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Owens v. University of South Carolina

United States District Court, D. South Carolina, Columbia Division

July 26, 2018

Julian D. Owens, Plaintiff,
v.
University of South Carolina; Harris Pastides; Michael Amiridis; Lacy Ford; Murray Mitchell; Lillian Smith; Ken Watson; Heather Brandt; Katrin Waslsemann; Jim Thrasher; Ruth Saunders; G. Tom Chandler; Samantha Shofar; David Hensel; Cheryl Addy; South Carolina Insurance Reserve Fund; Ed Frongillo; United States Department of Education's Office of Civil Rights; United States Office of Post-Secondary Education; Council on Education for Public Health, Defendants.

          ORDER AND REPORT AND RECOMMENDATION

          PAIGE J. GOSSETT UNITED STATES MAGISTRATE JUDGE

         The plaintiff, Julian D. Owens, proceeding pro se, filed this action pursuant to 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.). By order dated April 6, 2018, the court authorized the issuance and service of process against Defendants Murray Mitchell, Lillian Smith, and Katrin Waslsemann. (ECF No. 20.) The court also issued a contemporaneous Report and Recommendation that recommended summary dismissal of the other defendants named in the Complaint pursuant to 28 U.S.C. § 1915. (ECF No. 19.)

         Plaintiff has now filed an Amended Complaint that raises new claims against the summarily dismissed defendants and adds two new defendants.[1] (ECF No. 58.) Plaintiff has also filed a motion to amend the Amended Complaint that seeks to reassert the claims pursuant to Bivens v. Six Unkown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983 and accompanying facts against the defendants that were recommended for dismissal in the court's original Report and Recommendation.[2] (ECF No. 80.) Having reviewed the Amended Complaint pursuant to 28 U.S.C. § 1915, the court recommends the Amended Complaint be summarily dismissed.

         The defendants who were served-Murray Mitchell, Lillian Smith, and Katrin Waslsemann-answered and filed motions to dismiss. (ECF Nos. 31, 32, & 45.) Plaintiff filed responses to the motions, (ECF Nos. 71, 72, & 73), and the defendants replied, (ECF Nos. 74, 75, & 76.) Having reviewed the record presented and the applicable law, the court finds the motions should be granted.

         BACKGROUND

         The following allegations are taken as true for purposes of resolving the defendants' motions to dismiss. Plaintiff, who is African American, was formerly enrolled in two doctoral programs at the University of South Carolina (“the University”), in which he alleges officials discriminated against him based on his race, age, and disability, and retaliated against him.[3] Plaintiff enrolled in the Arnold School of Public Health, Department of Health Promotion, Education, and Behavior (“Public Health Program”), pursuing a Ph.D., in the fall 2010 semester. (Compl., ECF No. 1-1 at 1.) Plaintiff's advisor in that program was Defendant Lillian Smith. (Id.) Plaintiff alleges Smith “misadvised and belittled” him on numerous occasions. (Id.) Specifically, Plaintiff claims Smith advised him to take the second part of a statistics course, without Plaintiff's having taken the first, foundational part of the course, whereas Plaintiff's younger, non-African-American colleagues were advised appropriately. (Id.) Plaintiff also alleges Smith made demeaning statements about his age during advisory meetings, and made condescending statements about him in front of Plaintiff's colleagues. (Id. at 1, 3.) Plaintiff claims Smith convened a meeting with the Public Health Program's leaders to intimidate him by discussing concerns about how he was perceived as a threat to the program's faculty. (Id. at 3.) Plaintiff also claims that Defendant Katrin Waslsemann, one of his professors and a member of the doctoral committee, made derogatory and disparaging comments to Plaintiff's colleagues about him. (Id. at 3.)

         Plaintiff further alleges that when he enrolled in the Public Health Program, the student handbook indicated that the doctoral qualifying exam would be an open-book, take-home exam that he would have seven days to complete.[4] (Id. at 2.) Plaintiff claims Smith assured him that the student handbook's requirements would be “frozen” during his time in the Public Health Program, so that he would be grandfathered in to any policy changes. (Id.) But, Plaintiff claims that during his enrollment, the format of the doctoral qualifying exam changed to a proctored and timed exam, which Plaintiff warned would trigger his test anxiety.[5] (Id.) Plaintiff indicates he twice failed the exam. (Id. at 3.) Plaintiff claims that his fellow students that were younger and not African American that had the same exam results as he were “conditionally” passed and given one week to address the exam grader's concerns from home, in an open-book format, whereas Plaintiff was denied those opportunities. (Id.)

         Plaintiff indicates he was “administratively withdrawn” from the Public Health Program some time between December 2012 and September 2013. (Id. at 3.) Plaintiff filed a complaint in the University's Office of Equal Opportunity Programs alleging age and race discrimination, but the complaint was denied. (Id. at 3-4.) Plaintiff appealed the denial to Defendant G. Tom Chandler, [6]Dean of the Arnold School of Public Health; Defendant Murray Mitchell, the Associate Dean of the University's Graduate School; and Defendant Michael Amiridis, [7] Executive Vice President for Academic Affairs and Provost. (Id. at 4.) The appeals were denied. (Id.)

