Bayson v. Southeast Community College

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD B. BAYSON,
Plaintiff,
vs.
SOUTHEAST COMMUNITY
COLLEGE, et al.,
Defendants.
8:25-CV-575
MEMORANDUM AND ORDER
This matter is before the Court on several motions, the most pertinent
one of which is the defendants' motion to dismiss for failure to state a claim
(filing 30). The Court will grant that motion.
STANDARD OF REVIEW
A complaint must set forth a short and plain statement of the claim
showing that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). This
standard does not require detailed factual allegations, but it demands more
than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The
complaint need not contain detailed factual allegations, but must provide more
than labels and conclusions; and a formulaic recitation of the elements of a
cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). For the purposes of a motion to dismiss a court must take all of the
factual allegations in the complaint as true, but is not bound to accept as true
a legal conclusion couched as a factual allegation. Id.
And to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a
complaint must also contain sufficient factual matter, accepted as true, to state
a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 678. A claim
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has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Id. Where the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has
alleged—but has not shown—that the pleader is entitled to relief. Id. at 679.
Determining whether a complaint states a plausible claim for relief will
require the reviewing court to draw on its judicial experience and common
sense. Id. The facts alleged must raise a reasonable expectation that discovery
will reveal evidence to substantiate the necessary elements of the plaintiff's
claim. See Twombly, 550 U.S. at 545. The court must assume the truth of the
plaintiff's factual allegations, and a well-pleaded complaint may proceed, even
if it strikes a savvy judge that actual proof of those facts is improbable, and
that recovery is very remote and unlikely. Id. at 556.
When deciding a motion to dismiss under Rule 12(b)(6), the Court is
normally limited to considering the facts alleged in the complaint. If the Court
considers matters outside the pleadings, the motion to dismiss must be
converted to one for summary judgment. Rule 12(d). However, the Court may
consider exhibits attached to the complaint and materials that are necessarily
embraced by the pleadings without converting the motion. Mattes v. ABC
Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003).
Here, the Court has considered the materials—particularly emails and
academic records—that the plaintiff attached to his pleadings. See filing 1 at
12-31; filing 7 at 11-12. But, to the extent that the plaintiff's brief might assert
facts not alleged in the pleadings, see, e.g., filing 36 at 1, the Court has not
considered them, see Nat'l Legal & Pol'y Ctr. v. Berkshire Hathaway Inc., 774
F. Supp. 3d 1105, 1116 (D. Neb. 2024) (citing Glick v. W. Power Sports, Inc.,
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944 F.3d 714, 717 (8th Cir. 2019)) (disregarding additional facts presented in
opposition to motion to dismiss that were not included in pleadings).
BACKGROUND
The plaintiff, Richard B. Bayson, is a former student at Southeast
Community College (SCC), in the Respiratory Care program in 2023 and the
Practical Nursing (LPN) program in 2024-25. Filing 7 at 6; filing 1 at 4; see
also filing 7 at 12. The defendants are SCC and several instructors at SCC in
the Respiratory Care and LPN programs.1
The plaintiff began the respiratory care program at SCC in fall 2023.
Filing 7 at 6. He failed classes in Respiratory Care Principles and Respiratory
Care Procedures in fall 2023. Filing 7 at 11. He alleges that his instructors
weren't properly certified to teach, and that SCC permitted "a grading practice
referred to as 'fudge points'" in a way that raised other students' grades but
lowered his. Filing 7 at 6-7. While the plaintiff complains generally that this
practice was unfair and unjust, see filing 7 at 7, he also specifically alleges that
"fudge points" were primarily used to benefit white students. As a result, he's
suing SCC and Kristin Lewis, the instructor he alleges used "fudge points,"
along with program director Todd Klopfenstein and instructor Angela
1 The plaintiff's initial complaint (filing 1) sued SCC and several nurses for events occurring
in the LPN program in 2025. His first amended complaint (filing 7) left out those allegations
and sued SCC and several respiratory care instructors for events occurring in the respiratory
care program in 2023. His second amended complaint (filing 10) put all those defendants
together, but for his statement of claim simply said "SEE ATTACHMENT" when there isn't
an attachment. See filing 10 at 5. Accordingly, the Court has considered the plaintiff's
amended complaints as supplemental to, rather than superseding, his original pleading, and
read them together to determine what his allegations and claims are. See NECivR 15.1(b).
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Poppenhagen for allegedly deferring to Lewis' grading decisions, resulting in
the plaintiff's "emotional distress and career derailment." Filing 7 at 6-10.
