Jones v. U.S. Dep't of Educ.

• Decision Date: 12 February 2017
• Docket Number: Case No. 2:15-cv-10171
• Parties: SHARON DENISE JONES, Plaintiff, v. U.S. DEPARTMENT OF EDUCATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

SHARON DENISE JONES, Plaintiff, v. U.S. DEPARTMENT OF EDUCATION, et al., Defendants.

Case No. 2:15-cv-10171

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

February 12, 2017

Judge David M. Lawson

Magistrate Judge Anthony P. Patti

REPORT AND RECOMMENDATION REGARDING WSU AND EWING-MILES'S MOTION TO DISMISS (DE 30), USDE AND DUNCAN'S MOTION FOR SUMMARY JUDGMENT (DE 41) and PCR'S MOTION TO DISMISS (DE 43)

I. RECOMMENDATION: The Court should (a) grant Defendants WSU and Ewing-Miles's March 4, 2016 motion to dismiss (DE 30), (b) grant Defendants USDE and Duncan's April 20, 2016 motion for summary judgment (DE 41) and (c) grant Defendant PCR's April 25, 2016 motion to dismiss (DE 43).

II. REPORT:

A. Procedural Background

This case concerns allegedly wrongful student loan collection efforts. Sharon Denise Jones filed her January 15, 2015 complaint against five defendants: the United States Department of Education (USDE); Arne Duncan, Secretary of the USDE; Wayne State University (WSU); Pioneer Credit Recovery, Inc. (PCR); and April Ewing-Miles, "a loan manager at WSU . . . ." (DE 1 ¶¶ 5-9.) She describes her complaint as concerning "the unconstitutional and discriminatory taking of property . . . ." (DE 1 at 1.) Plaintiff seeks injunctive relief, refund of all moneys collected and compensation for all harm caused, as well as any other relief that the Court deems just and proper. (DE 1 at 12 ¶¶ A-C.)

Following the entry of a report and recommendation on certain dispositive motions, the Court entered an order denying without prejudice Defendants' respective motions to dismiss. (See DEs 9, 11, 24 and 25). The order further provided that "if the plaintiff desires to file an amended complaint, then she must do so on or before February 9, 2016." (DE 25 at 2 (emphasis in original).)

Having been granted an extension of time, Plaintiff timely filed her amended complaint on February 19, 2016. (DE 28; see also DE 26.) Among other things, the amended complaint contains an extended description of the "nature of the action and legal claims," which includes alleged violations of the Fair Debt Collection Practices Act (FDCPA) by Defendant PCR. (DE 28 ¶¶ 10-42.)¹

B. Instant Matters Judge Lawson has referred this case to me for all pretrial matters. (DE 4.) Currently before the Court are three dispositive motions: (1) Defendants WSU and Ewing-Miles's March 4, 2016 motion to dismiss Plaintiff's amended complaint (DE 30); (2) Defendants USDE and Duncan's April 20, 2016 motion for summary judgment (DE 41); and (3) Defendant PCR's April 25, 2016 motion to dismiss (DE 43).²

C. Dispositive Motion Practice

1. Fed. R. Civ. P. 12(b)(6)

Defendants WSU, Ewing-Miles and PCR bring their motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (DE 30 at 7, DE 43 at 1, 7.) When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must "construe the complaint in the light most favorable to plaintiff and accept all allegations as true." Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012). "Tosurvive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (concluding that a plausible claim need not contain "detailed factual allegations," but it must contain more than "labels and conclusions" or "a formulaic recitation of the elements of a cause of action"). Facial plausibility is established "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "The plausibility of an inference depends on a host of considerations, including common sense and the strength of competing explanations for the defendant's conduct." 16630 Southfield Ltd., P'Ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir. 2013).

2. Pro se Pleadings and Plaintiff's Status as a Licensed Attorney

The Court holds pro se complaints to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). However, even in pleadings drafted by pro se parties, '"courts should not have to guess at the nature of the claim asserted."' Frengler v. Gen. Motors, 482 F. App'x 975, 976-77 (6th Cir. 2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)). Moreover, as Defendant PCR correctly notes, "courts may not rewrite a complaint to include claims that were never presented . . . nor may courts constructthe plaintiff's legal arguments for [her]," and "[n]either may the court 'conjure up unpled allegations,' . . . ." Rogers v. Detroit Police Dep't, 595 F. Supp. 2d 757, 766 (E.D. Mich. 2009) (Ludington, J., adopting report and recommendation of Binder, M.J.) (citations omitted).

