
recitals of the elements of a cause of action, supported
by mere conclusory statements, which do not suffice.
Iqbal, 129 S. Ct. at 1950. Petitioner’s Complaint
alleged Respondent UNLV police Officers Goff,
Tramposch and Culver violated her Fourth
Amendment right to be free from warrantless arrest
absent probable cause. Petitioner failed to allege facts
that supported her legal contentions that her arrest
lacked probable cause. Petitioner failed to allege facts
that supported her legal contention that the police
officers “knew or should have known the allegations

10

made by victim Polee” were false. Petitioner failed to
allege facts to suggest UNLV police officers had any
reason to disbelieve the statements made by the victim
and the two University employees that Petitioner
attacked Polee with scissors. Petitioner pled:

28. Defendants Wallenfeldt, Pini and Polee then
contacted UNLV Police and made false
statements to police officer (sic) in an attempt to
have Plaintiff arrested.

29/49. Defendant Officers Goff, Tramposch and
Culver, knew, or should have known, that the
allegations made by Defendant Polee were false,
but arrested Plaintiff for the alleged crime of
Assault with a Deadly Weapon;

30/50. Prior to making the arrest, Defendant
Officers Goff, Tramposch, and Culver did not
conduct any investigation into the claims made
by Defendant Polee, and had no probable cause
or warrant to arrest Plaintiff.

(Pet. App. 4). The tenet that a court must accept as
true all of the allegations contained in a complaint is
inapplicable to legal conclusions. /qgbal, 1129S. Ct.
at 1949 (emphasis added). The Court is not bound to
accept as true a legal conclusion couched as a factual
allegation. Jd. While legal conclusions can provide a
framework of a complaint, they must be supported by
factual allegations. Jd. Petitioner’s bare assertions
amounted to nothing more than a “formulaic recitation
of the elements,” for a Fourth Amendment claim and
conclusory allegations are not entitled to be assumed

true. Id. at 1951.

11

Because the arresting officers are protected by
qualified immunity, and becausc Petitioner did not
allege facts that showed a clear violation of the Fourth
Amendment, Petitioner’s claim of Fourth Amendment
violation was properly dismissed. Pursuant to
Twombly and Iqbal, the Court is to consider the
factual allegations in Petitioners complaint to
determine if they plausibly suggest an entitlement to
relief. Here, Petitioner's Complaint alleges
“Defendants Wallenfeldt, Pini and Polee contacted
UNLV Police and made false statements to the police
officer (sic) in an attempt to have Plaintiff arrested.”
(Pet. App. 4). Even assuming the few well pleaded
facts gave rise to a plausible inference that UNLV
Police Officers lacked probable cause, it is not
necessary to reach whether or not probable cause was
lacking because assuming the police officers were
mistaken, there is no law that would have made it
clear to a reasonable officer in these officers’ position
that their assessment of probable cause violated
Petitioner’s constitutional rights. Thus, under the
standards of Twombly and Iqbal, Petitioner, failed to
allege more by way of factual content to “nudg[e]” her
claim of Fourth Amendment violation “across the line
from conceivable to plausible.” Jd. at 1952. Moreover,
the police officers would still be entitled to qualified
immunity based on their objectively reasonable, albeit
mistaken, belief that there was probable case. Hunter
v. Bryant, 502 U.S. 224, 227-29, 112 S. Ct. 534, 116 L.
Ed. 2d 589 (1991) (per curiam).

12

B. The Ninth Circuit Court of Appeals
Majority Correctly Applied Governing U.S.
Supreme Court Qualified Immunity
Principles

UNLV police officers, arrested Petitioner, a suspect,
following a report from Polee, the student alleging
attack, and two UNLV employees indicating that
Plaintiff had attacked Polee with a pair of scissors.
The UNLV police officers were properly entitled to
qualified immunity from 42 U.S.C. 1983 sust, because
taken in light most favorable to Petitioner, the facts
alleged demonstrated a reasonable police officer could
have reasonably believed the arrest was lawful. The
doctrine of qualified immunity protects government
officials from liability for civil damages “insofar as
their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald, 457
U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).

Because qualified immunity is “an immunity from
suit rather than mere defense to liability,” this Court
has “repeatedly stressed the importance of resolving
immunity questions at the earliest possible stage in
litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526, 105
S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Harlow, 457 U.S.
at 818; Pearson v. Callahan, 129 S. Ct. 808, 815.

Determining whether officials are owed qualified
immunity involves two inquiries: (1) whether, taken
in the light most favorable to the party asserting the
injury, the facts alleged show the officer’s conduct
violated a constitutional right; and (2) if so, whether
the right was clearly established in light of the specific
context of the case. Saucter v. Katz, 533 U.S. 194, 201,

13

12158. Ct. 2151, 150 L. Ed. 2d 272 (2001), overruled by
Pearson v. Callahan, 129 S. Ct. at 818 (hoiding it is
within a Court’s sound discretion to address these two
prongs in any sequence they see fit). “For a
constitutional right to be clearly established, ‘its
contours must be sufficiently clear that a reasonable
official would understand that what he is doing
violates that right’ at the time of his conduct.”
Anderson v. Creighton, 438 U.S. 635, 640, 107 S. Ct.
3034, 97 L. Ed. 2d 523 (1987); Hope v. Pelzer, 536 U.S.
730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002).

UNLV police officers are entitled to immunity if a
reasonable officer could have believed probable cause
existed to arrest Petitioner. Probable cause existed if
“at the moment the arrest was made, the officers had
probable cause to make it — whether at that moment
the facts and circumstances within their knowledge
and of which they had reasonably trustworthy
information were sufficient to warrant a prudent man
in believing that the petitioner had committed or was
committing an offense.” Beck v. Ohio, 379 U.S. 89, 91,
85 S. Ct. 223, 228, 13 L. Ed. 2d 142 (1964); Henry v.
United States, 361 U.S. 98, 102, 80S. Ct. 168, 4 L. Ed.
2d 134 (1959).

No constitutional violation occurred in this case
because the police officers arrested Petitioner based on
information from three people. Petitioner admittedly
pled that UNLV police officers Goff, Tramposch, and
Culver arrested Petitioner based upon information
derived from statements of the student who reported
the attack, Polee, and two University officials, Tyree
Pini and Leslie Wallenfeldt that Petitioner had
attacked Polee with a pair of scissors. (Pet. App. 4).
Petitioner included bare allegations in her Complaint

14

that the officers “knew or should have known, that the
allegations....were false” (Pet. App. 4) but failed to
allege in either her complaint or at oral argument
before the District Court or the Ninth Circuit any facts
suggesting that the police officers had a reason to
disbelieve or suspect that the statements made by the
victim and the two other university employees were
false.

Even assuming, arguendo, that the police officers
erred in concluding that probable cause existed to
arrest Petitioner, the police officers nevertheless would
be entitled to qualified immunity because their
decision was reasonable, even if mistaken. Qualified
immunity shields UNLV police officers Goff,
Tramposch and Culver from suit for damages if a
reasonable officer could have believed [Petitioner
Krainski’s] arrest to be lawful, in light of clearly
established law and the information the [arresting]
officers possessed. Hunter, 502 U.S. at 227. “Even law
enforcement officials who ‘reasonably but mistakenly
conclude that probable cause is present’ are entitled to
qualified immunity.” Jd., Pearson v. Callahan, 129 S.
Ct. at 815 (“The protection of qualified immunity
applies regardless of whether the government official’s
error is ‘a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.”).
Accordingly, the UNLV police officers were properly
entitled to qualified immunity as to Petitioner’s Fourth
Amendment claim.

15

C. The Ninth Circuit Court of Appeals
Majority Correctly Determined Petitioner
Failed to Set Forth New Facts Before the
District Court, and for that matter, the
Ninth Circuit, Which Petitioner Could
Include in her Complaint to Overcome its
Fatal Shortcomings

On the next to the last page of her Opposition to
Defendants’ Motion to Dismiss, Petitioner requested
the following:

In the unlikely event that this Court was to find
any of Plaintiffs causes of action insufficient,
leave to amend is graciously requested.
Plaintiff strongly believes that this Court could
‘conceive of facts’ that would render his (sic)
claims valid, if he (sic) were permitted to
amend.

(RA, 66b-67b)

Wnen a party files a proper motion for leave to
amend, rule 15(a) further provides “leave shall be
freely given when justice so requires (emphasis
added).” Fed. R. Civ. P. 15(a); see also Foman v. Davis,
371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222
(1962); see generally 6 Charles Alan Wright et al.,
Federal Practice and Procedure §§1473 & 1483 (3d ed.
2010). The liberal granting of motions for leave to
amend reflects the basic policy that pleadings should
enable a claim to be heard on its merits. See Foman,
371 US. at 181-82; 6 Wright et al., supra §1473 at 601
602. This policy is not limitless and must be balanced
against Fed. R. Civ. P 7(b\1) which governs the
requirements for all motions and provides that any

16

motion must “be in writing ... ; state with
particularity the grounds for seeking the order . . . ;
and state the relief sought.” See also 5 Wright &
Miller, supra § 1191 at 50-51 (3d ed. 2004). By
requiring notice to the court and the opposing party of
the basis for the motion, rule 7(b)(1) advances the
policies of reducing prejudice to either party and
ensuring that “the court can comprehend the basis of
the motion and deal with it fairly.” 5 Wright & Miller,
supra § 1192 at 56; see also id. § 1191 at 50. The
District Court has wide discretion to recognize a
motion for leave to amend in the interest of a just, fair
or early resolution of litigation. See id., § 1194.

Many districts, including Nevada,* have local rules
requiring the moving party to submit a copy of the
amended pleading with the motion for leave. See, e.g.,
Thomas v. R.1I., 542 F.3d 944, 950, 71 Fed. R. Serv. 3d
944 (1st Cir. 2008) (discussing failure to comply with
local rule); United States ex. rel. Lee v. Fairview Health
Sys., 413 F.3d 748, 750 (8th Cir. 2005) (noting
plaintiffs failure to comply with local rule requiring
submission of copy of amended complaint); Lemmons
v. Georgetown Univ. Hosp., 241 F.R.D. 15, 30, 100 Fair
Empl. Prac. Cas. (BNA) 563, 89 Empl. Prac. Dec.
(CCH) P 42,777 (D.D.C. 2007) (local rule requires
submission of proposed amendment); Romero v. Wilson
Elementary Sch. Distr. No. 7, No. CV 05-2231-PHX-
MHM, 2006 U.S. Dist. LEXIS 57652, 3-4, 2006 WL
2374844, 2 (D. Ariz. Aug. 15, 2006) (noting local rule
requiring parties to file a notice identifying the
differences between the original and amended
pleadings and submit a “strike-through” version of the

4a
See footnote 1, supra

17

proposed amendment); United States v. 3 Parcels in La
Plata Cnty., 919 F. Supp. 1449, 1457, i995 U.S. Dist.
LEXIS 20664, 22 (D. Nev. 1999) (No _ proposed
amended pleadings accompanied the party’s motion.
That failure alone required the court to deny the
party’s motion to amend his claim and answer).

The court of appeals properly affirmed denial of
Petitioner’s request for leave to amend because the
Complaint lacked sufficient factual matter to state a
facially plausible claim to relief, and no new facts were
ever presented by Petitioner to demonstrate she could
remedy the Complaint’s shortcomings. Petitioner
mentioned a request for leave to amend on the next to
the last page of her Opposition to the Defendants’
Motion to Dismiss. (RA, 66b-67b). The request for
leave to amend was not clearly stated nor sufficiently
supported and failed to comply with the local rules
requiring the moving party to attach the proposed
amended pleading to any motion. Instead, Petitioner’s
request was a “naked” request made in passing
without any support. Other than including the
passing reference in her Opposition, Petitioner failed
to provide the District Court with notice of the basis
for the request, including any statements whatsoever
regarding what the proposed amendment might look
like. District Courts are surely not required to engage
in independent research or read the minds of litigants
to determine if information justifying an amendment
exists.

