throbber
Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 1 of 20 PageID #: 678
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`United States District Court
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`





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`CASE NO. 4:14-CV-571
`(Judge Mazzant/Judge Nowak)
`
`SURAN WIJE
`
`v.
`
`TEXAS WOMAN’S UNIVERSITY, ET AL.
`
`
`MEMORANDUM ADOPTING REPORT AND
`RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
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`Came on for consideration the report of the United States Magistrate Judge in this action,
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`
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`this matter having been heretofore referred to the Magistrate Judge pursuant to 28 U.S.C. § 636.
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`On February 5, 2016, the report of the Magistrate Judge (Dkt. #100) was entered containing
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`proposed findings of fact and recommendations that Defendants Texas Woman’s University
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`(“TWU”), Ann Stuart, Robert Neely, Ann Staton, Jennifer Martin, Daniel Miller, Barbara
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`Presnall, AnaLouise Keating, Linda Rubin, Stephen Souris, Claire Sahlin, Christian Hart, and
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`Danielle Phillips’ (collectively, the “Individual Defendants,” and with TWU, the “TWU
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`Defendants”) Second Amended Motion to Dismiss (Dkt. #78) be granted. Having received the
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`report of the Magistrate Judge (Dkt. #100), having considered Plaintiff’s timely filed objections
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`(Dkt. #101), the TWU Defendants’ response to Plaintiff’s objections (Dkt. #103), and Plaintiff’s
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`reply to the TWU Defendants’ response (Dkt. #104), the Court is of the opinion that the findings
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`and conclusions of the Magistrate Judge are correct.
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`BACKGROUND
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`
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`The facts in this case originate from Plaintiff’s dissatisfaction with a grade appeal process
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`he participated in as a student at Defendant TWU in the spring of 2011 (see generally Dkt. 86).
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`The underlying facts are set out in further detail by the Magistrate Judge, and need not be
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`

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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 2 of 20 PageID #: 679
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`repeated in their entirety (see Dkt. #100). Accordingly, the Court sets forth herein only those
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`facts pertinent to Plaintiff’s objections.
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`Plaintiff allegedly lost points for lack of comprehension during a final exam, resulting in
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`his receiving a B on his examination (Dkt. #86 at 3). Plaintiff subsequently raised the matter
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`with the course’s professor, Dr. Linda Rubin, Ph.D. (“Dr. Rubin”). Id. at 2; Ex. 3. Plaintiff
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`contends that the points he lost on the examination was a result of Dr. Rubin’s discrimination
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`against him because of his gender and race/national origin. Id. at 2. Plaintiff also contends that
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`Dr. Rubin deducted grade points from his final grade for his absence from class to attend a
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`Fulbright award ceremony. Id. at 2-3. Plaintiff subsequently appealed Dr. Rubin’s decision
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`through TWU’s “six-step” grade appeal process. Id. at 3. Plaintiff does not allege facts
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`regarding each stage of the appeal, but contends generally that the Individual Defendants were
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`appeal participants. Id. Plaintiff alleges that throughout the appeal process, various professors,
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`including Drs. Rubin and Claire Sahlin, made disparaging and untrue remarks about his poor
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`academic performance and “invisible disability health information,” which gives rise to his cause
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`of action for defamation. Id. at 3. Plaintiff also states that at the final stage of the appeal,
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`Drs. Ann Stuart and Robert Neely ignored Plaintiff’s appeal. Id. at 4. Plaintiff contends TWU
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`discriminated and retaliated against him by ultimately denying his appeal. Id. at 2.
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`
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`Moreover, Plaintiff argues that, while he was enrolled in TWU’s Women’s Studies
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`Certificate Program, he had allegedly completed the requirements for both the certificate
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`program and TWU’s Women’s Studies graduate program, but nevertheless was denied admission
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`to the graduate program following his grade appeal despite his excellent grades and completion
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`of all requirements. Id. at 3-4. Plaintiff also contends that he was required to apply for the same
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`graduate program three different times, and TWU billed him for the application fee each time.
