MAXBERRY v. ITT TECHNICAL INSTITUTE et al

Filing 25

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS - Plaintiff's Complaint is dismissed for the within stated reasons. Plaintiff is, however, granted leave to file an amended complaint. If he chooses to do so, his amended complaint must not include claims that are encompassed or inextricably intertwined with the Wisconsin judgment, and he must take care to comply with Fed. R. Civ. P. 8. Plaintiff shall have through and including March 28, 2014, to file his amended complaint. If he does not comply with this deadline, a final judgment in favor of Defendant shall issue. Signed by Judge Sarah Evans Barker on 3/5/2014. Copy Mailed. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DENNIS LEE MAXBERRY,
Plaintiff,
vs.
ITT TECHNICAL INSTITUTE, LLC,
Defendant.

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1:13-cv-409- SEB-DML

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
(Docket No. 14)
INTRODUCTION
This case, filed by Plaintiff pro se, arises out of Plaintiff’s enrollment as a student at ITT
Technical Institute, LLC (“Defendant”).1 It is now before the Court on Defendant’s Motion to
Dismiss or, in the Alternative, Stay This Action and Compel Arbitration.2 For the reasons set forth
below, Defendant’s Motion to Dismiss is GRANTED.
FACTS
On or about April 28, 2008, Plaintiff and Defendant entered into a written agreement
governing the terms of Plaintiff’s enrollment as a student with Defendant. [Affidavit of John

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On its website at www.2.itt-tech.edu/itt-tech/about.cfm, Defendant describes itself as
“a leading private college system focused on technology-oriented programs of study . . .
[offering] career-focused, degree programs to over 70,000 students.”
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Also before the Court are Plaintiff’s Motion for Summary Judgment (Dkt. No. 10),
Plaintiff’s Memorandum Summary (Dkt. No. 12), and Plaintiff’s Motion and Request Leave of
Court to File Clarity for Summary Judgment (Dkt. No. 18). As noted in the Magistrate Judge’s
Entry and Order from Pretrial Conference at Docket No. 19, Plaintiff has informed the Court that
those filings were made in opposition to Defendant’s efforts to dismiss this case. Accordingly,
those filings collectively constitute Plaintiff’s response to Defendant’s Motion to Dismiss and, as
such, the Clerk may administratively “terminate” them as separate and independent motions.

Leonard with attached Enrollment Agreement (Dkt. No. 15-8).] The agreement provided that any
dispute between the parties was to be resolved through binding arbitration. Id. Plaintiff had a
dispute with Defendant, but instead of submitting his dispute to arbitration, he filed a lawsuit against
Defendant in the State of Wisconsin, Milwaukee County Circuit Court. [Wisconsin Complaint (Dkt.
No. 15-3).] In response to that lawsuit, Defendant filed a Motion to Stay and Compel Arbitration,
which was “granted as to arbitration” on April 30, 2012. [Order (Dkt. No. 15-4).] Plaintiff appealed
that ruling, first, to the Wisconsin Court of Appeals, which dismissed the appeal for lack of
jurisdiction, and, then, to the Wisconsin Supreme Court, which denied review. [Opinion (Dkt. No.
15-7 & Order (Dkt. No. 15-8).]
On March 11, 2013, Plaintiff filed the action herein. Plaintiff’s Complaint is confusing,
disjointed, and difficult to decipher, but it appears that Plaintiff accuses Defendant of stealing his
federal student loan money, failing to award him grades for the classes that he completed, and
applying money from his educational loans towards tuition payments even after he withdrew from
school. [Complaint (Dkt. 1).] Plaintiff also accuses Defendant of “being unconscious to the plaintiff
by arbitrating the contract,” searching his person or property “without a warrant and without
probable cause,” using excessive force upon him, failing to provide him with “needed medical
care,” “false credit testimony, mayhem on property, defamation, false imcriminalization [sic],
malicious prosecution, conspiracy, and/or any other claim that may be supported by the allegations
of this complaint.” Id. Plaintiff’s Complaint makes reference to 28 U.S.C. § 1983, 1985, and 1986,
“Title IX, and Section 504 of the 1973 Rehabilitation Act,” the “False claim act,” and avers that
“[t]he criminal proceeding by the defendants . . . [is] still pending,” but that Plaintiff “was innocent.”
Id.

