Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 1 of 12 PageID #: 432

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1 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 1 of 12 PageID #: 432 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION SURAN WIJE Plaintiff, v. Civil Action No. 4:14-CV-571 TEXAS WOMAN S UNIVERSITY, et. Honorable Amos L. Mazzant, III al., Magistrate Judge Christine A. Nowak Defendants. UNITED STATES DEPARTMENT OF EDUCATION S REPLY IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF S FOURTH AMENDED COMPLAINT COMES NOW Defendant, United States Department of Education (hereinafter ED ), by and through the United States Attorney for the Eastern District of Texas, and for its Reply in support of its Motion to Dismiss Plaintiff s Fourth Amended Complaint, (hereinafter Motion or ED s Motion ), shows the Court as follows: I. INTRODUCTION Plaintiff s Response 1 to ED s Motion makes four arguments. Dkt. # 83, Response. First, Plaintiff argues that he has properly served ED. However, his Response fails to address ED s 1 Plaintiff Suran Wije s (hereinafter Plaintiff or Wije ) initial Response to ED s Motion fails to address a central issue Plaintiff failed to timely file a Fourth Amended Complaint that complies with the Court s July 21, 2015, Order, Dkt. 75. Apparent from ED s Motion and Texas Woman s University s (hereinafter TWU ) Second Amended Motion to Dismiss, Dkt. # 78, is that Plaintiff s failure to comply with the Court s Order, once again left the Defendants to speculate as to what Plaintiff is actually alleging and the causes of action he is asserting, which seemingly change with every subsequent filing. Apparently, in a belated attempt to remedy his failure to comply with the July 21, 2015, Order, on August 31, 2015, Plaintiff filed a Fourth Amended Complaint. Dkt. # 83. This document appears to be a combination of Plaintiff s Amended Complaint and his response to Defendant TWU s Second Amended Motion to Dismiss and ED s Motion. It is not entirely clear whether Plaintiff intended this document to serve as a Fourth Amended Complaint or as a response to TWU s and ED s motions. If Plaintiff filed the document as an amended complaint, he did so without leave of court and the filing must be stricken. Due to the fact the document would be improper if filed as a new complaint, for purposes of ED s Reply in support of its Motion, ED shall treat the document as Plaintiff s Response in Opposition to ED s Motion (hereinafter Response ). 1

2 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 2 of 12 PageID #: 433 argument that service was not timely and Plaintiff has not established good cause for his failure to timely serve. Second, Plaintiff cites to a number of statutes, which he claims provide the Court subject matter jurisdiction over his claims against ED. However, Plaintiff fails to identify any portion of these statutes that contains a waiver of sovereign immunity. This is largely due to the fact that other than the Federal Tort Claims Act (hereinafter FTCA ), the statutes do not contain a waiver of sovereign immunity. Yet even the FTCA offers no help to the Plaintiff because he has failed the requirement to exhaust administrative remedies prior to filing an action pursuant to the FTCA. Third, Plaintiff attempts to explain that he has stated a claim against ED. However, Plaintiff admits that he filed this case without the detail necessary to state a claim and that he believed he had the advantage of discovery before detailing his cause of action. Dkt. # 83, Response at 19, 19. Notwithstanding Plaintiff s belief, Plaintiff is required to allege sufficient facts to state a claim against ED. Not only has he failed to do so, but many of his causes of action are non-existent and not legally viable. Fourth, Plaintiff argues that ED s Motion should be stayed pending discovery or a phone consultation with a retired attorney. Postponing ruling on ED s Motion is not appropriate because Plaintiff is not entitled to discovery or any other legal counseling. As explained more fully herein, Plaintiff lacks a factual or legal basis to state a claim and accordingly the Fourth Amended Complaint should be dismissed. Given that this is Plaintiff s fifth attempt to state a viable claim and Plaintiff has conceded that he cannot state applicable facts without the benefit of discovery, dismissal should be with prejudice. II. ARGUMENT A. Plaintiff Has Not Timely Served ED. The Court should dismiss Plaintiff s claims against ED because Plaintiff failed to timely serve ED. Plaintiff filed the Third Amended Complaint on January 12, Accordingly, Rule 2