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`2
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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 3 of 20 PageID #: 680
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`Id. at 4.  Plaintiff does not dispute that he received a certificate from TWU upon completion of
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`the certificate program, but does assert that, but for the TWU Defendants’ discrimination and
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`retaliation, Plaintiff would have obtained his Master’s Degree in Women’s Studies. Id. at 6. On
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`or about October 23, 2013, Plaintiff filed an administrative complaint against TWU with the
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`Department of Education’s Office for Civil Rights, which was denied on February 21, 2014, for
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`insufficient evidence from which the Department of Education could infer discrimination.
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`Id. at 3.
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`
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`On September 4, 2014, Plaintiff filed this civil action against the TWU Defendants
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`(Dkt. #1). Plaintiff’s live pleading in this case is his Fifth Amended Complaint, filed on
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`September 18, 2015 (Dkt. #86). The Court has construed Plaintiff’s Fifth Amended Complaint
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`(and other pleadings) to assert claims against the TWU Defendants for:1 (1) defamation (Dkt.
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`#86 at 15-16); (2) fraud (Dkt. #86 at 2-3, 8, 11-14, 22); (3) intentional infliction of emotional
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`distress (Dkt. #86 at 22); (4) negligent infliction of emotional distress (Dkt. #86 at 22); (5) public
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`disclosure of private facts (Dkt. #86 at 4); (6) negligence (Dkt. #86 at 5, 16-17); (7) Texas
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`Deceptive Trade Practices Act (“DTPA”) (Dkt. #86 at 4); (8) Fourteenth Amendment procedural
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`due process (Dkt. #86 at 4, 8, 15, 24); (9) Fourteenth Amendment substantive due process (Dkt.
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`#86 at 4, 8, 15, 21); (10) Fourteenth Amendment equal protection (Dkt. #86 at 8, 15, 21);
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`(11) Racketeer Influenced and Corrupt Organizations Act (“RICO”) (Dkt. #86 at 4, 6);
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`(12) Commerce Clause (Dkt. #86 at 7, 8); (13) Title II of the Americans with Disabilities Act
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`(“ADA”) (Dkt. #86 at 7, 9-10); (14) 18 U.S.C. § 1346 (Dkt. #86 at 18); (15) 28 U.S.C. § 1331
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`(Dkt. #86 at 18); (16) False Claims Act (“FCA”) (Dkt. #86 at 7); (17) Federal Tort Claims Act
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`
`1 The Court notes that the list of claims in the Magistrate Judge’s report and recommendation omitted numbers
`“7” and “8” (see Dkt. #100 at 4). However, after reviewing the report and recommendation, and all other relevant
`pleadings, the Court concludes that this is a typographical error. The Magistrate Judge’s list was misnumbered but
`no claims were omitted from consideration.
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`
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`3
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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 4 of 20 PageID #: 681
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`(“FTCA”) (Dkt. #86 at 7); (18) Section 504 of the Rehabilitation Act (“Section 504”) (Dkt. #86
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`at 7, 9-10); (19) Title VII of the Civil Rights Act of 1964 (“Title VII”) (Dkt. #86 at 7, 9-10);
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`(20) Title IX of the Education Amendments of 1972 (“Title IX”) (Dkt. #86 at 7, 9-11);
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`(21) “white collar crimes” (Dkt. #86 at 6, 22); (22) conspiracy to defraud (Dkt. #86 at 4, 5);
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`(23) entrapment (Dkt. #86 at 3, 22); (24) legacy preference corruption (Dkt. #71 at 5); and
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`(25) retaliation (Dkt. #86 at 6).2
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`
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`On August 10, 2015, the TWU Defendants filed a Second Amended Motion to Dismiss
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`(Dkt. #78). On August 27, 2015, Plaintiff filed a response to the TWU Defendants’ Motion to
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`Dismiss (Dkt. #82); and on September 9, 2015, the TWU Defendants filed a Reply (Dkt. #84).