In spring 2024 the plaintiff entered the LPN program. Filing 7 at 12. He
completed most of his coursework successfully in the spring and summer
sessions, but withdrew from Practical Nursing Lab I and Practical Nursing
Clinical I in fall 2024. Filing 7 at 12. He retook both those classes in Spring
2025. Filing 7 at 12. As part of the lab course, the plaintiff failed on his first
two attempts at demonstrating medication administration competency. Filing
1 at 13-15. His third attempt was scheduled for the afternoon of March 26,
2025. Filing 1 at 14.
At 2:14 a.m. on the morning of March 26, the plaintiff emailed Ashley
Fritz, the nursing program chair, to express his dissatisfaction with the
program and the instruction he was receiving. Filing 1 at 16-17. Generally
summarized, the plaintiff complained about unfair treatment of people of color,
and asserted that his second retake of the medication administration
competency had been inaccurately assessed. Filing 1 at 16-17.
Later that day, the plaintiff failed his third and final attempt at
demonstrating medication administration competency. Filing 1 at 19. He was
informed that would result in failing grades in both his lab and clinical courses,
and advised to withdraw from those courses to avoid the 'F's. Filing 1 at 18, 20.
In May, the plaintiff contacted SCC associate dean of student affairs
Stephen Dietz to complain about the "unfair treatment" he said he had
experienced at SCC. Filing 1 at 23. The plaintiff demanded, among other
things, that he be placed into the Associate Degree Nursing (RN) program, that
the 'W' grades he'd gotten by withdrawing from his lab and clinical courses be
removed from his transcript, and that his tuition be refunded and his balance
with the bursar's office be discharged. Filing 1 at 23-24. After discussing the
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plaintiff with someone in the LPN program (presumably Fritz), Dietz refused
those demands. Filing 1 at 23.
Dietz did offer to provide the plaintiff with a form he could use to file a
grievance—essentially, a grade appeal. Filing 1 at 23. Dietz explained that the
plaintiff would need to explain to a grievance committee how he had actually
passed the medication administration competency. Filing 1 at 23. Dietz
followed up by emphasizing that the "crux of the appeal" would be whether the
plaintiff could prove that he "should have passed those administrations." Filing
1 at 25. Dietz advised the plaintiff that he would be unlikely to succeed in his
appeal, given a video recording of the third failed attempt. Filing 1 at 25.
A few days later, Dietz informed the plaintiff that "[a]fter reviewing your
grievance application and exploring possible outcomes, the resolutions you
seek are unattainable." Filing 1 at 31. Specifically, Dietz said that the
plaintiff's transcript couldn't be altered, and that admission to the RN program
would require the plaintiff to go through the ordinary process like any other
student. Filing 1 at 31. The plaintiff asked to be placed on the waitlist for the
RN program, then again requested grade adjustment and tuition
reimbursement because of "unqualified instructors." Filing 1 at 29-30. When
the plaintiff asked about the outcome of his grievance, he was told that an
official grievance committee had never met because the relief the plaintiff
sought was unattainable, and he was advised to contact admissions regarding
the RN program. Filing 1 at 27. Instead, he filed this lawsuit, naming SCC,
Fritz, and three other instructors in the nursing program.2
2 Some of the individual defendants are sued in both their official and individual capacities.
Filing 1 at 2-3. Others, it's not specified. Filing 7 at 2; filing 10 at 2-3. Applying the "course
of proceedings test," see S.A.A. v. Geisler, 127 F.4th 1133, 1139 (8th Cir. 2025), and seeing no
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DISCUSSION
The plaintiff's pleadings suggest a number of claims for relief, some more
developed than others. All told, he refers to:
• the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §
12101 et seq. (ADA),
• the Rehabilitation Act of 1973, 29 U.S.C. § 794,
• Title XI of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.,
• Title IV of the Higher Education Act of 1965, 20 U.S.C. § 1070 et seq.,
• the Due Process Clause (via 42 U.S.C. § 1983),
• the Equal Protection Clause (via § 1983), and
• Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
Filing 1 at 3; filing 7 at 3.
Other theories are asserted in the plaintiff's briefing. See filing 36.
Although not clearly articulated, he refers to the False Claims Act, 31 U.S.C.
§ 3729 et seq., and common-law fraud and breach of contract theories. Filing
36 at 8-10, 14. But some claims are easily dispensed with from the start.
