Harris v. Morris

• Decision Date: 08 February 2017
• Docket Number: Case No. 16-11162
• Parties: JOHN ISAAC HARRIS, Plaintiff, v. MIKE MORRIS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

JOHN ISAAC HARRIS, Plaintiff,
v.
MIKE MORRIS, et al., Defendants.

Case No. 16-11162

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 8, 2017

Robert H. Cleland United States District Judge

Stephanie Dawkins Davis United States Magistrate Judge

REPORT AND RECOMMENDATION MOTION TO DISMISS (Dkt 7)

I. PROCEDURAL HISTORY

Plaintiff filed this civil rights complaint against a number of defendants employed by or associated with Eastern Michigan University. (Dkt. 1). All defendants filed a motion to dismiss the complaint on April 25, 2016. (Dkt. 7). Plaintiff filed a response and defendants filed their reply. (Dkt. 12, 13). Plaintiff also filed a sur-reply, without leave of court, which will not be considered. (Dkt. 15). On May 3, 2016, District Judge Robert H. Cleland referred the motion to dismiss to the undersigned for report and recommendation. (Dkt. 10). The Court has determined that oral argument in this matter is not necessary. (Dkt. 14). This matter is now ready for report and recommendation.

For the reasons set forth below, the undersigned RECOMMENDS that

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defendants' motion to dismiss be GRANTED and that plaintiff's complaint be DISMISSED with prejudice.

II. FACTUAL BACKGROUND

Although plaintiff's complaint is not a model of clarity, it appears that plaintiff, who is a graduate student at Eastern Michigan University (EMU), studying for a Master's of Public Administration degree (Dkt. 1, ¶ 2), is complaining about the grades he received in two courses. The first course, PLSC 630, was taught by defendant Dr. Raymond Rosenfeld in the Winter 2014 term (Dkt. 1, ¶¶ 14, 34), and plaintiff received a grade of C+. The second course, PLSC 677 was taught by defendant Dr. Gregory Plagens in the Fall 2014 term (Dkt. 1, ¶ 36), and plaintiff received a grade of C. Because plaintiff's degree program requires students to earn at least a B in the subject classes, he is forced to repeat the two courses.

After plaintiff voiced his concerns surrounding his C+ grade in PLSC 630, Dr. Rosenfeld agreed to re-grade one of plaintiff's assignments, which would have resulted in a grade of B-. (Dkt 1, ¶ 86). However, plaintiff believed that a higher grade was warranted and opted instead to participate in EMU's Grade Grievance Procedure for PLSC 630. Plaintiff was unsuccessful in appealing his C+ grade. (Dkt. 1, ¶ 244). According to defendants, plaintiff failed to timely invoke the Grade Grievance Procedure with regard to the second class (PLSC 677), but

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plaintiff maintains that defendants prevented him from initiating or completing that procedure.

Plaintiff also takes issue with Dr. Rosenfeld's and Dr. Plagens' criticism about his writing ability. For instance, in an e-mail on February 10, 2014, Dr. Rosenfeld advised plaintiff that his paper was in need of a complete edit and that it was so poorly written that he was barely able to evaluate the substance of what plaintiff presented. Dr. Rosenfeld also suggested that plaintiff find someone to help him edit his work. (Dkt. 1, ¶ 61). In another e-mail on October 13, 2014, Dr. Plagens advised plaintiff that his writing was difficult to read, and suggested that plaintiff address his writing weakness by seeking help from EMU's Writing Center. (Dkt. 1, ¶ 180).

Besides availing himself of the Grade Grievance Procedure for PLSC 630, plaintiff also took his concerns to the University's Office of Ombudsman. (Dkt. 1, ¶¶ 35, 149). Additionally, plaintiff went to the University's Office of Diversity & Affirmative Action ("ODAA"). (Dkt. 1, ¶¶ 158, 159, et. seq.). The ODAA advised plaintiff following its investigation, that it did not find support for his claim of harassment or discrimination, or that the Grade Grievance procedures were not followed. (Dkt. 1, ¶¶ 171, 172, 248). Plaintiff claims that the defendants' actions violated his rights under the Equal Protection Clause, the Due Process Clause and the First Amendment of the United States Constitution, and he

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sues each defendant in both an individual and official capacity.