3 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 3 of 12 PageID #: 434 4(m) required Plaintiff to serve ED on or before May 12, Fed.R.Civ.P. 4(m). However, a summons was not issued to the United States Attorney General until June 17, 2015, more than a month after the deadline for completing service expired, and the United States Attorney General did not receive the summons until June 30, 2015, which is approximately six weeks after the deadline for service had expired. Dkt. # 63, Summons to U.S. Attorney General; # 74, Summons Returned Executed. Plaintiff does not dispute the fact that he failed to timely serve ED. Accordingly, dismissal of Plaintiff s claims against ED is appropriate. B. Sovereign Immunity Precludes Plaintiff s Suit. As explained in ED s Motion, the Court lacks subject matter jurisdiction over the claims against ED because Plaintiff has failed to identify a waiver of sovereign immunity, which would allow this case to proceed. In his Response, Plaintiff cites to a number of statues, which he contends provide the Court subject matter jurisdiction over his claims against ED: (1) the Commerce Clause; (2) 18 U.S.C. 1346; (3) 28 U.S.C. 1331; (4) the Civil Rights Act of 1964; (5) Title IX of the Education Amendments of 1972; (6) Section 504 of the Rehabilitation Act; (7) the FTCA; (8) the Due Process Clause; and (9) the Equal Protection Clause. Dkt. # 83 at 18-19, 17. Although Plaintiff s Response identifies these sources, Plaintiff fails to identify whether any of them waives sovereign immunity; with the exception of the FTCA, they do not. The Commerce Clause does not contain a waiver of sovereign immunity. The Commerce Clause provides that Congress shall have the power [t]o regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes. U.S. Const. art. I, 8, cl. 3. The Commerce Clause is an allocation of power between the state and national governments. It does not create any individual rights, Int l Org. of Masters, Mates & Pilots v. Andrews, 831 F.2d 843, 847 (9th Cir. 1987), and surely does not establish a blanket waiver of sovereign immunity. 3

4 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 4 of 12 PageID #: 435 Plaintiff s reliance on 18 U.S.C is also misplaced. Section 1346 is a criminal statute, which defines scheme or artifice to defraud for purposes of the mail fraud statute. 2 As explained in ED s Motion, Plaintiff does not have standing to enforce criminal laws and therefore his reliance on Section 1346 for any purpose is improper. Additionally, the statute does not address sovereign immunity and therefore cannot establish a waiver thereof. 28 U.S.C also does not create a waiver of sovereign immunity. Although Section 1331 provides district courts original jurisdiction over all federal questions, it does not create a blanket waiver of sovereign immunity. Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972) ( Sections 1331 and 1343, Title 28, United States Code, may not be construed to constitute waivers of the federal government s defense of sovereign immunity. As such, Section 1331 does not waive sovereign immunity for Plaintiff s claims against ED. The Civil Rights Act of , Title IX of the Education Amendments of 1972, and Section 504 of the Rehabilitation Act (collectively the Civil Rights Statutes ) similarly do not establish a waiver of sovereign immunity. Primarily, it bears emphasis that the five causes of action Plaintiff asserts against ED, (4) entrapment, (9) usurpation/abuse of power, (10) denial of due process rights, (13) negligence, and (14) white collar financial crimes against taxpayers, Dkt. # 77, Notice on Order # 75 at 3, do not invoke the Civil Rights Statutes. As they do not form the basis of his claims against ED, the Civil Rights Statutes cannot establish a waiver of sovereign immunity for the claims that he is asserting against ED. And even if they could, Plaintiff has not identified any applicable waiver of sovereign immunity. Accordingly, the Civil Rights Statutes fail to establish a waiver of sovereign immunity for Plaintiff s claims against ED. 2 The Court held that Section 1346, which codifies the offense of honest-services fraud, is unconstitutionally vague when applied to fraud schemes other than bribery and kickbacks. Skilling v. U.S., 561 U.S. 358 (2010). 3 The Civil Rights Act of 1964 contains a limited waiver of sovereign immunity, which allows the United Sates to be sued in Title VII discrimination suits where the federal government is the employer. 42 U.S.C. 2000e-16. However, this limited exception is inapplicable in this case. 4