ADA AND REHABILITATION ACT
The ADA, to begin with, provides that "no qualified individual with a
disability shall, by reason of such disability, . . . be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity." 42 U.S.C. § 12132. In other words, the ADA
has three elements: (1) the plaintiff is a qualified individual with a disability,
(2) a public entity denied him the benefits of its services or discriminated
distinction among the defendants, the Court concludes that the plaintiff intended to sue all
the individual defendants in both their individual and official capacities.
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against him, and (3) the denial or discrimination was by reason of his
disability. See Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).
Nowhere in the plaintiff's pleadings does he allege that he has a
disability, much less that SCC denied him services or discriminated against
him on the basis of that disability. See filing 1; filing 7; filing 10. And the ADA
and Rehabilitation Act are virtually identical, except that the ADA has no
federal funding requirement. Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir.
1998). As a result, "cases interpreting either are applicable and
interchangeable." Id. (quoting Allison v. Dep't of Corrs., 94 F.3d 494, 497 (8th
Cir. 1996)).
The only mention of disability in the plaintiff's brief is his contention
that "If SCC failed to provide equal access or retaliated against me in
connection with disability rights; that is a violation of Section 504 and ADA
Title II." Filing 36 at 14. Perhaps so, but nowhere in the plaintiff's pleadings
does he allege that SCC's actions actually were in connection with a disability.
The plaintiff's failure to connect SCC's treatment of him to any alleged
disability is fatal to any claim under the ADA or Rehabilitation Act.
TITLE IX
The plaintiff's Title IX claim is similarly flawed. Title IX generally
provides that "[n]o person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal
financial assistance." 20 U.S.C. § 1681(a).
A school may incur liability under Title IX, if it is (1) deliberately
indifferent (2) to known acts of discrimination (3) that occur under its control.
Shrum ex rel. Kelly v. Kluck, 249 F.3d 773, 782 (8th Cir. 2001). But the plaintiff
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alleges no such acts of discrimination on the basis of sex. Accordingly, his Title
IX claim will also be dismissed.
POST-SECONDARY TEACHING PERMIT
Several of the plaintiff's claims, under different theories, rest on the
same premise: That many if not all of the plaintiff's instructors weren't
properly certified to teach. See filing 36 at 2-10. That premise is incorrect as a
matter of law.
Under Nebraska law, "no person shall be employed to teach in any
public, private, denominational, or parochial school in this state who does not
hold a valid Nebraska certificate or permit issued by the Commissioner of
Education legalizing him or her to teach the grade or subjects to which elected."
Neb. Rev. Stat. § 79-802(1); see also Neb. Rev. Stat. § 79-808. But that
requirement applies to prekindergarten, elementary, and high schools. See
Neb. Rev. Stat. § 79-101. Chapter 79 of the Nebraska Revised Statutes applies
to education from elementary through secondary school, while Chapter 85
applies to community colleges. Apland v. Ne. Cmty. Coll., 599 N.W.2d 233, 238
(Neb. Ct. App. 1999). And Chapter 85 contains no requirement for state
certification of community college instructors—instead, the board of the
community college sanctions teaching contracts. Neb. Rev. Stat. § 85-1528.
The state Department of Education's regulations make the same
distinction. Compare 92 Neb. Admin. Code Ch. 21, § 002.19 (defining
"Nebraska school system" as including "grade level prekindergarten through
grade twelve (12)"), with 92 Neb. Admin. Code Ch. 21, § 002.21 (defining
"postsecondary educational entity"). The plaintiff points to 92 Neb. Admin.
Code Ch. 21, § 005, which establishes a "Postsecondary Teaching Permit."
Filing 36 at 19. But that doesn't mean what he thinks. A postsecondary
teaching permit is for teachers to teach courses for college credit that also
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include high school students. See 92 Neb. Admin. Code Ch. 21, § 005.20B. But
a postsecondary teaching permit isn't required for teachers who already have
regular teaching certificates, nor is it required for teachers who only teach
college-aged students. Neb. Dep't of Ed., Teaching Postsecondary Permit: FAQ,
https://perma.cc/AKC4-YUGM (last visited Dec. 12, 2025).
The plaintiff's misunderstanding of the relevant statutes and
regulations is essential to several of his theories of recovery: his common law
claims, his claims pursuant to the Higher Education Act, and his claims
pursuant to the False Claims Act. Accordingly, they will be dismissed.