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DISCUSSION
Defendant moves to dismiss Plaintiff’s Complaint on two independent grounds. First,
Defendant asserts that Plaintiff has already been ordered by a Wisconsin court to arbitrate his claims
against Defendant, which order must be given effect by this Court, thereby preventing this Court
from acquiring subject matter jurisdiction under the Rooker-Feldman doctrine. Second, Defendant
argues that even if the Rooker-Feldman doctrine does not bar this Court from exercising jurisdiction,
Plaintiff’s Complaint must still be dismissed because it is so rambling and indecipherable that it does
not provide Defendant with fair notice of Plaintiff’s claims as required by Rule 8 of the Federal
Rules of Civil Procedure.
I.

The Rooker-Feldman doctrine bars this Court from exercising
jurisdiction over the claims already ordered to arbitration in
Wisconsin.

Turning first, as we must, to Defendant’s jurisdictional argument, Defendant asserts that
Plaintiff’s Complaint must be dismissed pursuant to the Rooker-Feldman doctrine because: (1)
Plaintiff filed similar or substantially similar claims against Defendant in Wisconsin;3 (2) the courts
in Wisconsin have already ruled that Plaintiff must arbitrate his claims; and (3) the action herein
seeks to have this Court review and reverse the Wisconsin judgment.
The Rooker-Feldman doctrine, which gets its name from two United States Supreme Court
decisions – Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983) – prohibits federal courts from exercising jurisdiction

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In the Wisconsin suit, Plaintiff alleged that Defendant harassed him by signing his
name to documents, attempted to stalk him, and attempted to “buy off” his attorneys. (Dkt. No.
15-3). Plaintiff further alleged that Defendant discriminated against him because of his
heterosexuality, race, and disability, and would not allow him to pass his classes. Id. Plaintiff
referenced a bank account and an unemployment claim and demanded that Defendant “repay the
false bills that they are adding to the plaintiff’s credit.” Id.
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over: (1) claims seeking the review of a prior state court judgment; and (2) claims that are
“inextricably intertwined” with a prior state court judgment. Kelley v. Med-1 Solutions, LLC, 548
F.3d 600, 603 (7th Cir. 2008). The Seventh Circuit Court of Appeals has recognized that the term
“inextricably intertwined” is “a somewhat metaphysical concept,” but emphasized that the central
inquiry under Rooker-Feldman is “whether the federal plaintiff seeks to set aside a state court
judgment or whether he is, in fact, presenting an independent claim.” Taylor v. Federal Nat. Mortg.
Ass’n, 374 F.3d 529, 533 (7th Cir. 2004).
To determine whether Plaintiff has filed this lawsuit in order to set aside the Wisconsin
judgment or whether he is presenting different and independent claims, we examine his various
filings. In doing so, it is evident that Plaintiff does, in fact, object to the Wisconsin ruling requiring
him to submit to arbitration and that he has filed this action, at least in part, to have us review that
ruling. Indeed, in his Complaint, he writes:
[Defendant] inappropriately breached contract by being unconscious
to the plaintiff by arbitrating the contract before the plaintiff had
breached his performance by stating the plaintiff had previously
defaulted on his loans, through hearsay testimony, prejudicial
evidence creating unconscionable question and then unconventionally
keeping the plaintiff from getting grades, Title IX, and section 504 of
the 1973 Rehabilitation Act.
Dkt. No. 1 at p. 3 (Page ID #3) (emphasis added). In his Memorandum Summary filed at Docket
No. 20, he states:
The Plaintiff first filed his claim in the State of Wisconsin Circuit
Court then the State of Wisconsin Court of Appeals, and the Supreme
Court of Wisconsin who dismissed the case stating, “No cost to the
Plaintiff or the Defendant.” Plaintiff filed a case in this the United
States Federal Court of the District in Indiana. The Plaintiff has
never agreed to Arbitration and and [sic] states that due to the need
to have his Masters degree was the only third cause reason he had for
attempting his Financial Needs see Administrative Procedure Act,
Department of Education Act 1973 Section 504 rehabilitation request
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was denied by the defendants.
Dkt. No. 20 at p. 10 (Page ID #192) (emphasis added). In that same Memorandum Summary he
says:
APPEALED FROM DECISION
The State of Wisconsin Supreme Court stated that the opinion was
“No Cost, to Plaintiff or Defendant.”
Dkt. No. 20 at p. 33 (Page ID #215) (emphasis added). And, in his Separate Statement of
Undisputed Facts filed at Docket No. 22, he asserts:
[Defendant] whose arbitration by lobbying violates the rules of
lobby because they don’t have lobby license, and therefore the
arbitration is forced on the plaintiff as stated in the Order of the
State of Wisconsin Supreme Court that order no one owes anyone
else. But yet they call the plaintiff everyday seeking funds for
their expense account which is punitive at Armenriaz vs.
Foundations Health Psychcare Inc., 24 Cal 4th 83 (2000).
Dkt. No. 22 at p. 5 (Page ID # 266) (emphasis added).
Based on the above-quoted passages and, in particular, Plaintiff’s use of the phrase,
“APPEALED FROM DECISION,” after which he immediately references the Wisconsin Supreme
Court’s “opinion,” it is apparent that Plaintiff would have this Court consider on “appeal” the
Wisconsin ruling – which is precisely what Rooker-Feldman precludes. Thus, to the extent that
Plaintiff would have us (1) reconsider the Wisconsin judgment itself and/or (2) entertain the same
claims that the Wisconsin courts have already ordered to arbitration, including any claims that are
inextricably intertwined with the Wisconsin judgment, we lack subject matter jurisdiction to do so,
and those aspects of Plaintiff’s Complaint are DISMISSED.

