SHULL v. CAST et al

Filing 99

ENTRY DISCUSSING MOTION TO DISMISS FOURTH AMENDED COMPLAINT - The Motion to Dismiss (Dkt 74 ) is GRANTED in part and DENIED in part. All claims against Indiana University are DISMISSED. All official capacity claims in which damages are sought are DISMISSED. Claims asserted in Counts 1-5, 7-17 of the Fourth Amended Complaint are DISMISSED. The claim in Count 6 shall proceed against the defendant individuals in their individual capacities only and for damages only. No partial final judgment shall issue at this time as to the claim(s) resolved in this Entry. Signed by Judge Tanya Walton Pratt on 9/19/2011. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
FREDERICK H. SHULL, JR.,
Plaintiff,
v.
WILLIAM R. CAST, et al.,
Defendants.

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Case No. 1:10-cv-0463-TWP-WGH

ENTRY DISCUSSING MOTION TO DISMISS FOURTH AMENDED COMPLAINT
For the reasons explained in this Entry, the Defendants’ Motion to Dismiss the Fourth
Amended Complaint is granted in part and denied in part.
I. BACKGROUND
Frederick H. Shull, Jr., has sued Indiana University (“IU”), its Trustees, administrators
and administrative assistants.

Shull alleges that the IU School of Medicine (IUSM)

discriminated against him in 2009 and in 2010 by denying him the opportunity to apply to the
IUSM’s Master of Science in Medical Science (MSMS) and Medical Doctorate (MD) programs
solely on the basis of his race.
The operative pleading setting forth his claims is his Fourth Amended Complaint
(“FAC”) filed on October 27, 2010. The Defendants collectively, have appeared by counsel and
have filed a Motion to Dismiss Plaintiff’s FAC (Dkt. No. 74) pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure.
II. LEGAL STANDARD
When evaluating a motion to dismiss such as filed by the Defendants, the court takes all
facts alleged in the complaint as true and makes all reasonable inferences in favor of the non-

moving party. Pisciotta v. Old National Bancorp, 499 F.3d 629, 633 (7th Cir. 2007). Federal
Rule of Civil Procedure 8(a)(2) requires only that a pleading contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). It is not
required that a complaint state detailed factual allegations; however, “[f]actual allegations must
be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2004). In other words, the complaint must include enough facts to state a
claim of relief which is “plausible on its face.” Id. at 570. A claim is facially plausible if the
complaint contains facts that allow the court to “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
III. DISCUSSION
The twenty (20) Defendants have created a chart cataloging the counts in the FAC with
the cause of action which is asserted and the particular Defendant(s) against whom the claim is
asserted. The Court’s version of this chart is the following:
Count
1
2
3
4
5
6
7
8
9

10

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Cause of Action
disregard of the duty against criminal counterfeiting
disregard of duty against criminal official misconduct
incompetent implementation of academic programs which
are racially discriminatory or unfairly administered
disregard of affirmative duty to protect Plaintiff from biased
or unfair conduct from agents of IU
disregard of duty against Indiana’s criminal violation of
civil right
42 U.S.C. § 1983 – deprivation of right to equal protection
on basis of race and equal treatment under the law
disregard of duties imposed by 18 U.S.C. § 242
disregard of duties imposed by 18 U.S.C. § 241
failing to consider Plaintiff’s 2009 applications to IU School
of Medicine in unbiased, fairly administered and
nondiscriminatory manner
failing to consider Plaintiff’s 2009 applications to IU School
of Medicine in unbiased, fairly
administered and nondiscriminatory manner
failing to consider Plaintiff’s 2010 applications to IU School
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Defendant(s)
All except Brutkiewicz
All
All
All
All except Brutkiewicz
All
All except Brutkiewicz
All except Brutkiewicz
Agbor-Baiyee,
Matthews, Smartt
and IU
Agbor-Baiyee,
Matthews, Smartt
and IU
All except Brutkiewicz

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13
14
15
16

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of Medicine in unbiased, fairly administered and
nondiscriminatory manner
failing to consider Plaintiff’s 2010 applications to IU School
of Medicine in unbiased, fairly
administered and nondiscriminatory manner
breach of affirmative duty to protect Plaintiff from
racial discrimination
breach of affirmative duty to protect
Plaintiff from racial discrimination
failing to properly train and supervise IU employees with
regard to racial discrimination and unbiased conduct
breach of duty to implement and conduct academic
programs that are unbiased, fairly administered and
nondiscriminatory
breach of duty to implement and conduct
academic programs that are unbiased, fairly administered
and nondiscriminatory