DUE PROCESS CLAUSE
The plaintiff's due process claims are scattered. He asserts that he "was
denied a fair grievance process, forced to withdraw from core nursing courses
without a hearing, and suffered academic harm without procedural
safeguards." Filing 1 at 3. He elaborated:
After i [sic] emailed the Nursing Director on March 26, 2025
regarding fairness and retaliation in the LPN program, she briefly
met with me once but showed little interest in hearing my
concerns. A few days later she sent me an email stating that per
the handbook, I would receive an F in lab/clinical unless i [sic]
withdrew. No due process. She also stated that I would not be
permitted to administer medications – effectively forcing me out of
the program. I was given incoherent grievances responses by
[SCC]. On one occasion, I was told/emailed by submission qualified
as a formal grievance. Days later, the same submission was
dismissed as "not a grievance." This contradictory handling
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obstructed my ability to seek redress and demonstrated a lack of
procedural integrity.
Filing 1 at 4.
Fortunately, more direct evidence of these events is included in the
record, and refutes some of the ways in which the plaintiff characterized them.
The plaintiff wasn't "forced" to withdraw: He was informed of the consequences
of failing the medication administration competency, and given the choice to
withdraw to avoid those consequences. A difficult choice is still a choice.
But in any event, the full procedural safeguards of the fourteenth
amendment are inapplicable if a student is dismissed from a state educational
institution for failure to meet academic standards. Schuler v. Univ. of Minn.,
788 F.2d 510, 514 (8th Cir. 1986) (citing Bd. of Curators v. Horowitz, 435 U.S.
78 (1978)). Dismissal for academic reasons satisfies procedural due process if
the student had prior notice of faculty dissatisfaction with his performance and
of the possibility of dismissal, and if the decision to dismiss the student was
careful and deliberate. Id.
The plaintiff was plainly aware: He had failed the competency twice
before and told that he was facing his "3rd and final attempt." Filing 1 at 14.
And the consequences of failing again were explained in the program
handbook. See filing 1 at 20. Those circumstances are virtually identical to
what the Eighth Circuit, in Schuler, held to satisfy due process. See id.
The plaintiff's description of the grievance process also mischaracterizes
what he was told by SCC officials. He was offered the opportunity to appeal his
grade on the medication administration competency, and was told about the
scope of that proceeding. See filing 1 at 23-25. The grievance was rejected
without a grievance committee meeting because the relief the plaintiff sought
was outside the scope of a grade appeal. See filing 1 at 27. But even if SCC had
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failed to follow its own grievance procedures, it would not have violated the
plaintiff's right to due process, because the consideration he received from his
instructors and the program director exceeded the process constitutionally
required to protect his interest in continuing the LPN program. See id.
The plaintiff's due process allegations are without merit.
EQUAL PROTECTION/TITLE VI
Title VI prohibits discrimination on the basis of race by any program that
is a recipient of federal funds. See 42 U.S.C. § 2000d. The plaintiff's Title VI
claim is coextensive with his Equal Protection claim. See Students for Fair
Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181, 198 n.2
(2023) (citing Gratz v. Bollinger, 539 U.S. 244 (2003)).3
To prove such a claim, the plaintiff must show a forbidden reason was
"the but-for cause of a denial of benefits." Abdull v. Lovaas Inst. for Early
Intervention Midwest, 819 F.3d 430, 433 (8th Cir. 2016). Only allegations of
intentional discrimination suffice. Alexander v. Sandoval, 532 U.S. 275, 280
(2001); Mumid v. Abraham Lincoln High Sch., 618 F.3d 789, 794 (8th Cir.
2010). And to prove SCC's discriminatory intent, the plaintiff must establish
that he was treated differently from others similarly situated. Does 1-2 v.
Regents of the Univ. of Minn., 999 F.3d 571, 580 (8th Cir. 2021). Alleged
comparators must be "similarly situated in all relevant aspects." Id.
3 With this exception: Title VI claims can't be brought against individual defendants in their
individual capacities. See Steel v. Alma Pub. Sch. Dist., 162 F. Supp. 2d 1083, 1085 (W.D.
Ark. 2001) (citing Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)). But having
concluded that the plaintiff failed to state a claim against anyone, the Court doesn't need to
address the distinction.
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The plaintiff alleges racial discrimination in two separate aspects of
SCC's programs: the LPN program and the respiratory care program. But to
start with, the plaintiff's filings conclusively establish why he left the LPN
program: He withdrew from his lab and clinical courses to avoid failing them.
