MacHie v. Nguyen , 824 F. Supp. 2d 146 ( 2011 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
EDMOND MACHIE )
)
Plaintiff, )
)
v. )
)
CHARLES NGUYEN, et al. ) Civil Action 11-552 (GK)
)
Defendants. )
)
______________________________)
MEMORANDUM OPINION
Pro se Plaintiff Edmond Machie, a native of Cameroon, brings
this action against Defendants Dr. Charles Nguyen, Dean of the
School of Engineering at the Catholic University of America
(“Catholic University” or “University”) in Washington D.C., and Dr.
Sameh Elsharkawy, a professor at the University. Plaintiff alleges
discrimination and retaliation in violation of Title VI of the
Civil Rights Act of 1964, § 2000d et seq. (“Title VI”),
discrimination in violation of the Workforce Investment Act, 29
U.S.C. § 2801 et seq. (“WIA”), and also raises various common law
causes of action.1
1
In briefing on Defendants’ Motion to Dismiss, Plaintiff
describes Catholic University as a Defendant in this case.
Plaintiff’s Opposition to Defendants’ Motion to Dismiss, 4 (Pl.
Opp’n) [Dkt. No. 18]. Catholic University has not, however, been
named as a Defendant in Plaintiff’s Complaint, has not been served
with process by Plaintiff, and has not otherwise entered an
appearance in this matter. Consequently, Catholic University is not
a party to this suit. Mar-Jac Poultry, Inc. v. Katz, 773 F. Supp.
2d 103, 105 n.1 (D.D.C. 2011).
This matter is presently before the Court on Defendants’
Motion to Dismiss Plaintiff’s Complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6) (“Defs. Mot.”) [Dkt. No. 4]. Upon
consideration of the Motion, Opposition, and Reply, and the entire
record herein, Defendants’ Motion to Dismiss is granted.
I. Background2
During the Spring 2006 semester, Plaintiff, who was a student
at Catholic University, received a failing grade in CSC 522-
Operating Systems, a computer science class taught by Defendant
Elsharkawy. Compl. ¶¶ 1, 6-7, 24. Plaintiff received this grade
because of his performance on a group project, which served as the
final exam for the class. Id. ¶ 7. Defendant Elsharkawy allegedly
gave another group member, a non-Black woman of Asian descent, a
better grade on the project than Plaintiff. Id.
On September 15, 2007, Defendant Nguyen placed Plaintiff on
academic probation for the Fall 2007 semester because of his low
GPA, and prohibited Plaintiff from taking more than three courses
that term. Id. ¶ 18. On October 2, 2007, Defendant Nguyen informed
Plaintiff that, due to his academic difficulties, he would be
ineligible to graduate from the School of Engineering’s Master’s
2
For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat’l Rifle Ass’n of Am., 606 F.2d 1251, 1253 (D.C.
Cir. 1979). Therefore, the facts set forth herein are taken from
Plaintiff’s Complaint.
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program in December 2007. Id. ¶ 9. Defendant Nguyen advised
Plaintiff to update the Director of the University’s Department of
Labor (“DOL”) scholarship program about this development. Id. At
the time, Plaintiff appears to have been receiving a DOL
scholarship. Id.
At some point thereafter, Plaintiff used the University’s
grade appeal process to challenge the grade he received in
Defendant Elsharkawy’s class. Id. ¶ 26. On or about December 18,
2009, Plaintiff’s grade was raised. Id. ¶ 22.
Sometime on or around March 1, 2010, Plaintiff applied for
readmission to the School of Engineering’s Master’s program. Id. ¶¶
11-15. On April 20, 2010, Defendant Nguyen informed Plaintiff that
he would not be admitted to the Master’s program. Id. ¶ 21. On
April 23, 2010, Plaintiff learned that his application was denied
because his GPA fell below a 3.0. Id. ¶ 24. Plaintiff alleges that,
because his grade in Defendant Elsharkawy’s class had been raised,
his GPA should have satisfied the Master’s program’s admissions
requirement. Id.
On March 16, 2011, Plaintiff filed the instant Complaint with
this Court. On May 9, 2011, Defendants submitted a Motion to
Dismiss Plaintiff’s Complaint. On June 29, 2011, Plaintiff
submitted an Opposition to Defendants’ Motion to Dismiss. On July
22, 2011, Defendants submitted a Reply Brief in Support of Their
Motion to Dismiss [Dkt. No. 20].
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II. Standard of Review
To survive a motion to dismiss under Rule 12(b)(6), a
plaintiff need only plead “enough facts to state a claim to relief
that is plausible on its face” and to “nudge[] [his or her] claims
across the line from conceivable to plausible.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[A] complaint [does not]
suffice if it tenders naked assertions devoid of further factual
enhancement.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)
(internal quotations omitted) (citing Twombly, 550 U.S. at 557).