5 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 5 of 12 PageID #: 436 The Due Process and Equal Protection clauses of the Fifth Amendment do not contain a waiver of sovereign immunity. See FDIC v. Meyer, 510 U.S. 471, (1994); Garcia v. U.S., 666 F.2d 960, 966 (5th Cir. 1982) ( The complaint alleges jurisdiction under 28 U.S.C.A. s 1331 and looks directly to the constitution for its substantive basis. This Court and others have held that 28 U.S.C.A. s 1331 is not a waiver of sovereign immunity. The Constitution does not waive the Government s sovereign immunity in a suit for damages. ) (internal citations omitted); Hopes v. Roche, 2005 WL , *7 (D. Md. Aug. 2, 2005) ( Congress has not waived sovereign immunity for federal agencies for alleged violations of the Equal Protection Clause of the Fifth Amendment. ) (internal citation omitted) (unpublished). C. Plaintiff s FTCA Claims, If Any, Are Barred By His Failure To Exhaust Administrative Remedies. Although the Fourth Amended Complaint fails to invoke the FTCA, in his Response, Plaintiff cites to the FTCA as a basis for jurisdiction. Dkt. # 83 at 18, 17. However, Plaintiff has failed to exhaust his administrative remedies, which is a necessary prerequisite to filing a FTCA claim. McNeil v. United States, 508 U.S. 106 (1993). In its Motion, ED explained that a review of its files reveals that there is no record of a FTCA claim properly filed by Plaintiff. Dkt. # 79, Motion at 13; Ex. A Sasser Decl. Since then, on August 20, 2015, ED received Plaintiff s SF 95 form, but he has still not exhausted his administrative remedies as there is no decision on his claim at this time. 4 D. Plaintiff Fails To State A Claim Upon Which Relief Can Be Granted. Even if the Plaintiff had properly served ED and could establish subject matter jurisdiction he cannot Plaintiff s Fourth Amended Complaint should be dismissed as it fails 4 Even if Plaintiff had exhausted his administrative remedies, his FTCA claim is improper for a number of reasons including, but not limited to, the fact that ED is not a proper party, Plaintiff fails to seek monetary damages and Plaintiff fails to state an underlying negligence claim. See Dkt. # 79, ED s Motion at 14 n.4. 5

6 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 6 of 12 PageID #: 437 to state a claim against ED upon which relief can be granted. ED argued in its Motion that Plaintiff failed to state a claim for any of his asserted causes of action: (4) entrapment, (9) usurpation/abuse of power or process, (10) denial of due process rights, (13) negligence, and (14) white collar financial crimes against taxpayers. Dkt. # 79, Motion at Other than negligence and denial of due process, Plaintiff fails to substantively respond to any of the arguments set forth in ED s Motion. Moreover, in multiple statements in his Response, Plaintiff concedes that he lacks facts necessary to support his casus of action because he hoped to obtain those facts during discovery. 5 Given the lack of legal or factual support for any of the causes of action asserted against ED, dismissal is appropriate. 1. Entrapment And White Collar Financial Crimes Against Taxpayers Are Not Civil Causes Of Action. Entrapment and white collar financial crimes against taxpayers are not recognized civil causes of action and therefore must be dismissed. See Dkt. # 79, Motion at 16, a; 23, e. In his Response, Plaintiff does not dispute or offer any authority that tends to support a civil cause of action for entrapment or white collar financial crimes. 6 Instead, Plaintiff solely explains what he meant by entrapment and white collar financial crimes. Unfortunately, Plaintiff s explanation consists more of rhetorical questions than it does either factual or legal support. Ultimately, Plaintiff s explanation does not change the fact that entrapment is a defense to a criminal action, and white collar financial crimes, if it is exists, is a criminal action, which Plaintiff lacks 5 Dkt. # 83 at 7, 2, ( Plaintiff believed that he had the advantage of discovery before detailing his causes of action and that naming them for now would suffice until it was time for summary judgment.... ); 22, 22 ( Plaintiff needs at least some discovery to evaluate these causes of action. Since the Motion to Sanction for fraudulent spying or phishing was set aside for later, Plaintiff hopes these yet to be discovered potential causes of action can also be set aside until discovery concludes.... ) 6 The Court should find that Plaintiff s failure to substantively respond to the issues raised in ED s Motion to create a presumption that Plaintiff does not oppose ED s position. The Local Rules of the Eastern District of Texas (hereinafter the Local Rules ) provide that [i]n the event a party fails to oppose a motion in the manner prescribed herein, the court will assume that the party has no opposition. E.D.Tex. Local R. CV-7(d). Here, although Plaintiff filed a Response, he has not actually addressed the issues raised in ED s Motion. Accordingly, the Court should apply Local Rule CV-7(d) and assume that Plaintiff does not oppose ED s Motion in instances where he fails to substantively respond to the issues raised therein. 6