The filings also conclusively establish why he was in that situation: He failed
his medication administration competency three times. So, as far as the LPN
program is concerned, only one potential comparator is relevant: Someone who
similarly failed their medication administration competency, but was passed
or permitted to remain in the LPN program. The plaintiff doesn't allege the
existence of such a comparator. See Richmond v. Fowlkes, 228 F.3d 854, 860
(8th Cir. 2000) (finding that pharmacy student had "not shown that other
students who were similarly situated received different treatment," because he
had received more negative evaluations than any other students).
The closest the plaintiff comes to alleging discrimination in the LPN
program isn't even in his pleading—it's in his pre-dismissal letter to the
program director, where he asserted that during the previous semester,
"several students, primarily Caucasian students, were given four chances to
pass their math calculations, even though the manual clearly states that only
three attempts are allowed before repeating the program." Filing 1 at 16.
Meanwhile, he said, "[s]ome students have been allowed to move forward after
making critical mistakes, while others, particularly students of color, are
repeatedly failed and phased out of the program." Filing 1 at 16.
But even that falls short of claiming that white students and students of
color had been treated differently for making the same mistakes. And none of
it, even if proven, would be enough to show that race discrimination was the
but-for cause of the plaintiff's exit from the LPN program. Cf. LaBlanche v.
Univ. of Iowa, Coll. of Med., 1 F. App'x 574, 575 (8th Cir. 2001).
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The plaintiff's allegations with respect to the respiratory care program
are more concrete, but still fall short. He says that on the "critical skill" of
"ABG interpretation,"4 his instructor
employed a grading system that consistently demonstrated
manipulation and unequal treatment of students. Despite
widespread confusion among students regarding ABG
interpretation, [the instructor] assigned disproportionately
favorable grades to select individuals who demonstrated poor
understanding of the material. . . . This patten [sic] of grading
manipulation occurred across multiple assignments and tests,
creating a consistent disparity that undermined the integrity of
the evaluation process. The Plaintiff and other students were
equally lost and confused during the stages of ABG instruction, yet
[the instructor's] grading decisions did not reflect objective
performance or uniform standards.
Filing 7 at 7. The plaintiff also alleges that the instructor
used a grading practice referred to as 'fudge points" to increase
midterm and final grades for students with similar or lower
averages. These adjustments were applied inconsistently. While
other students received enough fudge points to raise their final
4 Probably Arterial Blood Gas. See David A. Kaufman, Am. Thoracic Soc'y, Interpretation of
Arterial Blood Gases (ABGs), https://www.thoracic.org/professionals/clinical-resources/
critical-care/clinical-education/abgs.php (last checked Dec. 21, 2025).
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grades to passing levels, the plaintiff's midterm exam score was
lowered, resulting in a failing grade of a D.
Filing 7 at 7.
But the only allegation that carries this toward race discrimination is
the conclusory assertion that "[s]tudents with similar averages were given
substantial midterm exam boost through undocumented 'fudge points',
primarily benefiting white students." Filing 7 at 6.
The Eighth Circuit's decision in Does 1-2 is instructive. In that case, the
plaintiffs alleged that they were unfairly disciplined as a result of their race.
999 F.3d at 574. The Court of Appeals explained that in such a case, the
plaintiffs "must plausibly plead that the acts of others who were not disciplined
or were disciplined less severely were of comparable seriousness to their
infraction." Id. at 580. But they failed to do so—instead, their complaint only
"allege[d] in conclusory fashion that the University 'treated Plaintiffs less
favorably in the investigation and discipline than the University had treated
persons of a different race under similar circumstances.'" Id. Their complaint
was insufficient because they hadn't "plausibly allege[d] a comparator
'similarly situated to Plaintiffs in all relevant aspects.'" Id. at 581. Their claims
were properly dismissed because they "failed to allege -- beyond legal
conclusions couched as factual statements -- that they were treated less
favorably because of their race." Id.
The plaintiff's allegations here are similarly conclusory. While the
plaintiff describes in some detail how the grading system allegedly benefited
students who actually had a less firm grasp on the course material, the
allegation of race discrimination is simply that the scheme "primarily
benefit[ed] white students." Filing 7 at 6. And—particularly because Title VI
has no private right of action to enforce disparate-impact regulations, see
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Alexander, 532 U.S. 275—that allegation is at best a legal conclusion of racial
discrimination, not a plausible allegation of a similarly situated comparator.