III. ANALYSIS AND CONCLUSION

A. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must first comply with Rule 8(a)(2), which requires "'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 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The United States Supreme Court raised the bar for pleading requirements beyond the old "no-set-of-facts" standard of Conley v. Gibson, 355 U.S. 41, 78 (1957), that had prevailed for the last few decades. Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Twombly, 550 U.S. at 555. In Iqbal, the Supreme Court explained that a civil complaint only survives a motion to dismiss if it "contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678. The Sixth Circuit observed that this new standard is designed to screen out cases that, while not utterly impossible, are "implausible." Courie, 577 F.3d at 629. "A claim 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

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misconduct alleged." Iqbal, 556 U.S. at 678. And although the Court must accept all well-pleaded factual allegations in the complaint as true, it need not "'accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Iqbal, 556 U.S. at 678. The Sixth Circuit noted that "[e]xactly how implausible is 'implausible' remains to be seen, as such a malleable standard will have to be worked out in practice." Courie, 577 F.3d at 629.

Where a plaintiff is proceeding without the assistance of counsel, the court is required to liberally construe the complaint and hold it to a less stringent standard than a similar pleading drafted by an attorney. See e.g. Simmons v. Caruso, 2009 WL 2922046, at *4 (E.D. Mich. Sept. 8, 2009) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972); Hahn v. Star Bank, 190 F.3d 708, 715 (6th Cir. 1999)). Thus, the Court must read plaintiff's pro se complaint indulgently and accept plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. Denton v. Hernandez, 504 U.S. 25, 33 (1992); Erickson v. Pardus, 551 U.S. 89, 94 (2007) (finding that the Court of Appeals improperly departed "from the liberal pleading standards set forth by Rule 8(a)(2)" and failed to "liberally construe" the pro se complaint at issue).

B. § 1983 "Person" and Eleventh Amendment Immunity

Defendants contend that faculty members, the student defendants and other

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defendants in this lawsuit cannot be sued in either their "official" or individual capacities, because they are not officers of the State. According to defendants, not everyone associated with Eastern Michigan University is considered to be a State official. EMU is a Constitutionally-created public institution of higher education. EMU and its governing Board of Regents are referred to in the Michigan Constitution as a "body corporate." See Mich. Const. of 1963, Article 8, Section 6. Therefore, it is a State entity.

Plaintiff's complaint alleges violations of 42 U.S.C. § 1983, under the Equal Protection and Due Process Clauses of the Fourteenth Amendment and the First Amendment Free Speech Clause. Defendants maintain that all of the individual defendants who are State officials, acting in their official capacities, are not "persons" subject to suit under 42 U.S.C. § 1983. Additionally, individual defendants acting in their official capacities are entitled to dismissal of plaintiff's equal protection and due process claims, because those claims are barred by Eleventh Amendment immunity. Defendants further advance that the individual defendants who do not qualify as State officials are entitled to have the claims against them dismissed. According to defendants, if they are not State officials, then they cannot be sued for alleged constitutional violations in either an official or an individual capacity. Defendant posits that faculty members who are not Deans or Department Chairs - Dr. Joseph Ohren, Dr. Raymond Rosenfeld, Dr.

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Gregory Plagens, Dr. Jeffrey L. Bernstein, Dr. Judith S. Kulberg, Dr. Joan Jones, Nancy Byrk, Dr. Edward Sidlow, Dr. Catherine Peterson and Joseph Engwenyu - are not State officials because none of them are officers or Regents of the University or high level administrators or managers. Similarly, defendant Tanesia K. White, who worked in the Office of Diversity & Affirmative Action, is not a State official. Defendants argue that plaintiff does not allege that any of these individuals had authority to set policy, that they supervised other employees, or that they had any authority to hire, fire or discipline other employees.¹ This would be especially true for the student defendants in this case - Darwin Kenneth Roche, Joseph Martinez, Bradley Watkins, Brian Rakovits and Crystal Hartman, who should also have the claims against them dismissed.

Plaintiff responds that the defendants cannot hide behind the Eleventh Amendment immunity, which, in his view, does not bar his claims brought directly against Eastern Michigan University and individual defendants. He asserts that this Court has jurisdiction over his claims because Congress provided 42 U.S.C.

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§ 1983 as a method for seeking relief against a state official for a federal constitutional violation. Plaintiff seeks injunctive, declaratory, and monetary relief in his complaint. (Dkt. 1, Pg ID 3, 7, 71-72, 76-78).

1. EMU and Employees Acting in Official Capacity Not "Persons" under §...