Petitioner’s request Jacked a statement for the
grounds for amendment and dangled at the end of her
Opposition to the Defendants’ Motion to Dismiss and
simply did not rise to the level of a motion for leave to
amend. Because the motion for leave to amend was

18

never properly before it, the District Court did not
abuse its discretion is failing to address Petitioner’s
request for leave to amend.

Moreover, even if the Court overlooked this
procedural defect, the District Court’s decision to grant
the motion to dismiss was sound. At the actual
hearing (October 14, 2008) before the District Court on
the Defendants’ Motion to Dismiss, Petitioner did not
suggest that she wanted to amend her complaint to
add facts to the Fourth Amendment claim. (RA, 74b-
75b). On appeal, before the Ninth Circuit, Petitioner
stated at oral argument (December 3, 2009):

We are certainly aware of many more facts
now than we were when we first drafted the
complaint. So essentially, the allegations we
could add to the complaint at this point 1s to be
more specific about the actual conspiracy that
took place, who it occurred between, what
school officials were actually involved.

(Pet. App. 21).

However, Petitioner did not state she was aware of
“facts” at the time of the District Court hearing or that
she brought these “facts” forth to the District Court’s
attention. More importantly, and fatally, at oral
argument before the Ninth Circuit, Petitioner failed to
specify what “facts” she claimed to have.

Petitioner failed to raise the issue of amendment
during the hearing before the District Court.
Petitioner certainly had an opportunity to present. all
of her arguments before the Court, and certainly did
so. In fact, Petitioner even requested the District

19

Court reconsider its position of the Fourth Amendment
and substantive due process claims. (RA, 75b-76b).
The District Court listened to Petitioner’s arguments
and in view of the dialogue, did in fact reconsider but
was not moved by Petitioner’s argument. Id.
Significantly, Petitioner failed to raise the issue of
amendment during the hearing. (RA, 68b-79b).

Instead, Petitioner essentially demands that the
District Court should have sua sponte raised the leave
to amend issue when she failed to follow the rules,
failed to raise it during oral argument on the
Defendants’ Motion to Dismiss; and failed to bring it
properly before the Court. Assuming Vetitioner had
made the claim to the District Court, as she boldly
made before the Ninth Circuit, there are simply no
facts pled (emphasis added). To survive a motion
dismiss, a complaint must contain sufficient factual
matter to state a facially plausible claim to relief.
Iqbal, 128 S. Ct. at 1949. Although the “short and
plain statement” of Rule 8 does not require “detailed
factual allegations,’...it demands more than an
unadorned, the defendant-harmed-me accusation.” Jd.
No new facts were ever actually presented by
Petitioner to overcome any of the shortcomings of the
Complaint.

20
IV.
CONCLUSION
The petition for writ of certiorari should be denied.
Respectfully submitted,

SUSAN CARRASCO O’BRIEN
Counsel of Record
Nevada State Bar No. 2396
Assistant General Counsel
UNIVERSITY OF NEVADA, LAS VEGAS
4505 Maryland Parkway, Box 41085
Las Vegas, Nevada 89154-1085
Ph#: (702) 895-5185
Susan.OBrien@unlv.edu

Counsel for Respondents

State of Nevada ex. rel. Board of
Regents of the Nevada System of
Higher Education on behalf of the
University of Nevada, Las Vegas;
Rebecca Mulls; Richard Clark; Phillip
Burns; Nannette Jimenez; Tyree Pini;
Officer L. Tramposch; Officer B. Gott;
Officer J. Culver; Susan M. Carrasco;
and Leslie Wallenfeldt

APPENDIX

Appendix A:

Appendix B:

Appendix C:

1

APPENDIX

TABLE OF CONTENTS

Complaint, United States
District, District of Nevada
FOG ae.) tb

Opposition to Defendants Motion

to Dismiss Plaintiffs Complaint,
United States District Court,
District of Nevada

(July 11, 2008) ........ 23b

Reporter's Transcript of
Proceedings, United States
District Court, District of
Nevada, The Honorable James C.
Mahan, Judge Presiding

(October 14, 2008) 68b

APPENDIX A

JASON J. BACH, ESQ.
Nevada Bar No.: 7984

THE BACH LAW FIRM, LLC
2620 Regatta Dr., Ste. 102
Las Vegas, NV 89128

Tel: (702) 925-8787

Fax: (702) 925-8788

Attorney for Plaintiff

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

* KKK *
CASE:

[Filed April 2, 2008]

MEGAN KRAINSKI.
Plaintiff.
Vv.

THE STATE OF NEVADA. ex. Rel. BOARD
OF REGENTS OF THE NEVADA SYSTEM
OF HIGHER EDUCATION, on behalf of the
UNIVERSITY OF NEVADA, LAS VEGAS;

a Political Subdivision of the State of Nevada;
REBECCA MILLS, individually and as Vice
President for Student Life of the University of
Nevada, Las Vegas; RICHARD CLARK,

a ee eet ee ed ee

2b

individually and as Director of Student
Conduct and Residential Life of the University
of Nevada, Las Vegas; PHILLIP BURNS,
individually and as Senior Student Conduct
Officer of the University of Nevada, Las
Vegas; NANNETTE JIMENEZ, individually
and as a Student Conduct Officer of the
University of Nevada, Las Vegas; SUSAN M.
CARRASCO, individually and as Assistant
General Counsel of the University of Nevada,
Las Vegas; TYREE PINI, individually and as
Assistant Residential Life Coordinator;
LESLIE WALLENFELDT, individually and as
Residential Life Coordinator of the University
of Nevada, Las Vegas; OFFICER BRETT
GOFF, P#302, individually and as a police
officer with the University of Nevada, Las
Vegas Police Department; OFFICER L.
TRAMPOSCH, P#312, individually and as a
police officer with the University of Nevada,
Las Vegas Police Department; OFFICER J.
CULVER, P#309, individually and as a police
officer with the University of Nevada, Las
Vegas Police Department; KENYA POLEE,
individually; DOES I-XX, inclusive,

~~ ee a — — ~— me ee ee eee a ee” ee Mh ae

Defendants. )

COMPLAINT
(Jury Demanded)

COMES NOW, Plaintiff, MEGAN KRAINSKI
(hereinafter referred to as “Plaintiff”), by and through
her attorney of record, JASON J. BACH, ESQ. of THE
BACH LAW FIRM, LLC, and hereby complains and

3b

alleges against the above-named Defendants, and each
of them, based upon knowledge, information and a
reasonable belief derived therefrom, as follows:

INTRODUCTION

This is a Complaint for Damages and Declaratory
Judgment, pursuant to Fed. R. Civ. P. 57, brought by
a student of the University of Nevada, Las Vegas. The
claims, against the University System, the University,
the Vice President, Attorneys, Employees and Officers
of this public university, are based upon 42 U.S.C.
Section 1983 and the Fourth, Fifth, and Fourteenth
Amendment of the United States Constitution,
alleging infringement of Plaintiffs right to substantive
and procedural due process, and right to be free of
false arrest and imprisonment, and malicious
prosecution. Plaintiff also relies on the University’s
Student Conduct Code and alleges a pendent breach of
contract claim. Plaintiff has also asserted a claim
against all Defendants for negligent hiring, training,
and supervision, intentional and negligent infliction of
emotional distress, civil conspiracy, abuse of process,
defamation, slander, libel, and injunctive and
declaratory relief.

PARTIES & JURISDICTION

i. This Court has jurisdiction over the claims
set forth in this action pursuant to 28 U.S.C. Section
1331 (federal question) and 28 U.S.C. Section 1343
(civil rights).

ms Supplemental jurisdiction over Plaintiffs
pendent state law claims is invoked pursuant to 28
U.S.C. Section 1367, as the claim arises out of the

4b

same transaction and occurrence as Plaintiffs federal
claim.

3. Venue is proper in the District of Nevada
pursuant to 28 U.S.C. 1391(b) in that the claims arose
in this district, and Plaintiffs and Defendants are
located in this district.

4. Costs, expert witness fees, and attorney’s
fees are sought pursuant to 42 U.S.C. Section 1988.

5. Plaintiff is currently a resident of the State
of Nevada, and at all relevant times, was a student at
the University of Nevada, Las Vegas.

6. Defendant THE STATE OF NEVADA, ex.
Rel. BOARD OF REGENTS OF THE NEVADA
SYSTEM OF HIGHER EDUCATION, on behalf of the
UNIVERSITY OF NEVADA, LAS VEGAS is a political
subdivision of the State of Nevada and operates the
University of Nevada, Las Vegas (hereinafter referred
to as “UNLV”), a public educational institution of
higher learning.

‘is Defendant REBECCA MILLS is the Vice
President for Student Life at UNLV. She is named in
this case both individually and in her official capacity
as Vice President for Student Life at UNLV.

8. Defendant RICHARD CLARK is the Director
of Student Conduct and Residential Life at UNLV. He
is named in this case both individually and in his
official capacity as Director of Student Conduct and

Residential Life at UNLV.

Sb

9. Defendant PHILLIP BURNS is the Senior
Student Conduct Officer at UNLV. He !s named in this
case both individually and in his official capacity as

Senior Student Conduct Officer at UNLV.

10. Defendant NANNETTE JIMENEZ is a
Student Conduct Officer at UNLV. She is named in
this case both individually and in her official capacity
as a Student Conduct Officer at UNLV.

11. Defendant SUSAN M. CARRASCO is the
Assistant General Counsel at UNLV. She is named in
this case both individually and in her official capacity
as Assistant General Counsel at UNLV.

12. Defendant TYREE PINI is the Assistant
Residential Life Coordinator at UNLV. He is named in
this case both individually and in his official capacity
as Assistant Residential Life Coordinator at UNLV.

13. Defendant LESLIE WALLENFELDT is the
Residential Life Coordinator at UNLV. She is named
in this case both individually and in her official
capacity as Residential Life Coordinator at UNLV.

14. Defendant OFFICER BRETT GOFF P#302
is a police officer with the UNLV Police Department.
He is named in this case both individually and in his
official capacity as a police officer at UNLV.

15. Defendant OFFICER L. TRAMPOSCH
P#312 is a police officer with the UNLV Police
Department. He is named in this case _ both
individually and in his official capacity as a police

officer at UNLV.

6b

16. Defendant OFFICER J. CULVER P#309 isa
police officer with the UNLV Police Department. He is
named in this case both individually and in his official
capacity as a police officer at UNLV.

17. Defendant KENYA POLEE is, at all times
relevant, believed to be a resident of the State of
Nevada.

18. That the true names or capacities, whether
individual, corporate, associate or otherwise, of
Defendants DOES I through XX are unknown to
Plaintiff, who therefore, sues said Defendants by such
fictitious names.

19. Plaintiff is informed and believes and
thereon alleges that each of the Defendants designated
herein as DOES are responsible in some manner for
the events and happenings referred to in this action
and proximately caused damages to Plaintiff as herein
alleged, and that Plaintiff will ask leave of this Court
to amend this Complaint, to insert the true names and
capacities of said Defendants, and when the same have
been ascertained to join such Defendants in this
action.

20. At all times herein, the individual
Defendants, with the exception of Defendant POLEE
and the Defendant UNLV, have been acting under
color of law.

21. Atall times relevant hereto, and in all their
actions described herein, Defendants’ actions took
place in the State of Nevada, County of Clark.

7b

22. Defendants, and each of them, did the acts
and omissions hereinafter alleged in bad faith and
with knowledge that their conduct violated well
established and settled law.

GENERAL FACTUAL ALLEGATIONS

23. Plaintiff enrolled as a student at UNLV for
the Fall 2007 semester.

24. As Plaintiff was from New Jersey, she
elected to reside in Defendant UNLV’s campus
residential housing.

25. On September 10, 2007, Plaintiff met with
Defendant WALLENFELDT and advised her of
on-going harassing and threatening behavior by
Plaintiff's roommate, Defendant POLEE.

