United States District Court, W.D. Virginia, Roanoke Division
MATTHEW J. BYERLY Plaintiff,
VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY Defendant.
S. Ballou, United States Magistrate Judge
civil rights action under 42 U.S.C. § 1983, defendant
Virginia Polytechnic Institute and State University
(“Virginia Tech”) moves to dismiss the plaintiff
Matthew J. Byerly's (“Byerly”) amended
complaint for lack of subject matter jurisdiction and for
failure to state a claim upon which relief can be
granted. Dkt. No. 20. Byerly opposes the motion to
dismiss and also asks for leave to amend. I grant Virginia
Tech's motion to dismiss both for lack of subject matter
jurisdiction and for failure to state a claim upon which
relief can be granted, dismiss the amended complaint without
prejudice, and allow Byerly leave to file a second amended
fall of 2016, Byerly was a student at Virginia Tech and
enrolled in an epidemiology course taught by Dr. Pamela Ray,
a part-time instructor. Am. Compl. at ¶¶ 10, 11,
Dkt. No. 19. During the final examination in the course in
December 2016, Dr. Ray approached Byerly, collected his
answer sheet and stated, “A student behind you said it
appeared you were sharing answers, so I will have to take
these. You will be contacted by honor court in the next few
days.” Id. at ¶¶ 14, 15.
appeared before an honor panel in February 2017. Id.
at ¶ 23. At the hearing, Byerly denied sharing answers
during the exam or cheating in any way. Id. at
¶ 25. Dr. Ray also spoke before the honor panel,
explaining that she collected Byerly's exam upon
receiving a complaint of cheating from another student.
Id. at ¶ 27. The student who had notified Dr.
Ray of Byerly's alleged cheating did not appear before
the honor panel and was not identified. Id. at
¶ 28. The panel found against Byerly, and his appeal to
the Dean of Student Affairs was denied. Id. at
¶¶ 29-30. Byerly received an “F*” in
the course, which he asserts will be “devastating for
his plans to enter the field of medicine.” Id.
at ¶¶ 32, 34. At the time of the filing of the
Amended Complaint in April 2018, Byerly was a college senior
at Virginia Tech and indicated he hoped to attend medical
school. Id. at ¶¶ 8, 9.
Amended Complaint alleges a single cause of action against
Virginia Tech for violation of the due process clause of the
Fourteenth Amendment, pursuant to 42 U.S.C. §
1983. Byerly asserts that he has a
constitutionally protected property interest in his continued
education at Virginia Tech and the credits he purchased for
his epidemiology course, that the due process provisions of
the Fourteenth Amendment apply to Virginia Tech's
disciplinary process, and that Virginia Tech “failed to
provide adequate due process when it neglected to identify
[his] accuser or provide him with an opportunity to confront
and question his accuser.” Id. at ¶¶
38-42. Byerly asks for declaratory and injunctive relief, as
well as attorney's fees and costs. Id. at p. 7.
Tech moves to dismiss the amended complaint pursuant to
Fed.R.Civ.P. 12(b)(1), for lack of subject matter
jurisdiction, and pursuant to Rule 12(b)(6), for failure to
state a claim upon which relief can be granted. Dkt. No. 20.
Byerly opposes the motion to dismiss, and asks for leave to
amend to name an officer of Virginia Tech as the defendant.
Mem. in Opp. to D's Mot. to Dismiss at 13, Dkt. No. 29.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1)
matter jurisdiction is a threshold issue and absent a proper
basis for subject matter jurisdiction, a case must be
dismissed. See Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 96 (1998); Haley v. Virginia
Dep't of Health, No. 4:12-CV-00016, 2012 WL 5494306,
at *2 (W.D. Va. Nov. 13, 2012) (“Federal district
courts are courts of limited jurisdiction.”). The
plaintiff, who asserts jurisdiction, bears the burden of
proving subject matter jurisdiction in response to a Rule
12(b)(1) motion. See Williams v. United States, 50
F.3d 299, 304 (4th Cir. 1995). In deciding whether
jurisdiction exists the court may “consider evidence
outside the pleadings without converting the proceeding to
one for summary judgment.” Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting
Richmond, Fredericksburg & Potomac R. Co. v.
U.S., 945 F.2d 765, 768 (4th Cir. 1991)) (internal
quotation marks omitted).
Federal Rule of Civil Procedure 12(b)(6)
purpose of a Rule 12(b)(6) motion to dismiss is to test the
sufficiency of the plaintiff's complaint. See Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
In considering a Rule 12(b)(6) motion, a court must accept
all factual allegations in the complaint as true and must
draw all reasonable inferences in favor of the plaintiff.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
Federal Rules of Civil Procedure “require[ ] only
‘a short and plain statement of the claim showing that
the pleader is entitled to relief,' in order to
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.' ” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(omission in original) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Legal conclusions in the guise of
factual allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); see also Twombly, 550 U.S. at 555
(requiring a complaint to contain facts sufficient “to
raise a right to relief above the speculative level”
and to “state a claim to relief that is plausible on
Effect of Extrinsic Documents
Tech attached three exhibits to its motion to dismiss, which
it asks the court to consider in ruling on the motion to
dismiss. D's Mem. in Supp. of Mot. to Dismiss at 5, Dkt.
No. 21. These exhibits include the transcript from the
hearing before the honor council (Ex. A.), Byerly's
official transcript (Ex. B.), and the official notice of the
hearing (Ex. C). At oral argument, Byerly objected to the
court considering the exhibits, and objected to the
authenticity of the hearing transcript.
on a motion under Rule 12(b)(6) . . ., matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule
56, ” and “[a]ll parties must be given a
reasonable opportunity to present all the material that is
pertinent to the motion.” Fed.R.Civ.P. 12(d); see
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253,
260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175,
177 (4th Cir. 1985). However, “a court may consider
official public records, documents central to plaintiff's
claim, and documents sufficiently referred to in the
complaint [without converting a Rule 12(b)(6) motion into one
for summary judgment] so long as the authenticity of these
documents is not disputed.” Witthohn v. Fed. Ins.
Co., 164 Fed. App'x 395, 396-97 (4th Cir. 2006)
(citing Alt. Energy, Inc. v. St. Paul Fire & Marine
Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); Phillips
v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir.
1999). “[I]n the event of conflict between the bare
allegations of the complaint and any attached exhibit . . .,
the exhibit prevails.” Fayetteville Inv'rs v.
Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir.
1991). Also, “[w]hen matters outside the pleadings are
presented in a response to a 12(b)(6) motion, a district
court has discretion to exclude the additional
material.” Lawson v. Miles, No. 1:11cv949,
2012 WL 3242349, at *4 (E.D. Va. Aug. 6, 2012) (citations
not consider the exhibits in ruling on the motion to dismiss
as I find that these documents are not official public
records, and are neither integral to nor sufficiently
referred to in the amended complaint. See M.B. by &
through Brown v. McGee, No. 3:16CV334, 2017 WL 1364214,
at *1-2 (E.D. Va. Mar. 24, 2017) (court “exercise[d]
its discretion” and declined to consider certain
exhibits because the plaintiff did not refer to them in his
complaint and they were not central to his claim).
Motion to Dismiss ...