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`On September 18, 2015, Plaintiff filed his Fifth Amended Complaint, which is the live pleading
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`in this action (Dkts. #86). On December 22, 2015, the Court entered an Order requiring the
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`TWU Defendants to file a brief regarding the Eleventh Amendment immunity defense claimed
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`by the TWU Defendants, as well as the applicability, if any, to each of Plaintiff’s causes of
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`action asserted in his live Fifth Amended Complaint (Dkt. #93). The TWU Defendants filed
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`their Supplemental Brief on Eleventh Amendment Immunity Grounds in Support of Motions to
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`Dismiss on January 8, 2016, in accordance with the Court’s Order (Dkt. #96). The Magistrate
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`Judge entered a report and recommendation on February 5, 2016, recommending dismissal of
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`each of Plaintiff’s claims against the TWU Defendants (Dkt. #100). On February 18, 2016,
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`Plaintiff timely filed objections (Dkt. #101). Also on February 18, 2016, Plaintiff filed a further
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`Motion to Appoint Counsel (Dkt. #102). On March 3, 2016, the TWU Defendants filed a
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`Response to Plaintiff’s Objections (Dkt. #103), and on March 7, 2016, Plaintiff filed a Reply to
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`the TWU Defendants’ Response (Dkt. #104).
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`2 Plaintiff objects to the inclusion of the DTPA claim in this list, advising the Court by way of his objections that he
`had intended this claim to be removed and/or dropped previously (see Dkt. #101 at 2; infra page seven).
`4
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`

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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 5 of 20 PageID #: 682
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`PLAINTIFF’S OBJECTIONS
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`
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`Plaintiff has objected to the Magistrate Judge’s report and recommendation on seven
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`grounds.3 Specifically, Plaintiff objects to (1) the Magistrate Judge’s use of an “inaccessibly
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`heightened” pleading standard; (2) the Magistrate Judge’s reference to the DTPA (a cause of
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`action Plaintiff alleges he previously agreed to remove from his case); (3) the Magistrate Judge’s
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`reference to and/or reliance on the TWU Defendants’ Supplemental Brief related to Eleventh
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`Amendment immunity (Dkt. #96); (4) certain alleged factual errors in the Magistrate Judge’s
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`report and recommendation; (5) the Magistrate Judge’s use of “subjective” rather than
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`“objective” language; (6) the Magistrate Judge’s focus on “cosmetic” symptoms rather than
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`“structural” causes; and (7) six specific sentences in the Magistrate Judge’s report and
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`recommendation (see Dkt. #101). Plaintiff’s objections, as stated however, have no effect and/or
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`impact on the majority of the findings and conclusions of the Magistrate Judge (see Dkt. #100).
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`
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`To reiterate, the Magistrate Judge specifically recommended that:
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`(1) Each of Plaintiff’s claims against the TWU Defendants4 in their official
`capacities (for defamation, fraud, intentional infliction of emotional distress,
`negligent infliction of emotional distress, public disclosure of private facts,
`negligence, DTPA, Fourteenth Amendment violations, RICO, the Commerce
`Clause, the ADA, 28 U.S.C. § 1331, 18 U.S.C. § 1346, FCA, and FTCA) be
`dismissed because they are precluded by Eleventh Amendment immunity
`(Dkt. #100 at 22).
`
`
`
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`3 The first and ninth paragraphs in Plaintiff’s Objections are entitled/listed as objections; however, therein Plaintiff
`merely comments (as opposed to objects) on the Magistrate Judge’s report and recommendation (see Dkt. #101
`at 1, 5). Accordingly, the Court does not address such comments herein.
`4 Again, the TWU Defendants encompass Texas Woman’s University collectively with each of the Individual
`Defendants, Ann Stuart, Robert Neely, Ann Staton, Jennifer Martin, Daniel Miller, Barbara Presnall, AnaLouise
`Keating, Linda Rubin, Stephen Souris, Claire Sahlin, Christian Hart, and Danielle Phillips. The Individual
`Defendants include Ann Stuart, Robert Neely, Ann Staton, Jennifer Martin, Daniel Miller, Barbara Presnall,
`AnaLouise Keating, Linda Rubin, Stephen Souris, Claire Sahlin, Christian Hart, and Danielle Phillips.