7 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 7 of 12 PageID #: 438 standing to pursue. See Kondrat v. O Neill, 815 F.2d 78, *1 (6th Cir. 1987) (unpublished) ( Entrapment is not a civil cause of action; entrapment is only a defense to a criminal action. ); Tesi v. Chase Home Fin., LLC, 2010 WL , *5 (N.D. Tex. June 7, 2010) (explaining that civil plaintiffs lack standing to enforce criminal statutes because a criminal statute does not provide a basis for civil liability and a private citizen has no standing to enforce a criminal statute ). Accordingly, the Court should dismiss Plaintiff s fourth cause of action, entrapment, and his fourteenth cause of action, white collar financial crimes against taxpayers. 2. ED OCR Did Not Affect Plaintiff s Due Process Rights. Plaintiff fails to state a cause of action for either denial or due process of usurpation/abuse of power or process, and consequently those causes of action should be dismissed. In his Response, Plaintiff seemingly abandons denial of due process and usurpation/abuse of power or process as independent causes of action. Dtk. # 83, at 21, Instead of pursuing the causes of action independently, Plaintiff characterizes the usurpation/abuse of power or process as the method utilized to deprive him of his rights. For purposes of ED s Motion, this distinction makes no difference because as explained in the Motion, and uncontested by Plaintiff, his due process rights were not implicated by ED s Office for Civil Rights (hereinafter ED OCR ) investigation into Plaintiff s administrative complaint. See Cunningham v. Riley, 98 F.Supp.2d 554, (D. Del. 2000) (finding ED OCR s investigation into plaintiff s administrative OCR complaint did not implicate plaintiff s due process rights). Additionally, although plaintiff cites to six (6) instances of purported discrimination plus retaliation, none of these were actions taken by ED. See Dkt. # 83 at 21, 7 Even if Plaintiff did not intend to abandon usurpation/abuse of power or process as an independent cause of action, he fails to offer any support that makes the cause of action and less unfounded. Even accepting Plaintiff s allegations as true, the allegations set forth in the Fourth Amended Complaint do not support anything beyond the normal functioning of an administrative process. Accordingly, if Plaintiff has not abandoned usurpation/abuse of power or process as an independent cause of action, the Court should dismiss it. 7

8 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 8 of 12 PageID #: (all actions, enumerated (a) (f), are actions taken by parties other than ED). Based on these allegations, it is apparent that Plaintiff s complaint concerns the process prior to filing his administrative complaint with ED OCR, and Plaintiff fails to identify anything that ED did to deprive him of any rights; he is simply disappointed with the result. Because Plaintiff cannot identify and factual or legal basis for these claims against ED and because ED OCR s investigation did not implicate his due process rights, dismissal is appropriate. 3. Plaintiff Fails To State A Claim For Negligence. The Court should dismiss Plaintiff s thirteenth cause of action, negligence because Plaintiff fails to allege the elements necessary to state a cause of action for negligence against ED. 8 Primarily, Plaintiff fails to identify any legally recognized duty that ED owed him. In an attempt to establish a duty, Plaintiff argues: University professors, teachers, lawyers, and public officials as well as individual, private citizens of the United States have a duty of care to oversee students tests, administrative procedures, and award ceremonies neutrally, to protect pupils constitutional rights, and to prevent the fraud, waste and abuses of taxpayers precious dollars. Dkt. # 83, Response at (emphasis in original). Plaintiff s argument t fails for a number of reasons. First, merely stating or parroting the term duty of care fails to establish the existence of an actual duty of care. Plaintiff has not identified any source of this purported duty of care and the undersigned has not found any legal authority imposing such a duty on ED. The Court need not accept Plaintiff s ipse dixit in this regard, and, in fact, the United States Supreme Court has admonished against this type of pleading. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ( [A] plaintiff s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will 8 In order to state a cause of action for negligence, a plaintiff must allege the following: (1) the defendant owed a legal duty to the plaintiff; (2) the defendant breached the duty; and (3) damages proximately caused by the breach. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009). 8