26. Defendant POLEE is’ a_ prominent
student-athlete at UNLV, listed on the University’s
website as “the top long jumper for the Rebels... among
the top long jumpers in the MWC (Mountain West
Conference).”

27. On September 11, 2007, Defendants
WALLENFELDT and PINI contacted Defendant
POLEE, without Plaintiff's consent and in breach of
confidentiality, and informed her of the allegations
made by Plaintiff, and conspired with Defendant
POLEE to fabricate a story about Plaintiff attempting
to attack POLEE with a pair of scissors, all before
Plaintiff would have an opportunity to file a formal
complaint against Defendant POLEE.

8b

28. Defendants WALLENFELDT, PINI, and
POLEE then contacted UNLV Police and made false
statements to police officer in an attempt to have
Plaintiff arrested.

29. Defendant Officers GOFF, TRAMPOSCH,
and CULVER, knew, or should have known, that the
allegations made by Defendant POLEE were false, but
arrested Plaintiff for the alleged crime of Assault with
a Deadly Weapon.

30. Prior to making the arrest, Defendant
Officers GOFF, TRAMPOSCH, and CULVER did not
conduct any investigation into the claims made by
Defendant POLEE, and had no probable cause or

warrant to arrest Plaintiff.

31. Plaintiff was eventually exonerated of all
criminal charges in January 2008, but not before she
was arrested and incarcerated at the Clark County
Detention Center, causing her to lose her liberty and
causing severe psychological trauma and _ physical
injury.

32. In October 2007, Defendants UNLV, MILLS,
CLARK, BURNS, JIMENEZ, and CARRASCO brought
formal charges against Plaintiff for alleged violations
of the University of Nevada, Las Vegas Student
Conduct Code, including committing an act “that is in
violation of federal, state, or local law,” “Threatening,
assaulting, or causing physical harm to. . . another;”
and “Attempting to violate any provision of the
Student Conduct Code.”

33. Defendants UNLV, MILLS, CLARK,
BURNS, JIMENEZ, and CARRASCO failed to provide

9b

Plaintiff with proper notice of the formal hearing,
violating her U.S. Constitutional Rights, the UNLV
Student Conduct Code, and the Nevada System of
Higher Education (NSHE) Code.

34. Defendants UNLV, MILLS, CLARK,
BURNS, JIMENEZ, and CARRASCO held a formal
hearing on November 13, 2007, at which time they
each failed to allow Plaintiff to be represented and/or
assisted by her advisors, despite the explicit
representation made by Defendants that Plaintiff
would be allowed to be represented and/or assisted by
said advisors, intentionally causing Plaintiff to be
ineffective at representing herself at said hearing, all
in violation of her U.S. Constitutional Rights, the
UNLV Student Conduct Code, and the Nevada System
of Higher Education (NSHE) Code.

35. Despite the fact that no evidence was ever
presented to support any of the allegations made
against Plaintiff, Defendants UNLV, MILLS, CLARK,
BURNS, JIMENEZ, and CARRASCO found Plaintiff
to be “Responsible” of said charges, completely
ignoring the evidence that exonerated Plaintiff, forever
tarnishing the educational transcript and record of
Plaintiff, as well as causing severe psychological and
physical injuries, all in violation of her U.S.
Constitutional Rights, the UNLV Student Conduct
Code, and the Nevada System of Higher Education
(NSHE) Code.

36. Plaintiff filed a timely appeal of Defendants
decision. However, Defendants UNLV, MILLS,
CLARK, BURNS, JIMENEZ, and CARRASCO again
ignored the facts and dismissed the appeal, all in
violation of her U.S. Constitutional Rights, the UNLV

10b

Student Conduct Code, and the Nevada System of
Higher Education (NSHE) Code.

37. Defendants have taken said actions against
Plaintiff in retaliation for her making a complaint
against a star athlete, and further retaliating against
her for asserting her rights pursuant to the U.S.
Constitutional Rights, the UNLV Student Conduct
Code, and the Nevada System of Higher Education
(NSHE) Code.

38. As a result of the above, Defendants, and
each of them, have wrongly caused Plaintiff! to be
sanctioned and for the above-noted sanctions to be
wrongly placed on her record, all in violation of her
U.S. Constitutional Rights, depriving her of the
opportunity to obtain an education and further her
career, and inflicting emotional distress and physical
injury, all damaging her in an amount in excess of
SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00).

FIRST CAUSE OF ACTION

CIVIL RIGHTS VIOLATION, DUE PROCESS
VIOLATION, FIFTH AND FOURTEENTH
AMENDMENT TO THE UNITED
STATES CONSTITUTION

39. Paragraphs 1 through 38, inclusive are
incorporated by reference.

4(). The actions of Defendants resulted from, and
were taken, pursuant to a de facto policy of Defendant
UNLV, which is implemented by Police Officers,
Student Conduct Officers, Assistant General Counsels,

llb

Directors of Student Conduct, and by the Vice
President for Student Life, and other employees of the
said Defendants, all acting under the color of law, who
chose to violate Plaintiffs constitutional rights,
without rightful authority of law.

41. Supervisory and policy making officers and
officials of said Defendants have known the existence
of the de facto policy described above for a substantial
period of time.

42. Despite their knowledge of the said illegal
policy and practices, supervisory and policy-making
officers and officials of the said Defendants have not
taken steps to determine said practices, have not
disciplined or otherwise properly supervised the
individual employees who engaged in the said
practices, have not effectively trained Police Officers,
Student Conduct Officers, Directors of Student
Conduct, and the Vice President for Student Life with
regard to the proper constitutional and statutory
limits on the exercise of their authority, and have
instead sanctioned the policy and the practices
described herein.

43. That the above actions by Defendants have
resulted in both the substantive and procedural due
process denial of rights, all in violation of the Fifth and
Fourteenth Amendment to the United States
Constitution.

44. That by reason of the aforesaid actions,
Defendants’ actions exhibit deliberate indifference to
and/or reckless disregard for the constitutional rights
of Plaintiffand other similarly situated students, all in
violation of the Plaintiffs constitutional rights, and as

12b

a direct and proximate result thereof, the Plaintiff
sustained severe damages in an amount in excess of
SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00).

45. That by reason of the aforesaid actions,
Plaintiff is entitled to a Permanent Injunction,
prohibiting the Defendants and their agents from
placing a hold on her academic transcript or placing
any notation of findings or sanctions against her in her
student file or upon her transcript.

46. Theacts, conduct and behavior of each of the
Individual Defendant’s was performed knowingly,
intentionally, oppressively, and maliciously, by reason
of which Plaintiff is entitled to punitive damages in a
sum in excess of SEVENTY-FIVE THOUSAN’)
DOLLARS ($75,000.00).

47. It has been necessary for the Plaintiff to
obtain the services of an attorney to prosecute this
action and Plaintiff is entitled to an award of
attorney’s fees and costs of suit incurred herein.

SECOND CAUSE OF ACTION

UNLAWFUL ARREST AND IMPRISONMENT,
UNLAWFUL SEARCH AND SEIZURE, FOURTH
AND FOURTEENTH AMENDMENT TO THE
UNITED STATES CONSTITUTION

48. Paragraphs 1 through 47, inclusive are
incorporated by reference.

49. Defendant Officers GOFF, TRAMPOSCH,
and CULVER, knew, or should have known, that the

13b

allegations made by Defendant POLEE were false, but
arrested Plaintiff for the alleged crime of Assault with

a Deadly Weapon.

50. Prior to making the arrest, Defendant
Officers GOFF, TRAMPOSCII, and CULVER did not
conduct any investigation into the claims made by
Defendant POLEE, and had no probable cause or

warrant to arrest Plaintiff.

51. Plaintiff was eventually exonerated of all
criminal charges in January 2008, but not before she
was arrested and incarcerated at the Clark County
Detention Center, causing her to lose her liberty and
causing severe psychological trauma and _ physical
injury.

52. The arrest, imprisonment, search and
seizure described above was unreasonable and in
violation of the Fourth Amendment of the United
States Constitution. As a result of these acts, Plaintiff
has suffered physical injuries, loss of community
reputation, loss of day and future income, and to incur
severe financial obligations in order to retain attorneys
to seek redress against the unlawful conduct of the
Defendants, as well as other painful injuries,
deprivation of her hberty, invasion or her privacy,
grievous mental suffering, and pain and suffering, all
in violation of 42 U.S.C. § 1983 and the Fourth and
Fourteenth Amendments to the United States
Constitution, all to her damage in an amount in excess
of SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00).

14b

53. The act, conduct and behavior of Defendant
Officer’s, individually, were performed knowingly and
intentionally, oppressively and maliciously, by reason
of which Plaintiff is entitled to punitive damages in a
sum in excess of SEVENTY-FIVE THOUSAND
DOLLARS ($75,000.00).

54. That by reason of the aforesaid actions,
Defendants’ actions exhibit deliberate indifference to
and/or reckless disregard for the constitutional rights
of Plaintiffand other similarly situated students, all in
violation of the Plaintiffs constitutional rights, and as
a direct and proximate result thereof, the Plaintiff
sustained severe damages in an amount in excess of
SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00).

55. It has been necessary for the Plaintiff to
obtain the services of an attorney to prosecute this
action and Plaintiff is entitled to an award of
attorney’s fees and costs of suit incurred herein.

THIRD CAUSE OF ACTION

BREACH OF CONTRACT

56. Paragraphs 1 through 55, inclusive are
incorporated by reference.
57. __Plaintiffhas an express and implied contract

with Defendants in connection with rights explicitly
guaranteed by UNLV pursuant to the UNLV Student
Conduct Code, NSHE Code, and the UNLV Student
Handbook.

15b

58. The actions of Defendants constitute a
breach of the express and implied contract.

59. Asaresult of the breach committed against
the Plaintiff, she has been damaged in an amount in
excess of SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00).

60. That by reason of the aforesaid actions,
Plaintiff is entitled to a Permanent injunction
prohibiting the Defendants and their agents from
placing a hold on her academic transcript, or placing
any notation of any findings or sanctions against her
in Plaintiff's student file or upon her transcript.

61. It has been necessary for the Plaintiff to
obtain the services of an attorney to prosecute this
action, and Plaintiff is entitled to an award of
attorney’s fees and costs of suit incurred herein.

FOURTH CAUSE OF ACTION

NEGLIGENCE / NEGLIGENT HIRING,
TRAINING, & SUPERVISION

62. Paragraphs 1 through 61, inclusive, are
incorporated by reference.

63. At all times material and relevant herein,
the Defendants had a duty to not violate the
Constitutional rights of their students.

64. At all times relevant herein, Defendant
UNLV had a duty not to hire individuals with a
propensity towards committing unlawful acts against
those who lawfully go about their business, and to

16b

adequately train and supervise their agents, officers,
and employees.

65. At all times relevant herein, the Defendant
UNLV had a duty to protect the public, such as
Plaintiff, from the illegal actions of their own agents,
officers, employees and others. In addition, Defendant
UNLV had a duty not to hire individuals with a
propensity towards committing unlawful acts against
the public, and to adequately train and supervise their
employees.

66. Defendants, and each of them, breached
their respective duties, and are therefore negligent and
lable to the Plaintiff, who has suffered serious
economic loss, loss of reputation, loss of daily and
future income, and to incur severe financial obligations
in order to retain attorneys, as well as other painful
injuries, deprivation of his liberty, invasion of his
privacy, grievous mental suffering, all to her damage
in an amount in excess of SEVENTY-FIVE
THOUSAND DOLLARS ($75,000.00).

67. It has been necessary for the Plaintiff to
obtain the services of an attorney to prosecute this
action, and Plaintiff is entitled to an award of
attorney’s fees and costs of suit incurred herein.