`5
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`
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`

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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 6 of 20 PageID #: 683
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`(2) Each of Plaintiff’s claims against the Individual Defendants in their individual
`capacities (for defamation, fraud, intentional infliction of emotional distress,
`negligent infliction of emotional distress, public disclosure of private facts,
`negligence, the DTPA, Fourteenth Amendment violations, RICO, the
`Commerce Clause, the ADA, 28 U.S.C. § 1331, 18 U.S.C. § 1346, FCA,
`FTCA, Section 504, Title VII, Title IX, white collar crimes, conspiracy to
`defraud, entrapment, legacy preference corruption, and retaliation) be
`dismissed because they are precluded by qualified immunity (Dkt. #100 at
`29).
`
`(3) Plaintiff’s claims against the Individual Defendants in their individual
`capacities for violations of the Commerce Clause, 28 U.S.C. § 1331, 18
`U.S.C. § 1346, Title II, Title VII, Section 504, Title IX, defamation, fraud,
`intentional infliction of emotional distress, negligent infliction of emotional
`distress, public disclosure of private facts, negligence, civil conspiracy,
`entrapment, RICO, FCA, and DTPA be dismissed because such claims either
`do not exist and/or are inapplicable to this litigation (Dkt. #100 at 36).
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`(4) Plaintiff’s claims against the TWU Defendants in their official capacities for
`violation of Section 504, Title VII, and Title IX be dismissed for failure to
`state a claim (Dkt. #100 at 37-38).
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`(5) All of Plaintiff’s claims against the Individual Defendants in their individual
`capacities be dismissed for failure to state a claim (Dkt. #100 at 39-43).
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`(6) All of Plaintiff’s claims against the TWU Defendants in their official and
`individual capacities be dismissed for lack of standing (Dkt. #100 at 11).
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`Plaintiff has failed to specifically state and/or raise any objections which impact the findings by
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`the Magistrate Judge regarding (i) the TWU Defendants’ entitlement to Eleventh Amendment
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`immunity (except for Plaintiff’s Fourteenth Amendment claim discussed further infra), (ii) the
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`Individual Defendants’ entitlement to qualified immunity, and (iii) Plaintiff’s claims against the
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`Individual Defendants that either do not exist and/or are inapplicable to this litigation (see Dkt.
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`#100).
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`As such, the Court finds that these findings and conclusions of the Magistrate Judge are
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`correct and will be adopted as the findings and conclusions of the Court. Accordingly, Plaintiff’s
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`claims: (i) against the TWU Defendants in their official capacities for defamation, fraud,
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`6
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`

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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 7 of 20 PageID #: 684
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`intentional infliction of emotional distress, negligent infliction of emotional distress, public
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`disclosure of private facts, negligence, DTPA, RICO, the Commerce Clause, the ADA,
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`28 U.S.C. § 1331, 18 U.S.C. § 1346, FCA, and FTCA; (ii) against the Individual Defendants in
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`their individual capacities for defamation, fraud, intentional infliction of emotional distress,
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`negligent infliction of emotional distress, public disclosure of private facts, negligence, the
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`DTPA, Fourteenth Amendment violations, RICO, the Commerce Clause, the ADA, 28 U.S.C.
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`§ 1331, 18 U.S.C. § 1346, FCA, FTCA, Section 504, Title VII, Title IX, white collar crimes,
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`conspiracy to defraud, entrapment, legacy preference corruption, and retaliation; and (iii) against
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`the Individual Defendants in their individual capacities for violations of the Commerce Clause,
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`28 U.S.C. § 1331, 18 U.S.C. § 1346, Title II, Title VII, Section 504, Title IX, defamation, fraud,
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`intentional infliction of emotional distress, negligent infliction of emotional distress, public
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`disclosure of private facts, negligence, civil conspiracy, entrapment, RICO, FCA, and DTPA that
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`either do not exist and/or are inapplicable to this litigation are dismissed.
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`
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`The Court now addresses each of Plaintiff’s objections in turn and their impact, if any, on
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`Plaintiff’s remaining claim.5
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`I.