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II.

Whatever different or independent claims plaintiff might have
intended to assert in this Court are dismissed for their lack of
coherency.

We now turn to the question of whether Defendant has asserted any different or independent
claims in this action over which we might have jurisdiction. In doing so, we observe that Plaintiff’s
Complaint on our docket is not identical to the complaint that Plaintiff filed in Wisconsin. Indeed,
the Complaint herein references a number of subjects not referenced in the Wisconsin complaint,
including Defendant’s alleged search of Plaintiff’s person and property, Defendant’s failure to
provide Plaintiff with needed medical care, excessive force, a conspiracy to violate Plaintiff’s
federal constitutional rights, criminal proceedings against Plaintiff, defamation, “white collar
crimes,” “false credit testimony,” and “mayhem on property.” Plaintiff’s filings in this Court also
reference Plaintiff’s non-use of illegal drugs, teasing and harassment by other students, the Ku Klux
Klan, Plaintiff’s lack of membership in a fraternity or sorority, Plaintiff’s dislike of brown sugar
Kringles donuts, Plaintiff’s alleged status as a Disabled American Veteran, free speech, the Social
Security Act, the Supremacy Clause, and Plaintiff’s patents and/or patent applications.
Because Plaintiff’s Complaint herein is not identical in all respects to the complaint that he
filed in Wisconsin, Plaintiff might be asserting claims in this action that are not encompassed by the
Wisconsin judgment. However, his Complaint and other filings in this Court are so rambling,
disjointed, and confused that what exactly those claims might be and the basis for this Court’s
jurisdiction over such claims is far from clear.
Because Plaintiff is proceeding pro se, we are required to construe his Complaint liberally.
Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). Even so, district courts still have the authority
to dismiss a pro se complaint that is incoherent and confusing. See Fidelity Nat’l Title Ins. Co. v..
Intercounty Nat’l Title Ins. Co., 412 F.3d 745, 749 (7th Cir. 2005) (a district court judge has the
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authority to dismiss a complaint that is “sprawling, confusing, redundant – in short a mess.”).
Assuming that Plaintiff is asserting legal claims in this action that are different and independent
from those asserted in Wisconsin, they are nevertheless cast in such an incoherent and confusing
manner that they must be dismissed under Fed. R. Civ. P. 8(a) based on Plaintiff’s failure to give
Defendant (as well as the Court) fair notice of what they actually are. Id. See also Lindell v.
McCallum, 352 F.3d 1107, 1110 (7th Cir. 2003) (if a complaint’s lack of clarity makes it
unintelligible, dismissal under Fed. R. Civ. P. 8(a) is permitted).
CONCLUSION
Plaintiff’s Complaint is dismissed for the above stated reasons. Plaintiff is, however, granted
leave to file an amended complaint. If he chooses to do so, his amended complaint must not include
claims that are encompassed or inextricably intertwined with the Wisconsin judgment, and he must
take care to comply with Fed. R. Civ. P. 8. Plaintiff shall have through and including March 28,
2014, to file his amended complaint. If he does not comply with this deadline, a final judgment in
favor of Defendant shall issue.
IT IS SO ORDERED.
Date:

03/05/2014
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana

Copies to:
DENNIS LEE MAXBERRY
P. O. Box 14081
West Allis, WI 53214

Todd A. Dixon
BARNES & THORNBURG LLP
[e-mail]
T. Joseph Wendt
BARNES & THORNBURG LLP
[e-mail]
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