FIFTH CAUSE OF ACTION

INTENTIONAL AND NEGLIGENT
INFLICTION OF SEVERE MENTAL DISTRESS

68. Paragraphs 1 through 67, inclusive, are
incorporated by reference.

17b

69. Asa result of Defendants’ intentional and
negligent conduct and omissions, Plaintiff, suffered
and continues to suffer great mental and emotional
harm, anguish, insecurity, self-revulsion, damage to
her self-esteem, and_ self-worth, shame and
humiliation, including but not limited to: severe and
clinical depression, anxiety, loss of sleep, and change
of appetite.

70. Plaintiff has required medical and
psychological care as result of the malfeasance and
nonfeasance of Defendants. This has caused Plaintiff
to incur expenses for medical care, treatment, and
expenses incidental thereto. The total amount of
Plaintiffs damages cannot yet be fully ascertained,
and as such we respectfully ask leave of this Court to
amend Plaintiffs Complaint to insert the full amount
when such have been fully ascertained.

71. Asa result of the mental distress described
above, Plaintiff has suffered serious psychologica!
injury, loss of community reputation, medical
expenses, and to incur severe financial obligations in
order to retain attorneys to seek redress against the
unlawful conduct of the Defendants, as well as
deprivation of his liberty, invasion of his privacy, and
grievous mental suffering, all to damages in an
amount in excess of SEVENTY-FIVE THOUSAND
DOLLARS ($75,000.00).

72. The acts, conduct and behavior of the
Defendants were performed willfully, intentionally,
oppressively, fraudulently and maliciously, by reason
of which Plaintiff, is entitled to punitive damages in a
sum in excess of SEVENTY-FIVE THOUSAND
DOLLARS ($75,000.00).

18b

73. It has been necessary for Plaintiff to obtain
the services of an attorney to prosecute this action, and
Plaintiff is entitled to an award of attorney’s fees and
costs of suit incurred herein.

SIXTH CAUSE OF ACTION

INJUNCTIVE DECLARATORY RELIEF

74. Paragraphs 1 through 73 inclusive are
incorporated by reference.

75. Defendant actions of placing a hold on her
academic .sanscript, and the placing of notations of
any accusations, findings, or sanctions against her, in
Plaintiff's student file or upon her transcript, is unjust
and illegal.

76. Theharmcaused by Defendant is irreparable
and can only be mitigated by the release of the above
transcripts and omission of any notations. For that
reason, Plaintiff is entitled to an order requiring
Defendants to immediately release any holds on her
transcript, remove any notations of any disciplinary
accusations, findings or sanctions, and prohibiting
Defendants from further interfering with Plaintiffs
educational future.

77. As a result of the acts committed against
Plaintiff, she has been damaged all in an amount in
excess of SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00).

78. As a result of Defendants’ intentional
conduct, they have caused Plaintiff to incur attorney’s
fees in an amount in excess of SEVENTY-FIVE

19b

THOUSAND DOLLARS ($75.000.00) and _ thus
Plaintiff is entitled to an award of attorney’s fees.

SEVENTH CAUSE OF ACTION

CIVIL CONSPIRACY

79. Paragraphs 1 through 78 inclusive are
incorporated by reference.

80. At all times herein referred to, Defendants
conspired with each other to fraudulently take action
against Plaintiff to make false allegations about
Plaintiff, to have her arrested and charged with a
crime, and to have her punished for student conduct
code violations, all while knowing that Plaintiff had
not performed any of the acts in which they accused
her of.

81. Asa result of the mental distress described
above, Plaintiff has suffered serious psychological
injury, loss of community reputation, medical
expenses, and to incur severe financial obligatiens in
order to retain attorneys to seek redress against the
unlawful conduct of the Defendants, as well as
deprivation of her liberty, invasion of her privacy, and
grievous mental suffering, all to damages in an
amount in excess of SEVENTY-FIVE THOUSAND
DOLLARS ($75,000.00).

82. The acts, conduct and behavior of the
Defendants were performed willfully, intentionally,
oppressively, fraudulently and maliciously, by reason
of which, Plaintiff is entitled to punitive damages in a
sum in excess of SEVENTY-FIVE THOUSAND
DOLLARS ($75,000.00).

20b

83. It has been necessary for Plaintiff to obtain
the services of an attorney to prosecute this action and
Plaintiff is entitled to an award of attorney’s fees and
costs of suit incurred herein.

EIGHTH CAUSE OF ACTION

DEFAMATION, LIBEL AND SLANDER PER SE

84. Paragraphs 1 through 83 inclusive are
incorporated by reference.

85. That Defendants’ conduct described above
severely harmed the reputation and character of the
Plaintiff with the making of false statements to third
parties, both orally and in writing.

86. That Plaintiffhas suffered loss of reputation,
shame, mortification and hurt feelings as a result of
Defendants deliberate, malicious, intentional, and
oppressive conduct.

87. Asa direct and proximate result of the false
statements made by Defendants, Plaintiff has suffered
injury and damages alli in an amount in excess of
SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00).

88. Theacts, conduct and behavior of each of the
individual Defendants were performed knowingly,
intentionally, oppressively, and maliciously, by reason
of which, Plaintiff is entitled to punitive damages in a
sum in excess of SEVENTY-FIVE THOUSAND
DOLLARS ($75,000.00).

21b

89. It has been necessary for the Plaintiff to
obtain the services of an attorney to prosecute this
action, and Plaintiff is entitled to an award of
attorney's fees and costs of suit incurred herein.

NINTH CAUSE OF ACTION

MALICIOUS PROSECUTION/ABUSE
OF PROCESS

90. Paragraphs 1 through 89 inclusive are
incorporated by reference.

91. The Defendants’ conduct, described above,
resulted in the prosecution of Plaintiff by the actions
of the Defendants, without probable cause, with
malice, requiring Plaintiff to unnecessarily defend
herself to have said criminal charges dismissed, thus
violating her U.S. Constitutional Rights and State law.

92. The Defendants’ conduct, described above,
resulted in Defendants utilizing the UNLV Student
Conduct Code process as a vehicle to maliciously take
action against Plaintiff, to jeopardize Plaintiffs
educational future and career, and force her to defend
herself in said process, in violation of her U.S.
Constitutional Rights and State law..

93. Asadirect and proximate result of the above
described conduct by Defendants, Plaintiff has suffered
injury and damages all in an amount in excess of
SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00).

94. The acts, conduct and behavior of each of the
Individual Defendant’s was performed knowingly,

22b

intentionally, oppressively, and maliciously, by reason
of which, Plaintiff is entitled to punitive damages in a
sum in excess of SEVENTY-FIVE THOUSAND
DOLLARS ($75,000.00).

95. It has been necessary for the Plaintiff to
obtain the services of an attorney to prosecute this
action, and Plaintiff is entitled to an award of
attorney: fees and costs of suit incurred herein.

WHEREFORE, Plaintiff prays that this Honorable
Court: Enter judgment in Plaintiffs favor, and against
the Defendants, and each of them: (a) for
compensatory damages in an amount in excess of
SEVENTY-FIVE THOUSAND DOLLARS
($75,000.00); (b) for punitive damages each in an
amount in excess of SEVENTY-FIVE THOUSAND
DOLLARS ($75,000.00); (c) for injunctive and
declaratory relief; and (d) together with the costs and
disbursements of this action and such other attorney’s
fees pursuant to 42 U.S.C. § 1988, and further relief as
justice requires.

DATED this 1“ day of April, 2008.
THE BACH LAW FIRM, LLC

By-/s/ JASON BACH
JASON J. BACH, ESQ.
Nevada Bar No.: 7984
2620 Regatta Dr., Ste. 102
Las Vegas, NV 89128

Tel.: (702) 925-8787
Attorneys for Plaintiff

23b

APPENDIX B

JASON J. BACH, ESQ.

Nevada Bar No.: 7984

THE BACH LAW FIRM, LLC

6053 South Fort Apache Rd., Suite 130
Las Vegas, NV 89148

Tel: (702) 925-8787

Fax: (702) 925-8788

Attorney for Plaintiff

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA

K*eXK* *

CASE NO.: 2:08-cv-00417-JCM-GWF

[Filed July 11, 2008]

MEGAN KRAINSKI,
Plaintiff,
Vv.

THE STATE OF NEVADA. ex. Rel. BOARD
OF REGENTS OF THE NEVADA SYSTEM
OF HIGHER EDUCATION, on behalf of the
UNIVERSITY OF NEVADA, LAS VEGAS;

a Political Subdivision of the State of Nevada;
REBECCA MILLS, individually and as Vice
President for Student Life of the University of
Nevada, Las Vegas; RICHARD CLARK,

'
a ee a ee ee a a a a ee a

24b

individually and as Director of Student
Conduct and Residential Life of the University
of Nevada, Las Vegas; PHILLIP BURNS,
individually and as Senior Student Conduct
Officer of the University of Nevada, Las
Vegas; NANNETTE JIMENEZ, individually
and as a Student Conduct Officer of the
University of Nevada, Las Vegas; SUSAN M.
CARRASCO, individually and as Assistant
General Counse! of the University of Nevada,
Las Vegas; TYREE PINI, individually and as
Assistant Residential Life Coordinator;
LESLIE WALLENFELDT, individually and as
Residential Life Coordinator of the University
of Nevada, Las Vegas; OFFICER BRETT
GOFF, P#302, individually and as a police
officer with the University of Nevada, Las
Vegas Police Department; OFFICER L.
TRAMPOSCH, P#312, individually and as a
police officer with the University of Nevada,
Las Vegas Police Department; OF FICER J.
CULVER, P#309, individually and as a police
officer with the University of Nevada, Las
Vegas Police Department; KENYA POLEE,
individually; DOES I-XX, inclusive,

Defendants.

Nee Nee eee ee eee ii OT OO OO OO i OS i ie aes es ee Cl”

OPPOSITION TO DEFENDANTS MOTION TO
DISMISS PLAINTIFF'S COMPLAINT

COMES NOW, Plaintiff, MEGAN KRAINSKI
(hereinafter referred to as “Plaintiff’), by and through
her attorney of record, JASON J. BACH, ESQ. of THE
BACH LAW FIRM, LLC, and hereby opposes

25b

Defendants’ Motion to Dismiss Plaintiffs Complaint,
pursuant to FRCP 12(b)(6). Plaintiffs opposition is
based on the foregoing Points and Authorities,
Plaintiffs Complaint, all papers and pieadings on file
herein, and any oral argument requested from the
Court.

DATED this 10th day of July, 2008.
THE BACH LAW FIRM, LLC

By: /s/Jasond. Bach
JASON J. BACH, ESQ.
Nevada Bar No.: 7984
6053 South Fort Apache Rd., Suite 130
Las Vegas, NV 89148
Attorneys for Plaintiff

MEMORANDUM OF POINTS AND
AUTHORITIES

I.
LEGAL ARGUMENT

A. STANDARD OF REVIEW PURSUANT TO
FRCP 12(b)(1) AND 12(b)(6).

The Court’s review of a 12(b) motion is based
strictly on the contents of the Complaint. The Court
must accept the allegations as true and construe them
in the light most favorable to the Plaintiff. Abramson,
897 F.2d at 391; Love v. United States, 871 F.2d 1488
(9th Cir. 1989). In such a case, the court may accept al!
of the alleged facts, and all inferences from the alleged
facts, as true.

26b

Pursuant to Federal Rules of Civil Procedure
12(b)(1), a Court must dismiss an action, “if as a
matter of law ‘it is clear that no relief could be granted
under any set of facts that could be proved consistent
with the allegations’.” Neitzske v. Williams, 490 U.S.
109 (1989) quoting Hishon v. King & Spaulding,
467 U.S. 69, 73, 104 S.Ct. 2229 (1984); Abramson v.
Brounstein, 897 F.2d 389, 391 (9th Cir. 1990);
Gibson v. United States, 781 F.2d 1334 (9th Cir.
1986).