All except Brutkiewicz

All except Brutkiewicz
All except Brutkiewicz
All except Brutkiewicz
and Smart
All

All

The defendant individuals are sued in both their individual and their official capacities.
Certain principles operate generically here, separate from the individual counts in the
FAC. “[A] suit against a[n] ... official in his or her official capacity is not a suit against the
official but rather is a suit against the official's office.” Will v. Michigan Dep't of State Police,
491 U.S. 58, 71 (1989). Thus, claims against the Defendant individuals are in all respects other
than name, against IU. Insofar as Shull seeks damages those claims are, moreover, duplicative
of the claim against IU itself. For that reason, the official capacity claims for damages against
the defendant individuals must be dismissed.
IU is entitled to partake of Indiana’s immunity under the Eleventh Amendment as to the
claims asserted against it.

Peirick v. Indiana University-Purdue University Indianapolis

Athletics Dept., 510 F.3d 681, 695 (7th Cir. 2007). The Defendants’ argument that Shull’s claim
for injunctive relief is moot must be rejected. The reason for this ruling is that Shull applied for
admission to the IUSM and to the MSMS program in the past and states that he may do so again
in the future. His acceptance at a different school does not render it implausible that he will seek
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a transfer.
The request for prospective injunctive relief cannot be pursued against IU directly, but
must be brought pursuant to the theory recognized in Ex parte Young, 209 U.S. 123, 159-60
(1908). Such a claim is brought against a state official in his or her official capacity only.
Greenawalt v. Indiana Dept. of Corrections, 397 F.3d 587, 589 (7th Cir. 2005) (noting that 42
U.S.C. § 1983 “does not permit injunctive relief against state officials sued in their individual as
distinct from their official capacity”) (citing Luder v. Endicott, 253 F.3d 1020, 1024-25 (7th Cir.
2001)). Again, however, redundancy will be eliminated. Accordingly, the claim for prospective
injunctive relief will remain as to the defendants who are IU Trustees and in their official
capacities only, and will be dismissed as to the remaining Defendants.
Further, the Court finds that the FAC states a plausible claim that the IUSM had and
practiced a racially discriminatory admissions policy for the IUSM and for the MSMS program.
Certain of the claims, however, are not based on a right to recover associated with these
allegations and with others in the FAC.
Shull was not admitted to the IUSM for either the MD program or the MSMS program.
There is no plausible allegation that a contract existed between IU and Shull. The Court
construes Counts 10, 14, 16, and 17 of the FAC as alluding to an alleged breach of contract. The
counts premised on a breach of contract are dismissed.
The Court likewise denies Shull’s request in his response to the motion to dismiss to
further amend the complaint to add claims for breach of contract, because any such claim would
not survive a motion to dismiss. See, e.g., Arlin–Golf, LLC v. Village of Arlington Heights, 631
F.3d 818, 823 (7th Cir. 2011); London v. RBS Citizens, N.A., 600 F.3d 742, 747 n.5 (7th Cir.
2010).
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There is no private cause of action associated with the statutes or the harm specified in
Counts 1, 2, 5, 7, and 8. These counts are dismissed.
Counts 3, 4, 9, 11, 12, 13, and 15 are duplicative of the claim asserted in Count 6 and are
to a large extent downright hyperbole. These counts are dismissed.
IV. CONCLUSION
The Motion to Dismiss [Dkt 74] is GRANTED in part and DENIED in part, consistent
with the following:
1.

All claims against Indiana University are dismissed.

2.

All official capacity claims in which damages are sought are dismissed.

3.

The claim for prospective injunctive relief shall proceed only against the

Defendants who are IU Trustees and against them only in their official capacities. These are
Defendants William R. Cast, Patrick A. Shoulders, Philip N. Eskew, Jr., Stephen L. Ferguson,
Jack M. Gill Thomas E. Reilly, Jr., Abbey R. Stemler, and Sue H. Talbot.
4.

Claims asserted in Counts 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, and 17 of

the FAC are dismissed.
5.

The claim in Count 6 shall proceed against the defendant individuals in their

individual capacities only and for damages only.
No partial final judgment shall issue at this time as to the claim(s) resolved in this Entry.

SO ORDERED.
09/19/2011
DATE: _____________

________________________
Hon. Tanya Walton Pratt, Judge
_____________________________
United States District Pratt, Judge
Hon. Tanya Walton Court
Southern States District Court
United District of Indiana
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DISTRIBUTION:
Frederick H. Shull, Jr.
1008 West Third Street
Connersville, Indiana 47331
Michael Rosiello
Barnes & Thornburg LLP
[e-mail]
Scott E. Murray
Barnes & Thornburg LLP
[e-mail]

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