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`
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`Inaccessibly Heightened Pleading Standards
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`Plaintiff’s first objection contends that “somewhere along the way the pleading standards
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`increased to the point where the entire case may be thrown out now for ‘failure to state a claim
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`[before the benefit of discovery].’” Id. at 1. Plaintiff further contends that it is “impossible” to
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`state a “covert discrimination claim without even a basic investigation” and that “one remedy
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`may be to appoint an attorney who can reach these heightened pleading standards.”6 Id. The
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`TWU Defendants respond that the Magistrate Judge applied the correct federal pleading standard
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`5 The only claim remaining is Plaintiff’s claim against the TWU Defendants (in their official capacities) for alleged
`violations of the Fourteenth Amendment.
`6 The Court addresses Plaintiff’s separately filed Motion to Appoint Counsel (Dkt. # 102) infra.
`7
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`

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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 8 of 20 PageID #: 685
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`when determining Plaintiff failed to satisfy the pleading requirements (Dkt. #103 at 3). The
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`TWU Defendants further assert that Plaintiff’s first objection does not demonstrate why this was
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`the incorrect pleading standard. Id.
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`
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`The Magistrate Judge clearly stated the pleading requirements under the Federal Rules of
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`Civil Procedure, and applied that analysis correctly according to binding United States Supreme
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`Court precedent (see Dkt. #100 at 6-8, 30-43). The Magistrate Judge found, among other things,
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`Plaintiff failed to:
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`(1) Allege facts sufficient to demonstrate the Individual Defendants violated his
`constitutional rights (Dkt. #100 at 29);
`
`
`(2) State a claim against the Individual Defendants in their individual capacities
`for violation of the Commerce Clause, 28 U.S.C. § 1331, 18 U.S.C. § 1346,
`Title II, Title VII, Section 504, and Title IX, because no such cause of action
`exists and/or does not provide a basis for liability against the Individual
`Defendants (Dkt. #100 at 32);
`
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`(3) State a claim against the TWU Defendants in their official capacities for
`violation of Section 504, Title VII, and Title IX (Dkt. #100 at 36); and
`
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`(4) Allege facts sufficient to demonstrate a plausible claim against the Individual
`Defendants in their individual capacities (Dkt. #100 at 40).
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`Plaintiff’s allegations do not allow the Court to conclude that Plaintiff has sufficiently stated a
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`claim against the TWU Defendants in their official capacities and/or the Individual Defendants
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`in their individual capacities. See Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
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`Moreover, Plaintiff’s contention that his entire case is being thrown out for failure to state a
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`claim before the benefit of discovery is incorrect (Dkt. #101 at 1). Indeed, the Magistrate
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`Judge’s report and recommendation considering each of Plaintiff’s claims totaled forty-five
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`pages in length (see generally Dkt. #100). Plaintiff’s failure to state a claim was merely one of
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`the reasons Plaintiff’s claims were barred – in addition to Plaintiff’s lack of standing, Eleventh
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`8
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`

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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 9 of 20 PageID #: 686
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`Amendment immunity, and qualified immunity. Id. Accordingly, the Court finds that Plaintiff’s
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`first objection is overruled.
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`II.
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`The Magistrate Judge’s Analysis of Plaintiff’s DTPA Claim
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`
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`Plaintiff also objects to the Magistrate Judge’s analysis of Plaintiff’s DTPA claim against
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`the TWU Defendants (Dkt. #101 at 2). Specifically, Plaintiff contends that he previously
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`removed the DTPA cause of action and is confused because it now reappears in the TWU
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`Defendants’ Supplemental Brief and the Magistrate Judge’s report and recommendation. Id.
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`The Magistrate Judge addressed Plaintiff’s DTPA claims because Plaintiff referenced the DTPA
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`in his Fifth Amended Complaint (Dkt. #86 at 4). Thus, even if Plaintiff intended to remove this
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`cause of action, he nonetheless included language in his Fifth Amended Complaint suggesting
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`DTPA violations by the TWU Defendants, prompting the Magistrate Judge to address the
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`potential claim. Accordingly, Plaintiff’s second objection is overruled.
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`The Magistrate Judge’s Reference to and/or Reliance on the TWU Defendants’
`Supplemental Brief
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`Plaintiff also objects to the Magistrate Judge’s reference to and/or reliance on the TWU
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`III.
