                                                                               FILED
                                                                   United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                        Tenth Circuit

                            FOR THE TENTH CIRCUIT                       November 3, 2016
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
BERTRAM L. WILSON, JR.,

     Plaintiff - Appellant,

v.                                                         No. 16-3266
                                              (D.C. No. 6:16-CV-01153-JTM-KGG)
WICHITA STATE UNIVERSITY; TED                               (D. Kan.)
AYERS, Wichita State University
employee; WADE ROBINSON, former
Vice President for Campus Life and
University Relations; ROBIN TIEMEYER,
Library Access Service Manager; PHILLIP
SHALITE, Officer; CODY HERL, Police
Captain,

     Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, O’BRIEN, and PHILLIPS, Circuit Judges.
                   _________________________________

      Bertram L. Wilson Jr., proceeding pro se, claims damages for alleged

psychological stress and mental anguish caused by his ejection from the library and

campus of Wichita State University. Wilson generally asserts that University officials


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violated many of his constitutional rights, referencing the Fifth, Sixth, and Fourteenth

Amendments. The district court dismissed Wilson’s claim sua sponte under 28 U.S.C. §

1915(e)(2)(B)(ii) for failure to state a claim. We reverse and remand.

                                     BACKGROUND

       Wilson is a Wichita State alumnus who has for several years researched at the

campus library. The University instituted a policy requiring that library users have a

research card before researching in the library for more than two-hour periods. Wilson

obtained a research card, but was unable to have it reissued despite multiple attempts to

speak to University officials about its imminent expiration. Wilson alleges that on March

11, 2014, after his card had expired, officers of the Wichita State University Police

Department ordered him to leave the campus library, as well as to leave campus entirely.

Wilson says that the officers told him that he was a concern to the people in the library.

Further, Wilson alleges that on March 17, 2014 the officers again ordered him to leave

the library and campus. He claims that they also issued him a trespass order. Five days

later, a University official sent Wilson a letter affirming the police action and the trespass

order, citing a safety concern for students and employees. Wilson claims that on March

21, 2014 he called the Clearwater, Kansas Police Department for an outside opinion

about those police actions. He alleges that later that night officers of the Wichita Police

Department (not the campus police) arrived at his apartment, at least one with his gun

drawn, and searched him.

       Wilson sued various University officials in federal court, alleging that they had

violated his constitutional rights by acting arbitrarily and discriminating against him. On

                                              2
June 21, 2016, the magistrate judge assigned to the case issued both a memorandum and

order granting Wilson in forma pauperis status1 and denying him appointed counsel, and

a report and recommendation that his claim be dismissed under 28 U.S.C. § 1915(e)(2)

for failure to state a claim. Wilson objected to the dismissal, but the district court adopted

the magistrate court’s recommendation to dismiss the complaint. Wilson was unable to

serve any defendant with process before dismissal. Wilson timely appealed.2

                                       DISCUSSION

       We review de novo a district court’s dismissal of a complaint for failure to state a

claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir.

2007). We accept a complaint’s allegations as true, and we construe all reasonable

inferences in the light most favorable to the plaintiff. Gaines v. Stenseng, 292 F.3d 1222,

1224 (10th Cir. 2002). We apply the same standard for § 1915(e)(2)(B)(ii) dismissals as

we do for Fed. R. Civ. P. 12(b)(6) motions to dismiss: the facts alleged must “raise a right

to relief above the speculative level.” Kay, 500 F.3d at 1218 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Despite this generally equivalent standard, a § 1915

dismissal is proper only if it is obvious that the plaintiff cannot prevail and that an

amended complaint would prove futile. Perkins v. Kan. Dept. of Corr., 165 F.3d 803, 806

(10th Cir. 1999). Because Wilson brings his complaint pro se, we construe his pleadings


       1
           Wilson’s IFP status carries over to this appeal. Fed. R. App. P. 24(a)(3).
       2
         Wilson did not raise the denial of the appointment of counsel in his appellate
brief and so we view it as waived. Fed. R. App. P. 28(a)(8)(A); see United States v.
Martinez, 518 F.3d 763, 767 n.2 (10th Cir. 2008) (“[Appellant] did not challenge the
district court’s ruling in his opening brief, and thus this argument is waived.”).
                                              3
liberally, but we do not serve as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th

Cir. 1991).