9 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 9 of 12 PageID #: 440 not. ; Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (explaining that a court need not accept a legal conclusion as true). In addition to improperly relying on a naked assertion of legal conclusions in order to establish a duty, Plaintiff fails to specifically identify which duty, if any, ED owed Plaintiff. Thus, Plaintiff s failure to sufficiently allege a duty should result in the dismissal of his negligence claim. Plaintiff s argument regarding the breach of ED s purported duty fares no better. Plaintiff s entire argument regarding breach consists of the type of conclusory allegations specifically rejected in Twombly and Iqbal. Plaintiff asserts it is clear that but for the individual Defendants, ED, and TWU.edu s failure to (a) administer exams, administrative procedures, and federal scholarship/grant ceremonies impartially, (b) protect students constitutional rights, and (c) prevent the fraud, waste, and abuses of tax dollars, Plaintiff would not have suffered several harms. Dkt. # 83 at 20. Moreover, much of Plaintiff s argument has no relevance vis-à-vis ED. For instance, Plaintiff does not allege that ED was involved in the administration of exams or grant ceremonies. Conspicuously absent from Plaintiff s position is any legal or factual support regarding how ED OCR s investigation of his complaint breached any purported duty owed to the Plaintiff or caused him any harm. Absent these types of allegations, dismissal is required. Lastly, Plaintiff s argument similarly fails to satisfy the damages element of a negligence action. Plaintiff argues that the harm he suffered is the loss of his Master s degree or hardearned property and compensatory damages that would include lifetime earnings of a Master s degree are $2.67 to $3.65 million. Dkt. # 83 at 21, 20. First, it bears emphasis that there are no allegations in the Fourth Amended Complaint that ED could award Plaintiff a degree or that ED took away Plaintiff s Master s degree. Second, Plaintiff s argument regarding his Master s Degree is beset by his admission that he was never enrolled in the Master s Program at TWU. Dkt. # 83 at 4 ( Plaintiff s future application to changeover from the Women s Studies certificate 9

10 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 10 of 12 PageID #: 441 program to its Master s was now effectively flagged. ); 7, 3 ( [A] student cannot enroll in both the Certificate Program and the Graduate Program, simultaneously. ). Given Plaintiff s admission that he was never in the Master s Program, Plaintiff could not have earned a Master s Degree from TWU. Thus, ED could not have taken away Plaintiff s degree or caused the alleged damages. Accordingly, Plaintiff cannot state a cause of action for negligence. E. Plaintiff s Request To Postpone Dismissal Should Be Denied. In a final effort to forego dismissal, Plaintiff requests that the Court stay dismissal until discovery concludes, until Plaintiff initiates summary judgment, or until Plaintiff is afforded a phone consultation with a retired lawyer or a judge. Dkt. # 83 at 22 23, 22. Plaintiff s request should be denied because it misapprehends the purpose of discovery in civil actions. The purpose of discovery is to promote a fair settlement or trail by serving as a mechanism for ascertaining truth. 9 That is especially true in this case where Plaintiff has repeatedly admitted that he filed this action without a sufficient factual basis because he believed that he would not have to set forth his facts until after the close of discovery. As Plaintiff has been unable to state a cause of action against ED, the Complaint should be dismissed. III. CONCLUSION WHEREFORE, the United States Department of Education respectfully requests that this Honorable Court grant its Motion and dismiss all claims against it. 9 In re Certain Asbestos Cases, 112 F.R.D. 427, 432 n.8 (N.D. Tex. 1986) (citing Ishler v. Cook, 200 F.2d 507, 511 (7th Cir. 1962). Parties are not entitled to use discovery as a fishing expedition where they have failed to allege facts necessary to state a cause of action. Rodriguez v. Quality Loan Serv. Corp., CV PHX FJM, 2010 WL , *2 (D. Ariz. Apr. 22, 2010) aff d 472 F.App x 642 (9th Cir. 2012) ( Despite a lack of discovery, however, plaintiff must plead enough facts to state a claim to relief that is plausible on its face. She cannot sue discovery to conduct a fishing expedition in hope that some fact supporting an allegation will be uncovered. ) (internal citations omitted); Liechti v. TransCanada Keystone Pipeline GP, LLC, No. CIV GW, 2011 WL , * (W.D. Okla. May 20, 2011) (In her response, plaintiff appears to request that this court allow her to pursue discovery to develop her claims without first pleading enough facts to state a claim to relief that is plausible on its face. Plaintiffs are not permitted to use discovery to conduct a fishing expedition in hope that some fact supporting an allegation will be uncovered. ) (internal citations omitted). 10

11 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 11 of 12 PageID #: 442 Respectfully submitted, JOHN M. BALES UNITED STATES ATTORNEY /s/ James Gillingham James Gillingham Assistant United States Attorney Texas Bar No N. College, Suite 700 Tyler, TX Tel: (903) Fax: (903)

12 Case 4:14-cv ALM-CAN Document 85 Filed 09/10/15 Page 12 of 12 PageID #: 443 CERTIFICATE OF SERVICE I hereby certify that on September 10, 2015, a true and correct copy of this document was served electronically by the Court s CM/ECF system to all counsel of record and sent to the Plaintiff pro se via certified mail, return receipt requested. /s/ James Gillingham James Gillingham 12