`
`
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`Defendants’ Supplemental Brief (Dkt. #101 at 2). Specifically, Plaintiff suggests that he was
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`prejudiced by the TWU Defendants’ failure to brief why Plaintiff’s remaining claims, not
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`dismissed on Eleventh Amendment immunity grounds, “‘must still be dismissed for failure to
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`state a claim.’” Id. (quoting Dkt. #96 at 15). Plaintiff further contends that he “had to quickly
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`learn the IRAC Method” and “a discussion by [the TWU] Defendants would have been helpful
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`to better understand any shortcomings in Plaintiff’s legal analysis of these claims using the IRAC
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`Method.” Id. The TWU Defendants’ Motions to Dismiss contain briefing as to each of
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`Plaintiff’s claims (see Dkts. #73; #78); moreover, the TWU Defendants’ Supplemental Brief was
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`filed in direct response to the Court’s Order directing them to further brief the Eleventh
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`9
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`

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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 10 of 20 PageID #: 687
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`Amendment immunity issue (Dkts. #103 at 4; #93). As such, Plaintiff’s suggestion that he was
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`somehow prejudiced because the TWU Defendants’ Supplemental Brief did not address the
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`failure to state a claim issue is unpersuasive. Particularly because, as noted earlier, the TWU
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`Defendants fully briefed each basis for dismissing Plaintiff’s claims in the underlying Motions to
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`Dismiss, including his failure to state a claim (see Dkts. #73; #78), and Plaintiff had full and fair
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`opportunity to respond to both the Motions to Dismiss and the TWU Defendants’ Supplemental
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`Brief.
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`
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`Plaintiff was also not prejudiced because he “had to quickly learn the IRAC Method.”
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`The “IRAC Method” of legal writing is merely a “mnemonic reminder of how to simply
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`organize legal argument consistent with propositional logic.” Brian K. Keller, Whittling:
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`Drafting Concise and Effective Appellate Briefs, 14 J. App. Prac. & Process 285, 295 (2013).
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`While most attorneys are familiar with the IRAC Method of legal writing, the Court does not
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`expect pro se plaintiffs to write in this manner in their pleadings with the Court. In fact, the
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`United States Supreme Court explains that “[a] document filed pro se is to be liberally construed
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`... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards
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`than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
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`quotation marks omitted). The Magistrate Judge liberally construed Plaintiff’s Fifth Amended
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`Complaint, and all of his other relevant filings, in accordance with United States Supreme Court
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`precedent (see generally Dkt. #100), and Plaintiff’s unfamiliarity with the IRAC Method of legal
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`writing does not affect the underling merits (or lack thereof) of his claims. Accordingly,
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`Plaintiff’s third objection is overruled.
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`10
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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 11 of 20 PageID #: 688
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`IV.
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`Alleged Factual Errors in the Magistrate Judge’s Report and Recommendation
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`
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`Plaintiff asserts three specific objections to the factual findings made by the Magistrate
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`Judge: (1) recounting of his grade appeal process; (2) characterization of his requested relief; and
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`(3) statement of Dr. Rubin’s attendance policy (Dkt. #101 at 2-3). The TWU Defendants assert
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`that even if the Magistrate Judge misstated these facts, the facts are arbitrary and trivial, and have
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`no impact on the ultimate outcome, and further, this Court would still not have subject matter
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`jurisdiction over Plaintiff’s claims or change his failure to meet the pleading requirements
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`(Dkt. #103 at 5). The Court addresses each alleged factual error in turn below.
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`
`
`
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`A.
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`The Magistrate Judge’s Recounting of Plaintiff’s Grade Appeal Process
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`First, Plaintiff objects to the Magistrate Judge’s factual account of the initiation of the
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`grade appeal process and his initial participation in it (Dkt. #101 at 2). The Magistrate Judge
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`describes Plaintiff’s participation in the initiation of the grade appeal process as “beginning with
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`a meeting with Dr. Rubin” (see Dkt. 100 at 3, 10). The Magistrate Judge further describes
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`Plaintiff’s participation in the grade appeal process as “voluntary.” Id. at 10. Plaintiff
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`specifically objects to these two statements because: (1) “Plaintiff never met with Dr. Rubin for
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`the first-level appeal” and (2) “participation was involuntary as Dr. Rubin never provided a grade
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`appeal consent form” (Dkt. #101 at 2). Plaintiff’s objections to the wording used by the
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`Magistrate Judge have no bearing on the Magistrate Judge’s recommended dismissal of his
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`claims against the TWU Defendants for both lack of subject matter jurisdiction and failure to
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`state a claim. The Magistrate Judge’s factual account of Plaintiff’s participation in the grade
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`appeal process does not affect in any way the application of the legal doctrines upon which
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`dismissal is based. This objection is overruled.