Instead, the complaint must plead facts that are more than “merely
consistent with” a defendant’s liability; “the pleaded factual
content [must] allow[] the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at
1940 (citing Twombly, 550 U.S. at 556). In deciding a Rule 12(b)(6)
motion, the court may consider any documents attached to or
incorporated into the complaint, matters of which the court may
take judicial notice, and matters of public record. EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
“[O]nce a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint.” Twombly, 550 U.S. at 563. Under the
standard set forth in Twombly, a “court deciding a motion to
dismiss must . . . assume all the allegations in the complaint are
true (even if doubtful in fact) . . . [and] must give the plaintiff
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the benefit of all reasonable inferences derived from the facts
alleged.” Aktieselskabet, 525 F.3d at 17 (citations and internal
quotations omitted). See also Tooley v. Napolitano, 586 F.3d 1006,
1007 (D.C. Cir. 2009) (declining to reject or address the
government’s argument that Iqbal invalidated Aktieselskabet).
Complaints submitted by plaintiffs proceeding pro se are
reviewed by the court under “less stringent standards than formal
pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520,
92 S. Ct. 594 (1972). However, a pro se complaint must still plead
“‘factual matter’ that permits the court to infer more than the
‘mere possibility of misconduct.’” Jones v. Horne, 634 F.3d 588,
596 (D.C. Cir. 2011)(citation and internal quotations omitted).
III. Analysis
Plaintiff alleges that, by giving him a failing grade,
Defendant Elsharkawy discriminated and retaliated against him based
on his race and national origin in violation of Title VI. Plaintiff
alleges that Defendant Nguyen similarly violated Title VI by
placing him on academic probation for the Fall 2007 semester and
failing to readmit him to the School of Engineering’s Master’s
program. Plaintiff also alleges that Defendants violated the WIA
and subjected Plaintiff to “illegal arrest,” “false charge,”
slander and libel, torture, and “attempted prosecution.” Compl. ¶¶
28-29.
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Defendants have raised a number of challenges to these claims,
to which Plaintiff has failed to respond.4 In the Court’s May 17,
2011 Order [Dkt. No. 5], Plaintiff was informed that “the Court may
choose to treat as conceded any motion not opposed within the time
limits put in place by the Court or may instead choose to consider
on the merits any such motion.” Notwithstanding Plaintiff’s failure
to comply with this Order, the Court will consider the merits of
Defendants’ arguments.
A. Title VI
Defendants argue that Plaintiff has failed to state a claim
under Title VI because the statute does not allow for individual
liability. Defs. Mot. 8-9.
Title VI prohibits federally-funded programs or institutions,
such as universities, from discriminating against any person on the
basis of race, color, or national origin. 42 U.S.C. § 2000d. As
Defendants correctly point out, individual defendants, like
Professors Nguyen and Elsharkawy, are not subject to suit under
Title VI. Mwabira-Simera v. Howard Univ., 692 F. Supp. 2d 65, 70
(D.D.C. 2010)(citing to Shotz v. City of Plantation, Fla., 344 F.3d
1161, 1169-70 (11th Cir. 2003)).
4
Instead, Plaintiff argues that Defendant’s submission of a
motion to dismiss violates Federal Rule of Civil Procedure 7. Pl.
Opp’n 3, 5. Plaintiff has misunderstood the Federal Rules, which
expressly allow for the submission of motions to dismiss in
response to the filing of a complaint. FED . R. CIV. P. 12.
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Consequently, Plaintiff has failed to state a claim for relief
under this statute.
B. Workforce Investment Act
Defendants argue that Plaintiff has failed to state a claim
under the WIA because the statute does not permit private parties
to bring suit under the Act. Defs. Mot. 16-17.
The WIA was enacted to “provide workforce investment
activities through statewide and local workforce investment systems
that increase the employment, retention, and earnings of
participants, and increase occupational skill attainment by
participants, and, as a result, improve the quality of the
workforce, reduce welfare dependency, and enhance the productivity
and competitiveness of the Nation.” 29 U.S.C. § 2811. The WIA
mandates that “[n]o individual shall be excluded from participation
in, denied the benefits of, subjected to discrimination under, or
denied employment in the administration of or in connection with,
any such program or activity because of race, color, religion, sex
. . ., national origin, age, disability, or political affiliation
or belief. 29 U.S.C. § 2938(a)(2).
Plaintiff has not alleged that Defendants received WIA
funding, nor would they seem to be eligible for such funding under
the statute. 29 U.S.C. § 2842; 29. U.S.C. § 2843. Moreover, as
Defendants correctly argue, the WIA does not permit private
plaintiffs to sue for violation of the statute’s non-discrimination
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provision. See Borrero-Rodriguez v. Montalvo-Vazquez, 275 F. Supp.
2d 127, 132 (D.P.R. 2003) (“The [WIA] does not give the alleged
victim [of discrimination] the right to sue. The Attorney General
may or may not choose to file a civil action to remedy the alleged
discrimination, if the matter is referred by the Secretary [of
labor].”).
For this reason, Plaintiff has failed to state a claim for
relief under the WIA.
C. Plaintiff’s Common Law Theories of Liability
Defendants argue that Plaintiff’s factual allegations fail to
support his claims for illegal arrest, false charge, slander and
libel, torture, and attempted prosecution. Defs. Mot. 17-23.