The Court’s review of a 12(b)(6) motion is based on
the contents of the Complaint. The Court must accept
the allegations as true and construe them in the light
most favorable to the Plaintiff. Abramson, 897 F.2d at
391; Love v. United States, 871 F.2d 1488 (9th Cir.
1989).

From reviewing Plaintiffs Complaint, it is clear
that allegations she sets forth arise to a level of
various Constitutional violations, actionable under 42
U.S.C. § 1983 and Fourteenth Amendment to the
United States Constitution. In describing the actions
of Defendants’, Plaintiffs Complaint reasonably infers
that each government Defendant participated in the
intentional denial of Plaintiffs right to due process. In
addition, Plaintiffs Complaint establishes that money
damages in excess of $75,000 were incurred as a result
of Defendants’ illegal conduct. For these reasons,
Plaintiffs Complaint is viable and should not be
dismissed.

27b

B. ELEVENTH AMENDMENT IMMUNITY DOES
NOT APPLY TO INDIVIDUAL DEFENDANTS
OR THE ABILITY OF THIS COURT TO
ENJOIN ALL DEFENDANTS.

State officials may be held personally liable for
damages under § 1983 based upon actions taken in
their official capacities. Hafer v. Melo, 502 U.S. 21
(1991). It is incorrect for a district court to interpret
Will v. Michigan Dept. of State Police, 491 U.S. 58
(1989) to mean that § 1983 does not authorize suits
against state officials for damages arising from official
acts. Hafer at 23. State executive officials are not
entitled to absolute immunity for their official actions.
Id. at 29, citing Scheuer v. Rhodes, 416 U.S. 232, 243
(1974). Even if state law requires the state to pay any
damages awarded against a state official, a § 1983
action is not “against” the state for the purposes of the
Eleventh Amendment immunity. Demery ov.
Kupperman, 135 F.2d 1139 (9" Cir. 1984).

An action will not be deemed to be against the
state, and thus barred by the Eleventh Amendment,
where the plaintiff seeks to impose personal liability
on state officials sued in their individual capacity as a
result of actions undertaken by that official which
violated plaintiffs federally protected rights. Bair v.
Krug, 853 F.2d 672 (9 Cir. 1988); Central Reserve
Life of North America Ins. Co. v. Struve, 852 F.2d
1158 (9 Cir. 1988).

Moreover, nearly 100 years ago the United States
Supreme Court cleared the way for Plaintiff's, such as
Mr. Lucey, to enforce their Constitutional Rights
against state officials through injunctive relief. Ex
parte Young, 209 U.S. 123 (1908). The Court held

28b

that injunctive relief may be obtained through the
federal courts when state officials are accused of
violating the Fourteenth Amendment:

[T]he use of the name of the State to enforce an
unconstitutional act to the injury of
complainants is a proceeding without the
authority of and one which does not affect the
State in its sovereign or governmental
capacity. . . . The officer. . . is in that case
stripped of his official or representative
character and is subjected in his person to the
consequences of his individual conduct.
Id., at 159-160.

In other words, even if a state is immune from
injunctive relief, the federal courts can put an end to
unconstitutional conduct by state officials, by enjoining
those state officials in their individual capacity. Jd.

However, the case relied upon by State Defendants’
in their Motion, Seminole Tribe of Florida v.
Florida, 517 U.S. 44 (1996), does not bar injunctive
relicf by a federal court, in a § 1983 case, against the
actual State or officials in their official capacity. The
limitations imposed on the federal courts by Seminole
Tribe, only apply against a state where Congress had
prescribed a “detailed remedial scheme for the
enforcement against a State of a statutorily created
right. . ..” Ellis v. University of Kansas Medical
Center, 163 F.3d 1186 (10" Cir. 1998), citing
Seminole Tribe, 517 U.S. at 74. However, Seminole
Tribe does not limit the federal courts ability to
enforce constitutional rights, such as Ms. Krainski’s
due process rights. See, Ellis, 163 F.3d 1186.
Additionally, § 1983 did not create a detailed remedial

29b

scheme, or any substantive rights at all, but is simply
a vehicle for bringing constituticna! claims before the
federai courts. Jd. As such, UNLV is subject to the
injunction powers of this court, as Plaintiffs claims are
constitutional in nature, not statutory.

Plaintiff has the right to bring causes of action for
money damages against the individual Defendants.
Hafer v. Melo. This court has every ability to enjoin
all Defendants from continuing to violate Plaintiffs
constitutional rights. It may be accomplished by an
order to the State university, or by an order to the
individual defendants in their individual capacity,
pursuant to Ex parte Young.

1. THE ELEVENTH AMENDMENT DOES
NOT BAR A FEDERAL SUIT AGAINST
OFFICIAL CAPACITY DEFENDANTS, AS
CONSTITUTIONAL VIOLATIONS ARE
ON-GOING.

The Ninth Circuit has held that the Eleventh
Amendment does not bar federal suits against Nevada
officials, in their official capacity, where the relief
sought is prospective in nature and is based on an
on-going violation of the plaintiffs federal
constitutional or statutory rights. Central Reserve
Life of North America Ins. Co. v. Struve, 852 F.2d
1158 (9" Cir. 1988), citing Ex Parte Young;
Charley’s Taxi Radio Dispatch Corp. v. Sida of
Hawaii, Inc., 810 F.2d 869, 874 (9" Cir. 1987). That
is certainly the case here. As alleged in Plaintiffs
Complaint, Defendants’ have made notations upon her
transcripts of the unlawful disciplinary actions taken
against Plaintiff. As such, Defendants continue to
violate Plaintiffs Fourteenth Amendment Rights,

30b

which gives this Court jurisdiction over Defendants in
their official capacity, and Defendants are not entitled
to Eleventh Amendment immunity in their official
capacity. Central Reserve Life of North America
Ins. Co. v. Struve.

C. INDIVIDUAL DEFENDANTS ARE NOT
ENTITLED TO QUALIFIED IMMUNITY AS
THEY VIOLATED PLAINTIFF'S CLEARLY
ESTABLISHED CONSTITUTIONAL RIGHTS.

A defendant is entitled to qualified immunity if the
defendant did not violate “clearly established rights” at
the time of the conduct in question. See, Harlow uv.
Fitzgerald, 457 U.S. 800, 818 (1982). Defendants
accurately point to the two-prong test established in
Saucier v. Katz, 533 U.S. 194 (2001).

The test for qualified immunity is objective. The
defendant’s actual purpose or state of mind is not
material. Whether rights were “clearly established” at
the relevant time is determined in most instances by
looking at controlling published court decisions as of
that time. See, United States v. Lanier, 520 U.S.259,
269-71 (1997) (discussing qualified immunity in
§ 1983 and Bivens cases).

While the law in this matter is clearly established
in favor of Plaintiffs, it is not necessary for a plaintiff
to show a published decision establishing the rights in
question under precisely the same circumstances as
those presented in the case in question. Some conduct
so clearly violates a person’s rights that the question
is unlikely to come before the courts for a decision. The
Supreme Court has explained in the context of both
fair warning for criminal law and qualified immunity

31b

for civil rights defendants, that “general statements of
the law are not inherently incapable of giving fair and
clear warning, and in other instances a general
constitutional rule already identified in the decisional
law may apply with obvious clarity to the specific
conduct in question, even though ‘the very action in
question has [not] previously been held unlawful.”
United States v. Lanier, 520 U.S. at 271, quoting
Anderson v. Creighton, 483 U.S. 635, 640 (1987). To
rule that until the Supreme Court has spoken, no right
of litigants in this circuit can be deemed established
before we have decided the issue would discourage
anyone from being the first to bring a damages suit in
this court; he would be certain to be unable to obtain
any damages. Burgess v. Lowery, 201 F.3d 942, 85
A.L.R.5th 719 (7th Cir. 2000) (affirming denial of

summary judgment based on qualified immunity).

In Capeoman v. Reed, 754 F.2d 1512, 1514 (9th
Cir.1985), the 9" Circuit interpreted the meaning of
Harlow’s “clearly established” rights standard. They
concluded that in the absence of binding precedent, a
court should look at all available decisional law
including decisions of state courts, other circuits, and
district courts to determine whether the right was
clearly established. Ward v. County of San Diego,
791 F.3d 1329, 1332 (9 Cir. 1986), citing Capeoman.
An additional factor is the likelihood that the Supreme
Court or the Ninth Circuit would have reached the
same result as courts that had already considered the
issue. Id., citing Capeoman at 1515.

Similarly, in Buonocore v. Harris, the Fourth
Circuit held that the Fourth Amendment prohibits
government agents executing a valid search warrant
from aiding a private individual carry out an

32b

independent search of a home for items unrelated to
those specified in the warrant. Affirming a denial of
summary judgment based on qualified immunity, the
court found that no opinion directly on point was
needed to show that the alleged conduct violated
clearly established rights. 65 F.3d 347, 356-57 (4th
Cir.1995). The Fourth Circuit quoted another Seventh
Circuit case on this issue: “the absence of [many]
reported case[s] with similar facts demonstrates
nothing more than wide-spread compliance with
well-recognized constitutional principles.” Jd. at 357,
quoting Eberhardt v. O’Malley, 17 F.3d 1023, 1028
(7th Cir.1994).

The absence of such cases, however, does not mean
a government employee is entitled to immunity for
such conduct. “There has never been a section 1983
case accusing welfare officials of selling foster children
into slavery; it does not follow that if such a case arose,
the officials would be immune ... because no previous
case had found liability in those circumstances.” K.H.
ex rel. Murphy v. Morgan, 914 F.2d 846, 851 (7th
Cir.1990). The controlling question is whether a
reasonable government official would have understood
at the time of the conduct in question that the conduct
violated the Plaintiffs’ constitutional rights.

In this matter, however, the United States
Supreme Court has clearly established the law, by way
of their decision in Goss v. Lopez, 419 U.S. 574 (1975).

[A] student’s legitimate entitlement to a public
education [is] a property interest which
protected by the Due Process Clause and which
may not be taken away for misconduct without

33b

adherence to the minimum procedures required
by that Clause. Id.

Numerous other cases have also expressed the due
process rights of public university students. Dixon uv.
Alabama State Board of Education, 294 F.2d 150
(5" Cir. 1961), cert. denied, 368 U.S. 930 (1961);
Marin v. University of Puerto Rico, 377 F. Supp.
613 (D.P.R. 1974); Crook v. Baker, 584 F.Supp. 1531,
1556 (E.D. Mich. 1984); Gabrilowittz v. Newman, 582
F.2d 100 (1* Cir. 1978).

The Fourteenth Amendment protection that is
owed to Plaintiff has been clearly established as far
back as Dixon v. Alabama State Board of
Education 1961, or at least since Goss v. Lopez in
1975. The Defendant government officials in this case
knew that Plaintiff was entitled to due process, and
knew what “due process” was, but deliberately violated
Plaintiffs constitutional rights by taking discipline
action against her without adequate notice or a
hearing. As a result, Defendants violated Plaintiffs
“clearly established rights” and are not entitled to
qualified immunity. Harlow; Saucier.

D. PLAINTIFF HAS ADEQUATELY STATED A
CLAIM FOR HER CAUSE OF ACTION
PURSUANT TO 42 U.S.C. §1983.

1. PLAINTIFF HAS COMPLIED WITH FRCP
8(a).

FRCP 8(a) states, in relevant part: “A pleading
which sets forth a claim for relief, whether an original
claim, counter-claim, cross-claim, or third-party claim,

34b

shall contain . . . (2) a short and plain statement of the
claim showing that the pleader is entitled to relief. . .”

Plaintiffs Complaint provides detailed explanations
of the allegations being made against Defendant
UNLYV, as well as the individual Defendants’. The due
process allegations, bought pursuant to 42 U.S.C.
§ 1983 and the Fourteenth Amendment, detail the lack
of notice, procedural defects, and lack of legitimate
state interest which constitute a lack of due process.
Plaintiffs Complaint also details the false arrest and
unlawful seizure committed by Defendants.