Plaintiff filed her complaint in pro per and is proceeding in forma pauperis. (See DE 1 at 12, DEs 2, 3, 4 & 5.) However, noting the references in Plaintiff's amended complaint to her attendance at WSU's law school (see DE 28 ¶¶ 43, 44, 47, 86, 87) and the admission in her response brief that she "practices in the state courts of Michigan[,]" (DE 46 at 8 ¶ 20), the Court takes judicial notice that Plaintiff is attorney Sharon D. Jones (P57113). (See www.michbar.gov, "Member Directory.") Although representing herself, because Plaintiff is a licensed Michigan attorney, she is not entitled to the liberal construction generally afforded to the pleadings of pro se Plaintiffs, notwithstanding her assertion that she "does not practice in [the] federal court system[,]" (DE 46 ¶ 20). Underhill v. Royer, No. 14-cv-14768, 2015 WL 2384052, *2 n.3 (E.D. Mich. May 19, 2015), aff'd (May 12, 2016); see also Sabeti v. Maron, No. 12-CV-2392 JS ARL, 2012 WL 2001717, at *2 (E.D.N.Y. June 4, 2012). Michigan state courts require notice pleading, just as do federal courts. Johnson v. QFD, Inc., 292 Mich. App. 359, 368, 807 N.W.2d 719, 726 (2011); see also M.C.R. 2.111(A)(1) ("Each allegation of a pleading must be clear, concise, and direct."). Thus, there is no appreciable difference in how toplead an adequate complaint. Plaintiff has had two opportunities to plead her case clearly and concisely and in a "short and plain statement of the claim[s] showing that [she] is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2). In permitting her to amend her complaint, the Court pointed out to her that her original complaint against Defendants did not comply with this rule. (DE 24 at 10-18.)

Moreover, despite the unsupported assertion in her response brief that "[i]n recent months" she "suffered serious injuries including a concussion and brain injury . . .[,]" (DE 46 at 8 ¶ 20), her amended complaint - the sufficiency of which is at issue here - was filed nearly one year ago. To this Court's knowledge, Plaintiff has not co-counseled with another attorney, had counsel appear for her, sought the appointment of counsel or given any indication that her purported disability requires a guardian, conservator, next friend, guardian ad litem, or other accommodation. She has responded to the pending motions on her own behalf. (DE 46.) Nevertheless, I have endeavored to take as expansive a view of her pleadings as can be justified within their four corners and have considered the arguments in the light most favorable to her.

3. Fed. R. Civ. P. 56

Defendants USDE and Duncan bring their motion for summary judgment pursuant to Fed. R. Civ. P. 56. (DE 41 at 6.) Under Federal Rule of Civil Procedure 56, "[t]he court shall grant summary judgment if the movant shows thatthere is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the case under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court "views the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party." Pure Tech Sys., Inc. v. Mt. Hawley Ins. Co., 95 F. App'x 132, 135 (6th Cir. 2004) (internal citations omitted).

"The moving party has the initial burden of proving that no genuine issue of material fact exists . . . ." Stansberry v. Air Wis. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed. R. Civ. P. 56 (e)(2) (providing that if a party "fails to properly address another party's assertion of fact," then the court may "consider the fact undisputed for the purposes of the motion."). "Once the moving party satisfies its burden, 'the burden shifts to the nonmoving party to set forth specific facts showing a triable issue.'" Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 453 (6th Cir. 2001) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). The nonmoving party must "make an affirmative showing with proper evidence in order to defeat the motion." Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009); see also Metro. Gov't of Nashville & Davidson Cnty., 432 F. App'x 435, 441 (6th Cir. 2011) ("The nonmovant must, however, do more than simply show that there issome metaphysical doubt as to the material facts . . . . [T]here must be evidence upon which a reasonable jury could return a verdict in favor of the non-moving party to create a genuine dispute.") (internal quotation marks and citations omitted).

Summary judgment is appropriate if the evidence favoring the nonmoving party is merely colorable or is not significantly probative. City Management Corp. v. United States Chem. Co., 43 F.3d 244, 254 (6th Cir. 1994). In other words, summary judgment is appropriate when "a motion for summary judgment is properly made and supported and the nonmoving party fails to respond with a showing sufficient to establish an essential element of its case. . . ." Stansberry, 651 F.3d at 486 (citing Celotex...