         At some point in 2013, Plaintiff indicates he enrolled in a doctoral program in the University's College of Education Teaching and Learning Program (“Teaching Program”). (Id. at 5.) Plaintiff indicates that even after his program of study was approved by the then Dean of the Graduate School-Defendant Lacy Ford-Defendant Murray Mitchell subjected it to “unprecedented scrutiny.” (Id.) He alleges Mitchell used a racial slur in describing him. (Id.) He also alleges Mitchell required “unprecedented oversight” of the dissertation committee that reviewed his dissertation, and of his academic advisor. (Id.)

         Plaintiff graduated from the Teaching Program in 2015, but at his hooding ceremony, his name was left off of the ceremony's program, and Ford refused to have the program reprinted. (Id.) Plaintiff indicates he filed complaints about the aforementioned issues with the University to Defendant United States Department of Education's Office of Civil Rights and Office of Post-Secondary Education, and with Defendant Council on Education for Public Health, [8] but no action was taken in response to the complaints. (Id. at 6-7.) Plaintiff alleges these offices and their officials-Defendants Shofar and Hensel-failed to conduct a thorough and impartial investigation of Plaintiff's complaints. (Am. Compl., ECF No. 58-3 at 6.)

         Plaintiff asserts that all of the foregoing has caused him “significant harm and substantial damage to me personally and professionally.” (Compl, ECF No. 1 at 7.) Specifically, he claims that his career and projected earnings have changed because he did not receive a Ph.D. in public health. (Id.) He also asserts his emotional, financial, and psychological well-being has been negatively impacted by these events and a hostile environment. (Id.; Mot. to Amend, ECF No. 80 at 2.) In his original complaint, Plaintiff indicates that he brings this action pursuant to Bivens v. Six Unkown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C. § 1983, raising claims of discrimination based on age and race, and retaliation. (Compl., ECF No. 1 at 3, 7.) He expressly indicates the individual defendants are named in their individual capacities only, and he seeks damages. (Id. at 2, 8.) In his Amended Complaint, Plaintiff also brings state law claims of breach of contract, promissory estoppel, fraudulent misrepresentation, negligent misrepresentation, and intentional infliction of emotional distress. In his Amended Complaint, Plaintiff also reiterates his federal claims of race and age discrimination, and adds a disability discrimination claim.

         DISCUSSION

         A. Plaintiff's Amended Complaint

         1. Applicable Standard

         Under established local procedure in this judicial district, a careful review has been made of the pro se Amended Complaint. The Amended Complaint has been filed pursuant to 28 U.S.C. § 1915, which permits an indigent litigant to commence an action in federal court without prepaying the administrative costs of proceeding with the lawsuit. This statute allows a district court to dismiss the case upon a finding that the action “is frivolous or malicious, ” “fails to state a claim on which relief may be granted, ” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).

         In order to state a claim upon which relief can be granted, the plaintiff must do more than make mere conclusory statements. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570. The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.

         This court is required to liberally construe pro se complaints, which are held to a less stringent standard than those drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016). Nonetheless, the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Iqbal, 556 U.S. at 684 (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).

         2. Federal Law Claims

         Plaintiff indicates he brings claims of discrimination based on race, age, and disability, and retaliation pursuant to 42 U.S.C. § 1983[9] and Bivens v. Six Unkown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).[10]

         In the April 6 Report and Recommendation, the court recommended that the original defendants (except for Murray Mitchell, Lillian Smith, and Katrin Waslsemann) be summarily dismissed for Plaintiff's failure to state a claim upon which relief can be granted as to Plaintiff's Bivens and § 1983 claims. Here, the court incorporates the analysis from that Report and Recommendation because the Amended Complaint does not provide any new allegations that would change the court's analysis as to those claims. At most, Plaintiff adds allegations that these defendants knew about or “endorsed” discriminatory behavior. For example, Plaintiff alleges Defendants Addy, Amiridis, Ford, Pastides, Chandler, Frongillo, and Watson knew that Plaintiff was treated differently because of his race, and that they “acquiesced, actively or passively cosigned, or endorsed” such conduct. (Am. Compl., ECF No. 58 at 50; ECF No. 58-2 at 45.) But Plaintiff fails to provide specific facts that support these conclusory allegations. And, as explained in the court's previous Report and Recommendation, Plaintiff must show that the defendants were personally involved in violating Plaintiff's constitutional rights. See Iqbal, 556 U.S. at 676 (providing that a plaintiff in a § 1983 action must plead that the defendant, through his own individual actions, violated the Constitution); Wright v. Collins,766 F.2d 841, 850 (4th Cir. 1985) (“In order for an individual to be liable under § 1983, it must be ‘affirmatively ...


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