Moreover, Defendants’ have been provided ample
notice of Plaintiffs state law allegations. Each of
Plaintiffs causes of action incorporates the general
factual allegations in paragraphs 23-38 of Plaintiffs
Complaint.

2. PLAINTIFF HAS PROPERLY ALLEGED A
DE FACTO POLICY.

This is a case where Defendants’ have policies and
procedures in place to adequately provide students,
such as Plaintiff, procedural and substantive due
process, but chose to ignore those policies and
procedures and enact their own “de facto policy.”

The term “policy” “generally implies a course of
action consciously chosen from among _ various
alternatives.” City of Oklahoma v. Tuttle, 471 U.S.
808, 823, 105 S.Ct. 2427, 2436, 85 L.Ed.2d 791 (1985).
Monell v. Department of Social Services, 436 U.S.
658 (1978), imposes liability for injuries resulting from
such a choice, if a Constitutional deprivation was
“visited pursuant to governmental ‘custom’ even

35b

though such a custom has not received formal approval
through the body’s official decision-making channels.”
Moneil, 436 U.S. at 690-91, 98 S.Ct. at 2035-36. This
is also referred to as a “de facto policy.”

As explained in Oklahoma City v. Tuttle, once a
de facto policy is established, “it requires only one
application ... to satisfy fully Monell’s requirement
that the government be held liable only for
constitutional violations resulting from the
government's official policy.” Jd., at 822

“(Ijf ... officials know or should know of the
particular vulnerability, then the Fourteenth
Amendment imposes on them an obligation not to act
with reckless indifference to that vulnerability.”
Redmen v. County of San Diego, 942 F.2d 1435 (9"
Cir. 1991); quoting, Colburn v. Upper Darby
Township, 838 F.2d 663, 669 (3rd Cir.1988), cert
denied, 489 U.S. 1065, 109 S.Ct. 1338, 103 L.Ed.2d 808
(1989)

“A person deprives another ‘of a constitutional
right, within the meaning of section 1983, if he does an
affirmative act, participates in another’s affirmative
acts, or omits to perform an act which he is legally
required to do that causes the deprivation of which
[the plaintiff complains).” Leer v. Murphy, 844 F.2d
628, 633 (9th Cir.1988); quoting Johnson v. Duffy,
588 F.2d 740, 743 (9th Cir. 1978)

Plaintiff needs not show that individual Defendants
and UNLV maintained a policy affirmatively
encouraging officials, or each other, to violate the
Constitutional rights of its students; “ govern
ments may be liable under Section 1983 for

36b

constitutional injuries inflicted by their employees if
their failure adequately to guard against such injuries
through training and supervision rises to the level of
‘deliberate indifference’ to the constitutional rights of
citizens who come in contact with those employees.
Doe By and Through Knackert v. Estes, 926
F Supp. 979, 987 (D.Nev. 1996); citing, City of Canton
at 388.

Plaintiffs Complaint adequately alleges that
Defendants’ actions were taken pursuant to such a “de
facto policy.” As such, Plaintiffs cause of action is
sufficiently plead.

3. PLAINTIFF HAS PROPERLY ALLEGED
THAT DEFENDANTS HAVE VIOLATED
HER CONSTITUTIONAL RIGHT TO DUE
PROCESS.

The United States Supreme Court has established
that students have a property interest in their
education. Goss v. Lopez, 419 U.S. 574 (1975)

|A] student’s legitimate entitlement to a public
education [is] a property interest which is
protected by the Due Process Clause and which
may not be taken away for misconduct without
adherence to the minimum procedures required
by that Clause. Id

The first case to recognize a university student's
right to due process in a disciplinary hearing was
Dixon v. Alabama State Board of Education, 294
F.2d 150 (5“ Cir. 1961), cert. denied, 368 U.S. 930
(1961). In this case from the civil rights era, Alabama
State College expelled nine black students, without

37b

notice and without the benefit of a hearing, (/d., 158)
after the students conducted a sit-in demonstration at
a pubiic courthouse lunch grill that refused service to
blacks. Id., 152, n.3. The Fifth Circuit Court of Appeals
held that due process required notice and a hearing
before a student at a tax-supported college can be
expelled for misconduct. /d., 158.

Furthermore, the Court made clear that a state
institution may not circumvent the fundamental night
to due process by conditioning a grant of admission
upon students’ agreeing to give up their constitutional
right to due process. Jd., 156, citing Slochower v.
Board of Educ., 350 U.S. 551, 555 (1956). The school
must establish some reasonable grounds for its
disciplinary actions and must do so procedurally
through “fundamental principles of fairness.” /d., 157.
The court would test fairness by examining the
sufficiency of the hearing and the preceding notice. /d.,

158-159.

The Dixon court broadly defined the notice and
hearing required in cases of student expulsion:

[AJn opportunity to hear both = sides in
considerable detail is best suited to protect the
rights of all involved. This is not to imply that a
full-dress judicial hearing, with the nght to
cross-examine witnesses, is required. Id., 159.

More than a decade later, the federal District Court
for the District of Puerto Rico took due process a step
further. In Marin v. University of Puerto Rico, 377
F. Supp. 613 (D.P.R. 1974) the court held that students
are entitled to:

38b

(1) adequate advance notice of

(a) the charges,

(b) the specific, previously promulgated
regulations under which the charges
are brought, and

(c) the evidence against the student;

(2) a full, expedited evidentiary hearing

(a) presided over by an-= impartial,
previously uninvolved official,

(b) the proceedings of which are
transcribed, at which the student

(c) can present evidence and

(d) cross-examine opposing witnesses,

(e) with the assistance of retained

counsel.

(3) a written decision by the presiding official
encompassing

(a) findings of fact,

(b) the substantial evidence on which the
findings rest, and

(c) the reasons for the — official’s
conclusion. [d., 623

The Marin court held that these due process
protections must be guarded most scrupulously when
the university’s action may damage the student’s
standing in the community, or may impose a stigma or
“mark on one’s record that may well preclude further
study at any public and many private institutions and
limit the positions one can qualify for after
termination of one’s studies.” /d., 622, citing Roth, 408

39b

U.S. 573. To date, Marin marks the outer limit of
rights recognized for students.

Until the United States Supreme Court’s Gass v.
Lopez, 419 U.S. 565 (1975) decision in 1975,
jurisdictions remained split as to whether students
were entitled to any due process by public educational
institutions. In Goss, the Court set aside the summary
10-day suspensions of nine high school students
charged with various acts of disruptive conduct during
school hours. /d. “At the very minimum,” the Court
held, due process required notice and an informal
hearing prior to the students’ suspension. Id., 579
“(Djue process requires, in connection with a
suspension of 10 days or less, that the student be given
oral or written notice of the charges against him and,
if he denies them, an explanation of the evidence the
authorities have and an opportunity to present his side
of the story.” Jd. Had the suspension exceeded 10 days
the Court might have required “more formal
procedures.” Id., 584. The Court concluded that the
adequacy of the notice and the nature of the hearing
sufficient to satisfy due process would vary according
to an “appropriate accommodation of the competing
interests involved.” /d., 579.

A landmark decision, Goss opened the gates for
cases brought by students at all educational levels. In
one example of Goss’s application, Crook v. Baker
584 F. Supp. 1531, 1556 (E.D. Mich. 1984) the federal
District Court for the Eastern District of Michigan
held that a university student was entitled to notice
and a hearing before the University of Michigan could
rescind a graduate’s master’s degree on the grounds
that he had fabricated data underlying his thesis. Id.

40b

After Goss, schools could no longer deny students their
procedural due process, and expect to get away with it.

a. Plaintiff Has Alleged That She Was Not
Provided with Notice, Thus Violating Her
Fourteenth Amendment Rights.

The Goss Court determined that high school
students facing the deprivation of a property right by
suspension from school must, at a minimum. “be given
some kind of notice and afforded some kind hearing.”
419 U.S. 579 (emphasis in original). In an earlier
decision, the Supreme Court had established that “|a]n
elementary and fundamental requirement of due
process ... is notice reasonably calculated, under all the
circumstances, to apprize interested parties of the
pendency of the action and afford them an opportunity
to present their objections.” Mullane v. Central
Hanover Trust Co. , 339 U.S. 306, 314 (1950); see also
Memphis Light, Gas & Water Div. v. Craft, 436
U.S. 1, 13 (1978). Applying that standard in Goldberg
v. Kelly, 397 U.S. 254, 268 (1970) (fairness in some
cases may require more than seven days’ notice of the
termination of welfare benefits) the Supreme Court
held that a few days notice is inadequate for the
termination of welfare benefits. Lower courts have
specifically held that notice of five days or less for an
employment termination hearing is insufficient notice.
Walker v. U.S., 744 F.2d 67, 70 (10th Cir.1984) (five
days’ notice to a public employee insufficient pre-
termination notice); Wagner v. Little Rock School
District, 373 F.Supp. 876 (E.D.Ark. 1974) (one day
inadequate to notify a school teacher of her
termination hearing).

41b

In a case involving a private college, the United
States District Court for the District of Vermont
reversed Middiebury College’s one year suspension of
a student, holding that the school deviated from its
published notice policy by informing the accused
student of only one of the two charges that had been
brought against him. Fellheimer, 869 F. Supp. at
246-47. The court held that the college must “state the
nature of the charges with sufficient particularity to
permit the accused party to meet the charges,” as
expressed in the school’s policy. Jd.

What constitutes adequate notice may be difficult
to measure, but colleges and universities are clearly at
an advantage over a student who may have limited or
no resources with which to prepare for a hearing. The
guiding principle should be that students have ample
time to secure and obtain the advice of counsel, review
and investigate the claims against them, and prepare
a defense to the accusations made against them.
Considering the limited resources of students, a notice
of fewer than ten working days likely does not allow an
accused student time to adequately defend himself.

Plaintiff has alleged, that despite the UNLV
Student Conduct Code in place, “Defendants UNLV,
MILLS, CLARK, BURNS, JIMENEZ, and CARRASCO
failed to provide Plaintiff with proper notice of the
formal hearing, violating her U.S. Constitutional
Rights, the UNLV Student Conduct Code, and the
Nevada System of Higher Education (NSHE) Code.”
Plaintiffs Complaint, paragraph 33. Plaintiffs
allegation of improper notice is sufficient to put
Defendants on notice pursuant to FRCP 8&(a).

42b

b. Plaintiff Has Alleged That She Was
Disciplined, Despite Defendants
Knowledge That She Was Innocent, Thus
Violating Her Fourteenth Amendment
Rights.

In addition to the procedural protections outlined
above, the Due Process Clause of the Fourteenth
Amendment provides a guarantee against arbitrary
decisions that would impair appellants’
constitutionally protected interests. Dixon, 294 F.2d
at 157. This guarantee of “substantive due process”
protects certain fundamental “substantive” rights we
all share. The Supreme Court has said of substantive
due process that, “the Due Process Clause guarantees
more than fair process, and the ‘liberty’ it protects
includes more than the absence of physical restraint.”
Washington v. Glucksberg, 521 U.S. 702, 719 (1997).
It provides “heightened protection against government
interference with certain fundamental rights and
liberty interests.” Id. at 720. As the court stated in
Dixon, “the governmental power to expel the plaintiffs
... 1s not unlimited and cannot be arbitrarily exercised.
Admittedly, there must be some reasonable and
constitutional ground for expulsion or the courts would
have a duty to require reinstatement.” Dixon, 294
F.2d at 157. Under principles of substantive due
process, students cannot be disciplined for
constitutionally protected actions, or for actions which
the government has no legitimate interest in
punishing.

In addition to protecting such fundamental rights
as free speech, substantive due process assures that
any government action bear, at a minimum, a rational
relationship to a legitimate governmental interest. In

43b

Alabama & Coushatta Tribes v. Big Sandy School
District, 817 F.Supp. 1319 (£.D. Tex. 1993), the
federal District Court for the Eastern District of Texas
provided two theories upon which a_ successful
substantive due process claim may be made. “If the
Suspensions were patently unreasonable or
disproportionate to the offense, the [students] would be
entitled to relief,” or, if there was a “substantial
departure from academic norms,” the student would
also be entitled to relief. Jd. at 1335.