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`11
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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 12 of 20 PageID #: 689
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`
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`B.
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`The Magistrate Judge’s Characterization of Plaintiff’s Requested Relief
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`Second, Plaintiff objects to the Magistrate Judge’s characterization of the relief Plaintiff
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`requests in his Fifth Amended Complaint (Dkt. #101 at 3). Specifically, Plaintiff takes issue
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`with the Magistrate Judge’s statement that “Plaintiff has requested neither monetary damages nor
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`equitable relief.” Id. (quoting Dkt. #100 at 10). Plaintiff asserts that his Fifth Amended
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`Complaint does, in fact, request actual or compensatory damages. Id. (quoting Dkt. #100 at 10).
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`In his Fifth Amended Complaint, Plaintiff states, “[a]ccording to auditable and verifiable data by
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`U.S. News & World Reports, the after-taxes, lifetime earning of a Master’s degree are $2.67 to
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`$3.65 million. These are a type of detriment called actual or compensatory damages, which are
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`designed to replace what was lost.” (Dkt. #86 at 17, 21). Plaintiff advises the Court he intended
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`this to be an assertion that he was entitled to money damages (Dkt. #101 at 3). Notwithstanding
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`such assertion, also in his objections, Plaintiff seemingly disavows any request for money
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`damages, stating that he “does not want to appear greedy or cause financial hardship to his Alma
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`Matter, so he desires meaningful corrective action and a diplomatic resolution that acknowledges
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`the six-years [sic] of suffering [the TWU] Defendants’ frailties in character have caused to both
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`Plaintiff and his family.” Id.
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`
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`As an initial matter, Plaintiff’s citation to the U.S. News & World Reports, in his
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`seventy-nine page Fifth Amended Complaint, does not sufficiently state a request for monetary
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`relief (Dkt. #86 at 17, 21). Nevertheless, even assuming arguendo that it did, Plaintiff’s claims
`
`against the TWU Defendants in their official capacities for alleged violations of his Fourteenth
`
`Amendment rights would remain barred by Eleventh Amendment Immunity. The Supreme
`
`Court has expressly held that claims for constitutional violations do not abrogate a state entity’s
`
`entitlement to Eleventh Amendment immunity except if such claims seek to enjoin violations of
`
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`12
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`

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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 13 of 20 PageID #: 690
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`federal law (known as the “Ex parte Young exception”). Ex parte Young, 209 U.S. 123 (1908).
`
`To determine whether the Ex parte Young exception effectively avoids an Eleventh Amendment
`
`bar to suit, “a court need only conduct a ‘straightforward inquiry into whether [the] complaint
`
`alleges an ongoing violation of federal law and seeks relief properly characterized as
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`prospective.’” Verizon Maryland, Inc. v. Public Service Com’n of Maryland, 535 U.S. 635, 645-
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`46 (2002). Here, if Plaintiff’s citation to the U.S. News & World Reports is construed as a
`
`request for monetary relief, his Fourteenth Amendment claims are foreclosed by Eleventh
`
`Amendment immunity because the Ex Parte Young exception does not apply. See Smith v.
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`Sheeley, No. W-09-CA-002, 2009 WL 8712650, at *3 (W.D. Tex. Aug. 20, 2009) (“The Ex parte
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`Young exception has been narrowly interpreted to allow that, when a plaintiff sues a state official
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`alleging a violation of federal law, a federal court may award an injunction that governs the
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`official’s future conduct, but not one that awards retroactive monetary relief.”) (citing Pennhurst
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`State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984)). Accordingly, if Plaintiff intended,
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`by way of his Fifth Amended Complaint, to seek monetary relief, his Fourteenth Amendment
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`claims would be barred.