1. Illegal Arrest
Although there is no cause of action under D.C. law for
illegal arrest, the Court will construe Plaintiff’s Complaint as
raising a claim for false arrest, which is legally cognizable.
Haines, 404 U.S. at 520. There are two types of false arrest
claims: ones which are based on constitutional violations and
those which are based on the common law. As to either type of
claim, “[t]he focal point of the action is the question whether the
arresting officer was justified in ordering the arrest of the
plaintiff . . . .” Scott v. District of Columbia, 101 F.3d 748, 754
(D.C. Cir. 1996)(alteration in original)(citation and internal
quotations omitted).
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Plaintiff has not alleged that Defendants are law enforcement
officers or that Plaintiff was, at any time, arrested.
Consequently, Plaintiff has failed to state a claim for false
arrest under D.C. law.
2. False Charge
There is no cause of action for false charge under D.C. law,
nor has the Court found any recognized legal theory that
approximates this claim. Consequently, because Plaintiff’s false
charge claim has no legal merit, it must be dismissed.
3. Slander and Libel
To make out a cause of action for slander or libel, “a
plaintiff must demonstrate that defendant’s remarks are
‘defamatory.’” Cmty. for Creative Non-Violence v. Pierce, 814 F.2d
663, 670 (D.C. Cir. 1987). “In the District of Columbia, a
statement is defamatory if it tends to injure [the] plaintiff in
his [or her] trade, profession or community standing or lower him
in the estimation of the community.” Beeton v. District of
Columbia, 779 A.2d 918, 923 (D.C. 2001)(citation and internal
quotations omitted).
To state a claim for defamation, plaintiff must demonstrate:
(1) that the defendant made a false and defamatory
statement concerning the plaintiff; (2) that the
defendant published the statement without privilege to a
third party; (3) that the defendant’s fault in publishing
the statement amounted to at least negligence; and (4)
either that the statement was actionable as a matter of
law irrespective of special harm or that its publication
caused the plaintiff special harm.
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Id. (citation and internal quotations omitted). In addition, the
statement must be “more than merely unpleasant or offensive but
[must] make the plaintiff appear ‘odious, infamous, or
ridiculous.’” Pierce, 814 F.2d at 671 (citation and internal
quotations omitted).
Construing the Complaint in the most favorable light,
Plaintiff has not identified any false statements made by
Defendants, has not alleged that any such statements made him
appear to be “odious, infamous, or ridiculous,” and has not claimed
that Defendants published such statements to third parties.
Consequently, Plaintiff has failed to state a claim for
slander or libel under D.C. law.
4. Torture
There is no common law cause of action for torture under D.C.
law. The Torture Victim Protection Act, 28 U.S.C. § 1350 (“TVPA”),
does, however, provide a statutory basis for such claims.5 The TVPA
allows U.S. and foreign citizens to bring suit against “[a]n
individual who under actual or apparent authority, or color of law,
of any foreign nation,” subjects a person to torture. Id., § 2.
The TVPA defines torture as
5
Although the TVPA is not a jurisdictional statute, it allows
parties to pursue claims of official torture through the Alien Tort
Claims Act, 28 U.S.C. § 1350, and general federal question
jurisdiction. See Jerez v. Republic of Cuba, 777 F. Supp. 2d 6, 18
(D.D.C. 2011)
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[a]ny act, directed against an individual in the
offender’s custody or physical control, by which severe
pain or suffering (other than pain or suffering arising
only from or inherent in, or incidental to, lawful
sanctions), whether physical or mental, is intentionally
inflicted on that individual for such purposes as
obtaining from that individual or a third person
information or a confession, punishing that individual
for an act that individual or a third person is suspected
of having committed, intimidating or coercing that
individual or third person, or for any reason based on
discrimination of any kind.
Id., § 3.
The Complaint is devoid of any allegation that could be
remotely understood to support a claim for torture. Nor are
Defendants alleged to have acted “under color of the law of any
foreign nation” or to have subjected Plaintiff to severe physical
or mental pain. In short, Plaintiff’s claim is frivolous and
without any merit.
Plaintiff has, therefore, failed to state a claim for torture
under the TVPA.
5. Attempted Prosecution
There is no cause of action for attempted prosecution under
D.C. law. D.C. law does, however, recognize claims for malicious
prosecution. To make out a claim for malicious prosecution in a
civil case, plaintiff must demonstrate: “(1) [that] the underlying
suit terminated in the plaintiff’s favor; (2) malice on the part of
the defendant; (3) lack of probable cause for the underlying suit;
and (4) special injury occasioned by the plaintiff as the result of
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the original action.” Brown v. Carr, 503 A.2d 1241, 1244 (D.C.
1986)(citation omitted).
The Complaint does not allege that Defendants previously
brought suit against Plaintiff or contain any other allegations
that could reasonably be construed as supporting a claim for
malicious prosecution.
For these reasons, Plaintiff has failed to state a claim for
malicious prosecution under D.C. law.
IV. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss is
granted. An Order will accompany this Memorandum Opinion.
/s/
November 15, 2011 Gladys Kessler
United States District Judge
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