Plaintiffs Complaint explicitly states that
Defendants retaliated against her for her actions
against a star athlete and found her responsible for
various actions despite no evidence ever being
presented.

35. Despite the fact that no evidence was
ever presented to support any of the allegations
made against Plaintiff, Defendants UNLV,
MILLS, CLARK, BURNS, JIMENEZ, and
CARRASCO found Plaintiff to be “Responsible”
of said charges, completely ignoring the
evidence that exonerated Plaintiff, forever
tarnishing the educational transcript and record
of Plaintiff, as well as causing severe
psychological and physical injuries, all in
violation of her U.S. Constitutional Rights, the
UNLV Student Conduct Code, and the Nevada
System of Higher Education (NSHE) Code.

36. Plaintiff filed a timely appeal of
Defendants decision. However, Defendants
UNLV, MILLS, CLARK, BURNS, JIMENEZ,
and CARRASCO again ignored the facts and
dismissed the appeal, all in violation of her U.S.

44b

Constitutional Rights, the UNLV Student
Conduct Code, and the Nevada System of
Higher Education (NSHE) Code.

37. Defendants have taken said actions
against Plaintiff in retaliation for her making a
complaint against a star athlete, and further
retaliating against her for asserting her rights
pursuant to the U.S. Constitutional Rights, the
UNLV Student Conduct Code, and the Nevada
System of Higher Education (NSME) Code.

These acts by the Defendants were taken without
a legitimate state interest and thus violate the
Plaintiffs substantive due process rights.

c. Plaintiff Has Alleged That Defendants’
Ignored Their Own Due Process
Safeguards, Thus Violating Her
Fourteenth Amendment Rights.

It is not enough for a school to go through the
motions of enacting a student conduct code. For any
such code to have credibility, the institution must
abide by it. In Lightsey v. King, 567 F.Supp. 645
(E.D.N.Y. 1983) a student was given a grade of “zero”
for cheating, even after the institution’s Honor Board
found him “not guilty” of the allegations. The court
held that “there was no difference between failing to
provide a due process hearing and providing one but
ignoring the outcome. By holding the Honor Board
hearing and then disregarding its result, the Academy
violated Lightsey’s right to due process.” Jd. At 649.

Courts review the disciplinary decisions of schools
to ensure that they are not arbitrary and capricious,

45b

and that the process is conducted with basic fairness.
Coveney v. Pres. of Coll. ef the Hoty Cross, 445
N.&.2d 136, 138 (Mass. 1983); Ahlum ov.
Administrators of the Tulane Educ. Fund, 617 So.
2d 96, 98-99 (La. Ct. App. 1993); Psi Upsilon of
Phila. v. University of Pa., 591 A.2d 755, 760 (Pa.
Super. Ct. 1991); Anderson, 1995 WL 813188, at
* 4-*5: Cloud v. Trustees of Boston Univ., 720 F.2d
721, 725 (1st Cir. 1983).

In Anderson v. Mass. Inst. Of Tech., the
Massachusetts Superior Court went so far as to adopt
a rule that the court may intervene in the student-
school relationship when the student demonstrates
that the school’s action was arbitrary and capricious,
when the school failed to follow its own disciplinary
rules, or when the school did not afford the student
with a hearing that was fundamentally fair.
Anderson, 1995 WL 813188, at * 4. “Such hearings at
the very least should provide the student with written
notice of the charges against him or her; a written
description of the evidence upon which the charges are
based; the names of the witnesses which the university
intends to call at the hearing; an unbiased disciplinary
committee or tribunal; an opportunity to be heard and
present witnesses in his behalf; and the nght to
confront and controvert the evidence presented by the
university.” Id.

It is fundamentally unfair when a large public
university, such as Defendant’, publishes a Student
Conduct Code, distributes that code to the all of its
students, publishes that code on its web site, holds its
students accountable for abiding by that code, but then
the university chooses to repeatedly ignore its own
rules of due process as prescribed by the code.

46b

Plaintiffs Complaint specifically alleges that
Defendants’ had these policies and procedures in place,
via their Student Conduct Code and Nevada System of
Higher Education (NSHE) Code, but those to ignore
them. Plaintiffs Complaint, paragraphs 34.

4. PLAINTIFF HAS PROPERLY ALLEGED A
VIOLATION OF HER FOURTH AND
FOURTEENTH AMENDMENT RIGHTS TO
UNLAWFUL ARREST AND SEIZURE.

Police officers have the power to arrest citizens
without a warrant if they have probable cause. See
Atwater v City of Lago Vista, 532 US 318, 322
(2001). A citizen who is arrested without probable
cause can bring a civil action against the officer under
42 USC § 1983 for false arrest. A false arrest is a
violation of the Fourth Amendment right against
unreasonable seizure of persons. Hand v Gary, 838
F2d 1420, 1427 (5 Cir 1988) (“The Fourth and
Fourteenth Amendments guard against arrest without
probable cause.”).

Under § 1983, citizens may seek redress for
violations of their constitutional rights by state or local
officials The statute guarantees that “[e]very person
who, under color of any statute, ordinance, regulations,
custom or usage, or any State or Territory...subjects
...any...person...to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured. 42 USC
§ 1983 (2000). A § 1983 action has two essentia!
elements: that the alleged injury was committed by a
person acting under color of state law, and that this
conduct deprived the person of a right “secured by the
Constitution and the laws” ofthe United States. Flagg

47b

Brothers, Inc. v Brooks, 436 US 149, 155-56 (1978)
(holding that a private business’s action as permitted
under New York Uniform Commercial Code was not
“under color or state law” as required for a § 1983
claim). The primary purpose of § 1983 are “to deter
state actors from using the badge of their authority to
deprive individuals of their federally guaranteed nghts
and to provide relief to victims if such deterrence
fails.” Wyatt v Cole, 504 US 158, 161 (1992), citing
Carey v Piphus, 435 US 247, 254-57 (1978). Thus,
this broad remedy protects citizens against the
violation of any federal right by state officials.

Unconstitutional false arrest is a cognizable claim
under § 1983, and is in fact one of the most common
§ 1983 claims brought against police officers (From
1989-1993, excessive force issues were the most
common in § 1983 claims against police at 24 percent,
and false arrest claims were the second most common
at 22 percent. Forty percent of cases against the police
involved both excessive force and false arrest.
Scarborough and Hemmens, 21 T Jefferson L Rev at
11). An illegal arrest is an unreasonable seizure under
the Fourth Amendment (See Hand v Gary, 838 F2d
1420, 1427 (5" Cir 1988), quoting Thomas v Sams,
734 F2d 185, 191 (5 Cir 1984) (“The right to be free
from illegal arrest plainly enjoys [constitutional]
protection.”); Patzig v O’Neil, 577 F2d 841, 848 (3d
Cir 1978) (“Clearly, an arrest without probable cause
is a constitutional violation actionable under § 1983.”)),
which protects “persons, houses, papers, and effects
against unreasonable searches and seizures” (US
Const Amend IV (emphasis added)). This guarantee
applies to the states through the Due Process Clause
of the Fourteenth Amendment. See Monroe v Pape,
365 US 167, 171 (1961).

48b

Actions for unconstitutional false arrest generally
parallel the common law action of false arrest or false
imprisonment. See City of Newport v Fact Concerts,
Inc., 453 US 247, 258 (1981) (One important
assumption underlying the Court’s decision in this
area [tort liability under § 1983] is that members of
the 42d Congress were familiar with common law
principles...and that they likely intended these
common-law principles to obtain, absent specific
provisions to the contrary.”) At common law, the
elements of a false arrest claim were (1) the detention
of the plaintiff, and (2) the unlawfulness of the
detention. See Winn & Lovett Grocery Co. v Archer,
126 Fla 308, 171 S 214, 218 (1936) (“[T]o recover for
false arrest of the person, it must be shown that the
restraint was unreasonable and such as was not
warranted by the circumstances.”). See also VorholE v
Vorholt, 111 W Va 196, 160 SE 916, 917-18 (1931)
(“The gist of an action for false imprisonment is the
illegal detention of a person without lawful process or
by an unlawful execution of such process.”); Garrity v
Fleming, 121 Kan 42, 245 P 1054, 1055 (1926) (“False
arrest or imprisonment is any unlawful physical
restraint by one of another’s liberty, whether in prison
or elsewhere.”).

Police officers may make arrests without a warrant,
but the lawfulness of that arrest turns on whether
there was probable cause. United States v Watson,
423 US 411, 417 (1976). For the purposes of a false
arrest claim, probable cause exists where the officer
had “reasonably trustworthy information” of facts and
circumstances that would lead a “prudent man” to
believe that an offense had been committed. Karr v
Smith, 774 F2d 1029, 1031 (10“ Cir 1985) (discussing
when an officer has probable cause to make an arrest,

49b

including the “fellow officer” rule that allows probable
cause to be determined according to the collective
information possessed by all officers involved).
Probable cause has been described by the Supreme
Court as a “practical, nontechnical” requirement that
balances the competing interests of effective law
enforcement and the protection of citizens’ rights.
Brinegar v United States, 338 US 160, 176 (1949).
In practical terms, a court determines whether there
was probable cause by examining the circumstances of
the arrest and deciding whether the “historical facts”
available at the time of the arrest, “viewed from the
standpoint of an objectively reasonable police officer,
amount to...probable cause.” Ornelas v United
States, 517 US 690, 696 (1996) (stating that probable
cause is not a “finely-tuned standard” but instead is a
fluid concept that depends on the particular
circumstances of a situation.).

For the purposes of a § 1983 action, probable cause
does not depend upon what the magistrate found at
the preliminary hearing or arraignment. Whitley v
Seibel, 613 F2d 682, 685 (7" Cir 1980) (explaining
that a court will assess the presence of probable cause
in a § 1983 false arrest action using a “reasonable man
standard” regardless of the magistrate’s ruling). If a
magistrate determines that no probable cause existed
to hold the suspect for the crime, that does not
automatically make the officer liable in a § 1983
action. The question is whether a reasonable office
would have believed there was probable cause at the
time of the arrest, regardless of what the magistrate
eventually found at the probable cause hearing, or
what the grand jury found at the arraignment. Id.

50b

The Ninth Circuit places the burden of proof for
probable cause on the defendant. Dubner v City and
County of San Francisco, 266 F3d, 959, 965 (9 Cir
2001) (explaining that the arresting officer has the
burden of showing probable cause once the plaintiff
makes a prima facie case of unlawful arrest.). The
initial burden is on the plaintiff to establish an
invasion of his rights, that is, an illegal arrest, and the
plaintiff can make a prima facie case, “simply by
showing that the arrest was conducted without a valid
warrant.” Dubner, 266 F3d at 965. Once the plaintiff
makes a prima facie case, the burden shifts to the
defendant to produce evidence of probable cause. Id.
An arrest made without a warrant is presumptively
unlawful if the defendant “is unable to or refuses to
come forward with any evidence that the arresting
officers had probable cause.” Id.

Thus, the defendant bears the burden of
production, and must introduce enough evidence on
the issue of probable cause so that the issue can be
decided by the factfinder rather than on summary
judgment.

The Ninth Circuit advances a policy rationale-that
the defendant officers should bear the burden of
production because they have the best access to the
evidence that would tend to prove or disprove probable
cause. Dubner, 266 F3d at 965 (“This minimal burden
shifting forces the police department, which is the
better position to gather information about the arrest,
to come forward with some evidence of probable
cause.”). Thus, the Ninth Circuit places the burden of
production on the defendant officers because they, not
the plaintiffs, have the best access to the information

5lb

and can most cost-effectively produce this evidence at

trial. Id.