`
`
`
`However, Plaintiff’s objection seemingly indicates that his true objective is to obtain
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`injunctive relief (see Dkt. #103 at 3). The Court thus considered Plaintiff’s ability to pursue
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`Fourteenth Amendment claims in light of the injunction relief articulated. Plaintiff advances that
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`the relief he desires from this lawsuit is “meaningful corrective action and a diplomatic
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`resolution that acknowledges” his years of suffering at the hands of the TWU Defendants. Id.
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`The Court construes Plaintiff’s request for “meaningful corrective action and a diplomatic
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`resolution” as a request to be admitted into the Women’s Studies graduate program at TWU
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`and/or as a request to be given his Master’s degree in Women’s Studies. However, the Court is
`
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`13
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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 14 of 20 PageID #: 691
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`unable to order any such relief. First, Plaintiff seeks corrective, not prospective, action; and, in
`
`any event, the Fifth Circuit has held “[u]niversity officials should have broad discretionary
`
`power to determine the fitness of a student to continue his studies.” Keys v. Sawyer, 353 F.
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`Supp. 936, 940 (S.D. Tex. 1973). In fact, “[t]here is a compelling need and very strong policy
`
`consideration in favor of giving local school officials the widest possible latitude in the
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`management of school affairs.” Id. (citing Karr v. Schmidt, 460 F.2d 609 (5th Cir. 1972)).
`
`Moreover, federal courts should not override grading and similar decisions about academic merit
`
`unless these decisions so substantially depart from accepted academic norms as to demonstrate a
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`failure to exercise professional judgment. Id.    Accordingly, because Plaintiff’s request for
`
`“meaningful corrective action and a diplomatic resolution” is not relief that can be given by the
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`Court, Plaintiff’s Fourteenth Amendment claims must be dismissed for lack of standing and this
`
`objection is overruled. 
`
`
`
`
`
`C.
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`The Magistrate Judge’s Statement of Dr. Rubin’s Attendance Policy
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`Third, Plaintiff objects to the Magistrate Judge’s factual account of Dr. Rubin’s
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`attendance policy (Dkt. #101 at 3). The Magistrate Judge described Plaintiff’s rendition of
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`Dr. Rubin’s attendance policy as follows: “Plaintiff contends that Dr. Rubin deducted grade
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`points form his final grade for his absence from class to attend a Fulbright award ceremony, but
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`did not deduct points from other student attendees” (Dkt. #100 at 2). Plaintiff specifically
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`objects to this statement because he “does not yet know how Dr. Rubin treated other students in
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`terms of excused absences or if Dr. Rubin had other Fulbright finalist students in her class” (Dkt.
`
`#101 at 3). Plaintiff’s objection to the wording used by the Magistrate Judge once again is
`
`irrelevant to the Magistrate Judge’s recommended dismissal of his claims against the TWU
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`Defendants for both lack of subject matter jurisdiction and failure to state a claim. The
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`14
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`Case 4:14-cv-00571-ALM-CAN Document 105 Filed 03/24/16 Page 15 of 20 PageID #: 692
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`Magistrate Judge’s factual account of Dr. Rubin’s attendance policy and/or whether other
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`students were treated differently than Plaintiff does not affect the application of the legal
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`doctrines upon which dismissal is based. Moreover, the fact that Plaintiff does not know if other
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`similarly situated students were treated differently by Dr. Rubin bolsters the Magistrate Judge’s
`
`finding that Plaintiff failed to sufficiently plead that his Fourteenth Amendment equal protection
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`rights have been violated (see Dkt. #100 at 28) (“Plaintiff has also not identified (or asserted for
`
`that matter) that he was treated differently than any other similarly situated student.”). This
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`objection is overruled.
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`The Magistrate Judge’s Use of Subjective Language and Focus on Cosmetic Symptoms
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`Plaintiff’s fifth and sixth objections similarly take issue with the Magistrate Judge’s use
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`V.
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`
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`of particular phrases (Dkt. #101 at 3-4). Specifically, Plaintiff “has reservations about” th

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