       Wilson generally claims violations of the Fifth, Sixth, and Fourteenth

Amendments, but is imprecise in stating his claims for relief. For instance, Wilson argues

that “[t]he Constitution is the law of the land” and that the “search for precedents is of

limited meaning.” Appellant Br. at 4. As best we can tell, Wilson’s complaint makes two

claims. First, we understand him to argue that the defendants deprived him of Fourteenth

Amendment equal protection by treating him differently from other library patrons.

Second, we understand him to argue that the defendants deprived him of Fourteenth

Amendment procedural due process by not reissuing his research card after his years

using the library.

       Even construing these claims liberally, Wilson states no viable equal-protection

claim. Wilson has not alleged membership in any suspect class or the violation of any

fundamental right that would entitle him to a standard other than rational-basis review.

See Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007) (“Because Plaintiffs do not

claim they are members of a suspect class or that the challenged classification burdens a

fundamental right, this court applies rational basis scrutiny.”). Under the rational-basis

standard, we will uphold an action so long as it is rationally related to a legitimate

government purpose. Id. Any conceivable version of the facts can provide a rational

basis. Copelin-Brown v. N.M. State Pers. Office, 399 F.3d 1248, 1255 (10th Cir. 2005).

Here, Wilson has not alleged facts that would overcome the presumption of rationality.

See Teigen, 511 F.3d at 1083.

                                            4
       Add to all this that the setting is a university campus. Generally, universities have

discretion to exclude otherwise constitutionally protected activities from their campuses,

provided that the activities violate reasonable rules or substantially interfere with

educating students. Widmar v. Vincent, 454 U.S. 263, 276-77 (1981). Judges owe school

administrators much discretion in their decisions about how to run a university. Christian

Legal Soc. Chapter of the U. of Cal., Hastings College of L. v. Martinez, 561 U.S. 661,

686 (2010).3 Officers removed Wilson from the campus of a public university, apparently

out of a concern that his behavior or presence caused risks to other library users. In the

context of equal-protection claims, university officials act within their proper role in

making policies protecting the safety of students, faculty, or other citizens.

       But even acknowledging all this discretion owed to university officials, we are

unconvinced that allowing Wilson to amend his procedural-due-process allegations

would be futile. Wilson might be able to show that the university has a policy on library

usage that creates a property interest. If the university’s policy is to issue cards unless

certain rules are violated, that self-restriction on the University’s discretion could create a

due-process property interest.

       For instance, in Brown v. Eppler, a man who had misbehaved on a public bus

challenged his ban from the bus system. 725 F.3d 1221, 1224-25 (10th Cir. 2013). We

held that, by creating a policy banning only people who violated certain rules of conduct,

the public bus authority had constrained its own discretion and created a property interest

       3
       But of course we remain “the final arbiter” of whether a university’s policies
have violated the Constitution. Christian Legal Soc. Chapter of the U. of Cal.,
Hastings College of L., 561 U.S. at 686.
                                              5
in bus ridership. Id. at 1226-27. We also held that it did not matter that the bus authority

could change the rules. Id. If regulations mandate a certain result so long as certain rules

are followed, a person can show a protected property interest. Id. We do not know if the

Wichita State University’s rules for library research cards are similar to Eppler’s rules for

bus ridership. But because they very well might be, we cannot say at this early stage—

even before the defendants are served and have answered—that an amended complaint

would prove futile. More facts that might show futility or a valid interest should be made

known before the district court considers Wilson’s complaint again.

                                     CONCLUSION

       We reverse the district court’s § 1915 dismissal of Wilson’s complaint and

remand for proceedings consistent with this order and judgment.




                                              Entered for the Court


                                              Gregory A. Phillips
                                              Circuit Judge




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