Plaintiff was arrested by Defendants on a charge of
felony assault with a deadly weapon. Defendants
wrongly assert that Plaintiff was not exonerated of the
charges against her. The minutes of the Las Vegas
Justice Court, which were attached as Exhibit 1] to
their Motion, clearly show that Plaintiff was never
adjudicated “guilty” of any crime, and that the charges
against her were “dismissed.” No judge ever made any
finding that the Defendant Officers had any probable
cause at the time of Plaintiffs arrest. To the contrary,
the charge was later amended to a misdemeanor
disorderly conduct, and then dismissed. It is
impossible for Defendants to meet their burden
pursuant to Dubner on a motion to dismiss. Plaintiffs
Complaint is properly plead, and must proceed to trial.
See Id.

E. PLAINTIFF’S STATE CLAIMS EACH
SUFFICIENTLY ALLEGE A PROPER CAUSE
OF ACTION.

1. BEACH OF CONTRACT.

Courts have held that schools may not deviate from
the express due process protections established in
their student conduct codes, whether they are public or
private, as such deviations would violate the implied
contractual interests of the student. Tedeschi v.
Wagner College, 404 N.E. 2d 1302 (N.Y. 1980).

To understand whether a contract exists between
a student and an institution, one must examine the
elements of a contract. A contract requires that there

52b

be a bargain which includes both a manifestation of
mutual assent to the exchange and “consideration.”
Restatement (Second) of Contracts §17(1). In contract
law parlance, consideration is the returned promise or
performance bargained for. /d. For example, a student
pays tuition in consideration for an education. An
institution provides education in consideration for
tuition.

The terms of a contract need not be fully expressed
and contained within a formal document, but may be
implied by law or from the parties’ conduct or other
evidence of mutual assent. 3A. Corbin Contracts
§ 541 AT 97 (1960); See also Wagenseller v.
Scottsdale Memorial Hospital, 710 P.2d 1025, 1036
(Ariz. 1985) (opinion superseded by statute). There are
two types of implied contracts, implied-in-fact and
implied-in-law. Wagenseller, 710 P.2d at 1036. An
implied-in-fact contract is one that is inferred from the
statements or conduct of the parties. /d. “It is not a
promise defined by the law, but one made by the
parties, though not expressly.” Jd. Student conduct
codes, for example, are implied-in-fact contracts. In
contrast, an implied-in-law duty arises when the
contract is silent, but the law requires that a duty be
imposed even though the parties may not have
intended it. Jd., citing 1 A. Corbin, supra note 21, §17,
at 38.

A contractual relationship begins when the
institution accepts the student’s application for
admission. Curtis J. Berger & Vivian Berger,
Academic Discipline: a Guide to Fair Process for
the University Student, 99 Colum. L. Rev. 289,
318-19 (1999). The effect of the acceptance is to make
an irrevocable offer to the successful applicant, usually

53b

for a limited period time, for a seat in the entering
class. By making a deposit befcre tie offer expires, the
applicant extends the offer until the beginning of the
school year. Before classes start, the applicant will
arrive on campus and register, thereby becoming an
enrolled student. If the student is a degree candidate,
he or she expects to be offered a curriculum which, if
completed satisfactorily, will lead to the degree. The
student further expects that the school will treat him
or her fairly, including not being subjected to arbitrary
grading or dismissal, extreme tuition hikes, or a
sizable escalation of the degree requirements. These
expectations are implied-in-law terms of the contract
the student enters into with the institution. Though
not explicitly spelled out, they are essential to the
student’s ability to benefit from the bargain he entered
into with the institution, and are thus implied (by law)
as part of the contract. Payment of a student’s tuition
constitutes consideration for these expectations. Id.

In return, the school expects payment of tuition and
fees and compliance by the student with a set of rules,
both academic and non-academic, as a member of the
university community. The school’s expectations, like
those of the student, are implied-in-law terms of the
contract. These mutual understandings and
expectations form the essence of a contractual
relationship. /d.

An _ additional, and essential, part of the
student-university relationship is the implied-in-fact
contract created by a written student conduct code.
Usually issued annually, the student conduct code is
one of the primary documents used by the school to
describe to students the academic and non-academic
requirements and limitations placed upon them. The

D4b

student conduct code puts students on notice that their
continued enrollment is subject to their obedience of
the school’s rules, and also informs them of the
procedures to be followed in the event of any alleged
disobedience. The written code provides the terms and
conditions to be followed by both the school and the
student, thus creating an implied-in-fact contract
between the school and the student.

In Tedeschi v. Wagner College, 404 N.E. 2d 1302
(N.Y. 1980) a private college suspended a part-time
student because of her alleged disruptive and abusive
conduct during and outside class. The student filed
suit seeking monetary damages and reinstatement in
the college. Id., 1304. She alleged that the school had
not given her a hearing or any opportunity to defend
herself. Jd. The New York state trial court entered
judgment for the defendant, holding that the United
States Constitution did not apply because the private
college was not “state involved” and because the
school’s informal procedure was carried out in good
faith and was not arbitrary. Jd. After a split Appellate
Division affirmed, the New York Court of Appeals
reversed, ordering that the student be conditionally
reinstated. Jd., 1307.

The court pointed to a college brochure, “1976-1977
Guidelines of Wagner College,” which outlined
Wagner's procedure for adjudicating academic and
non-academic suspension or dismissal. Jd., 1304. The
college had failed to convene the Student-Faculty
Hearing Board, which the guidelines required, prior to
suspending the student. /d., 1306. On appeal, she
argued that the student-private college relationship is
contractual and that an implied term of the contract is
that the school will observe its own rules. /d., 1305.

55b
In short, New York’s highest court held:

Whether by analogy to the law of associations,
on the basis of a supposed contract between
university and student, or simply as a matter of
essential fairness in the somewhat one-sided
relationship between the institution and the
individual, we hold that when a university has
adopted a rule or guideline establishing the
procedure to be followed in relation to
suspension or expulsion that procedure must be
substantially observed. Jd., 1306. (emphasis
added).

Since Tedeschi, a number of other courts have
required private schools to act in accordance with their
published policies. Fellheimer v. Middlebury Coll.,
869 F. Supp. 238, 244 (D. Vt. 1994) (college breached
its contractual duty when it failed to put student on
notice of all charges against him); Holert v. Univ. of
Chi., 751 F. Supp. 1294, 1301 (N.D. Ill. 1990) (student
is entitled to the procedural safeguards that the school
agreed to provide); Schaer v. Brandeis Univ., 735
N.E.2d 373, 381 (Mass. 2000) (a university should
foliow its established rules); Anderson v. Mass. Inst.
of Tech., 1995 WL 813188, *1, *4 (Mass. Super. 1995)
(courts may intervene when school’s action was
arbitrary and capricious). For example, in Fellheimer
v. Middlebury College, the United States District
Court for the District of Vermont held that Middlebury
College was contractually bound to provide students
with the procedural safeguards and rights it promised
in its publications. 869 F. Supp. at 241. To deviate
from those published procedures would make the
hearing fundamentally unfair. Jd., 246.

56b

In addition, a university’s suspension or other
punishment of a student without good cause, violates
the covenant of good faith and fair dealing, which is an
implied-in-law term of the contract. See 3 A. CORBIN,
supra note 17, § 541 at 97. See also 5 S. WILLISTON,
THE LAW OF CONTRACTS § 670 at 159 (3d ed. 1961);
Wagenseller, 710 P.2d at 1038, citing Restatement
(Second) of Contracts § 205; Savoca Masonry Co.
v. Homes & Son Construction Co. , 542 P.2d 817, 821
(Ariz. 1975). The covenant of good faith and fair
dealing requires that neither contracting party do
anything that will injure the right of the other to
receive the benefits of their agreement, See
Wagenseller, 710 P.2d at 1038, citing Comunale v.
Traders & General Insurance Co., 328 P.2d 198,
200 (Cal. 1958); Fortune v. National Cash Register
Co., 364 N.E.2d 1251, 1257 (Mass. 1977) in this case
the right of the student to receive an education, and
the right of the university to educate others. It imposes
on the school a good faith duty, at a minimum, to
substantially adhere to its published disciplinary
procedures. In certain circumstances, breach of
contract, including breach of the covenant of good faith
and fair dealing, may provide the basis for a tort claim.
See Id. at 1038-39, citing Noble v. National
American Life Insurance Co., 624 P.2d 866, 868
(Ariz. 1981); Seamen’s Direct Buying Service v.
Standard Oil Co. of California, 686 P.2d 1158 (Cal.
1984); Wallis v. Superior Court, 207 Cal.Rptr. 123
(1984); Gates v. Life of Montana Insurance Co. , 638
P.2d 1063 (Mont. 1982).

In Napolitano v. Trustees of Princeton
University, 453 A.2d 279 (N.J. Super. Ct. Ch. Div.
1982), a New Jersey state court held that a university
disciplinary hearing, which resulted in the withholding

57b

of the student’s degree for one year, failed to compiy
with the university’s own rules when the student was
not timely informed that she had the right to
cross-examine witnesses. The court ordered the
disciplinary cominittee to rehear the matter and, at
that hearing, to allow the plaintiff to call any
witnesses she wished and to cross-examine any
witnesses presented against her, as the school rules
provided. Id. , 281-82.

Princeton had not refused to allow the student to
cross-examine adverse witnesses, but had failed to
inform her in timely fashion that she had such a right.
Id., 281. While the term “good faith” was not used by
the court, the court appears to have been saying that
the university had a good faith contractual duty to
timely inform the student that she had a right to
cross-examine witnesses, in addition to its duty to
protect the right as expressly stated in the student
handbook.

Another issue to be considered is the bargaining
strength of the contracting parties. The contract
between a student and a school is almost always
prescribed by the institution, with the student having
virtually no bargaining power. Contracts of adhesion
create one party that has no bargaining power or
ability to participate in the drafting of the contract,
making that party weaker. The Restatement of
Contracts, dealing with standardized agreements,
allows courts to consider the “reasonable expectations”
of the weaker party. Restatement (Second) of
Contracts, §211. Standardized Agreements.
Moreover, if an entity performs a service of “great
importance to the public,” the courts must give greater
than usual scrutiny to the terms of the entity’s

58b

standardized contract with a weaker party.
Restatement (Second) of Contracts, §195. This
power imbalance goes to the very essence of the
“one-sided relationship” described by the Tedeschi
court in reinstating a part-time student based on the
school’s failure to follow its own procedures. Tedeschi
v. Wagner College, 404 N.E.2d 1302, 1806 (N.Y. App.
Ct. 1980).

Like the above cases, UNLV and the Nevada
System of Higher Education (NSHE) has established
a conduct codes and rules, published them in its
handbook, published them on their website, and is
requiring its students to live by those Codes. They too
are required to honor it. By promising Plaintiff that
she would have the right to be represented by counsel
at her hearing, and then revoking that right just
minutes before her hearing was to begin. Plaintiff
relied not only upon the representations made in the
NSHE Code, but also the express assurances in
writing that she would be allowed to be represented by
counsel. By conducting said hearing and refusing to
allow Plaintiff to be represented by counsel, they
breached their contract with Plaintiff. By failing to
include the name of the complainant in the formal
hearing notice, they breached their contract with
Plaintiff. By finding Plaintiff responsible for an act,
despite the fact that no evidence existed, thus violating
Plaintiffs due process, they breached their contract
with Plaintiff. By failing to correct these material
failures on appeal, they breached their contract with
Plaintiff. This cause of action is sufficiently plead in
Plaintiffs Complaint.

2. NEGLIGENCE.

“To prevail on a negligence theory, a plaintiff must
generally show that: (1) the defendant owed a duty of
care to the plaintiff, (2) the defendant breached that
duty; (3) the breach was the legal cause of plaintiffs
injury and (4) the plaintiff suffered damages.” Doud v.
Las V

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1716%3A2. Public record. Not legal advice.