Indeed, the Court notes, in his briefing the plaintiff appears to have
abandoned his race discrimination theories altogether. See filing 36 at 3, see
also Sabri v. Whittier All., 122 F. Supp. 3d 829, 835 (D. Minn. 2015), aff'd, 833
F.3d 995 (8th Cir. 2016) (treating theories not defended in opposing a motion
to dismiss as having been abandoned). Instead, he attempts to ground his
equal protection and Title VI claims on alleged discrimination in favor of "other
students with lower academic averages or no medical experience." Filing 36 at
3. But again, his generalized assertions of unfairness fail to identify a relevant
comparator, particularly one who repeatedly failed medication administration
competency. And the Court declines the plaintiff's apparent invitation to hold
that federal civil rights law requires federal courts to review community college
grading and ensure its accuracy—at least, in the absence of any plausibly
supported allegation of improper racial bias or personal animus. See Hurd v.
Hansen, 230 F. App'x 692, 693 (9th Cir. 2007).
The plaintiff has failed to sufficiently plead a race-based discrimination
claim, and has abandoned his race-based theory in his briefing. His theory that
Title IV or the Equal Protection Clause are violated by unfair grading is legally
without merit and factually unsupported by his pleadings. Accordingly, the
plaintiff's Title VI and equal protection claims will be dismissed for failure to
state a claim.
RETALIATION CLAIMS
The plaintiff also suggests, rather vaguely, that he was retaliated
against for his March 26, 2025, letter to Fritz complaining about the LPN
program. Filing 1 at 3. Assuming that the basis for that claim is his assertion
in that letter that students of color were being treated unfairly, it might be
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protected activity that would support a retaliation claim under Title VI. See
Libault v. Mamo, No. 4:22-CV-3096, 2023 WL 3011259, at *10 (D. Neb. Mar.
20, 2023), aff'd, No. 23-1802, 2023 WL 6532621 (8th Cir. Oct. 6, 2023).
But such a claim would still require a plausible allegation that SCC took
adverse action against the plaintiff because of his participation in the protected
activity. See Does 1-2, 999 F.3d at 579-80. As explained above, the basis for
SCC's "action" against the plaintiff is clear, and retaliation was not a but-for
cause. See Blomker v. Jewell, 831 F.3d 1051, 1059 (8th Cir. 2016) (plaintiff
failed to state a retaliation claim because a letter was attached to her
complaint setting out the non-discriminatory and non-retaliatory reasons for
her termination). Moreover, there's no allegation that the decisionmaker who
set that chain of events in motion—the instructor who failed the plaintiff on
his medication administration competency—even knew about the letter. See
Schottel v. Neb. State Coll. Sys., 42 F.4th 976, 983 (8th Cir. 2022) (retaliation
claim failed when there was no evidence decisionmaker knew of alleged
protected activity).
There is, in other words, no plausible allegation establishing that the
plaintiff was retaliated against for complaining to Fritz.
CONCLUSION
The Court is aware that one of the defendants, Diane Anderson, has yet
to be served with process or appear in this case. See filing 37; filing 39. But
courts frequently extend the rationale utilized to dismiss served defendants to
unserved defendants where, as here, the reasons for dismissal are applicable
to the unserved parties. Smith v. Barnett, No. 4:20-CV-4066, 2020 WL
6205760, at *7 (D.S.D. Oct. 22, 2020) (collecting cases); see also Jackson v.
Focus Features LLC, No. 4:24-CV-1194, 2025 WL 1706717, at *3 (E.D. Mo.
June 18, 2025). The plaintiff's claims against Anderson are integrally related
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to his other claims and she is in substantially the same position as other
defendants against whom the plaintiff's claims have been dismissed. See
Jackson, 2025 WL 1706717, at *3 (citing Silverton v. Dep't of Treasury, 644
F.2d 1341, 1345 (9th Cir. 1981)).
For the foregoing reasons, the defendants' motion to dismiss will be
granted and the plaintiff's claims dismissed. The plaintiff's pending motions
for preliminary injunction will be dismissed as moot. The plaintiff also filed
(another) unauthorized sur-reply brief. Filing 45. That filing will be stricken
as unauthorized by this Court's rules. See NECivR 7.1(b)(1) and (c)(3).
IT IS ORDERED:
1. The plaintiff's sur-reply brief (filing 45) is stricken.
2. The defendants' motion to dismiss (filing 30) is granted.
3. The plaintiff's claims are dismissed.
4. The plaintiff's motions for preliminary injunction (filing 14;
filing 44) are denied as moot.
5. A separate judgment will be entered.
Dated this 22nd day of December, 2025.
BY THE COURT:
John M. Gerrard
Senior United States District Judge
8:25-cv-00575-JMG-JMD Doc # 49 Filed: 12/22/25 Page 17 of 17 - Page ID #
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