STRAW v. INDIANA SUPREME COURT et al
ORDER granting State Defendants' 23 Motion to Dismiss and granting EEOC's 29 Motion to Dismiss. (cm). Signed by Judge Richard L. Young on 1/28/2016. (TMD)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
ANDREW U. D. STRAW,
INDIANA SUPREME COURT,
BRENDA FRANKLIN RODEHEFFER,
LILIA GEORGIV JUDSON,
KEVIN SEAN SMITH, and U.S. EQUAL
ENTRY ON MOTIONS TO DISMISS
Plaintiff, Andrew U. D. Straw, proceeding pro se, filed a 61-page Second
Amended Complaint (“SAC”) seeking monetary and injunctive relief against the Indiana
Supreme Court, and three of its employees, Brenda Franklin Rodeheffer, Lilia Georgiev
Judson, and Kevin Sean Smith (“State Defendants”). Plaintiff alleges the State
Defendants violated Title I, Title II, and Title V of the Americans with Disabilities Act
(“ADA”) (Count I), and that they violated his rights to free speech and equal protection
under the First and Fourteenth Amendments to the United States Constitution (Count II).
Plaintiff also seeks monetary damages from the Equal Employment Opportunity
Commission (“EEOC”), alleging the EEOC violated his Fifth Amendment right to due
process. Both the State Defendants and the EEOC move to dismiss Plaintiff’s SAC.
Having read and reviewed the parties’ submissions and the applicable law, the court finds
the State Defendants’ and the EEOC’s motions to dismiss should be GRANTED.
Plaintiff graduated from the Indiana University-Mauer School of Law in
approximately 1998. (SAC ¶¶ 11, 14). Plaintiff suffers from both physical and mental
disabilities. His physical disabilities arose from a head-on vehicular accident in 2001;
and his mental disability, bipolar disorder, arose in approximately 1998 following the
death of his mother. (Id. ¶¶ 11, 27). Since that time, Plaintiff has been hospitalized for
bipolar disorder ten times. (Id. ¶ 11).
Following graduation from law school, Plaintiff was admitted to practice law in
Virginia and worked there until he moved back to Indiana in the summer of 2000. (Id. ¶¶
17-25, 56). In August of 2000, Plaintiff was hired by Ms. Judson, Executive Director of
the Indiana Supreme Court’s Division of State Court Administration (“STAD”), as a
Statistical Analyst. (Id. ¶ 26 and Ex. J).
In November 2001, Plaintiff applied to take the Indiana Bar Exam. (Id. ¶ 45). As
part of the application, Plaintiff disclosed that he had bipolar disorder. (Id.). He took the
Bar Exam in February 2002 and passed. (Id. ¶¶ 55-56). Due to his mental disability,
however, the Indiana State Board of Law Examiners informed him he would receive
“Conditional Admission” to the practice of law if he signed a Consent Agreement. (Id. ¶
58 and Ex. W). The Consent Agreement required Plaintiff to submit quarterly
statements from his psychiatrist and therapist establishing that his bipolar disorder was
being successfully managed. (Id.). The Consent Agreement lasted a minimum of two
years, at which time the Board would decide whether to remove those conditions and
admit him unconditionally to practice law. (Id.). Plaintiff alleged that Conditional
Admission to the practice of law was so upsetting that on the night of his swearing in, he
called his doctor who ordered he be off work for four weeks. (Id. ¶ 60). Plaintiff alleges
that when he returned to work in July 2002, Ms. Judson fired him. (Id. ¶ 61).
In 2003, Plaintiff moved to New Zealand with his then wife. (Id. ¶ 67). He
returned to Indiana in 2010. (Id.).
On March 4, 2014, Plaintiff asked the STAD to hire him “to address the disability
rights matters [he] had experienced.” (Id. ¶ 73). However, the Director of Employment
Law Services for STAD, Ms. Rodeheffer, informed him that no position was available.
(Id. ¶ 73 and Ex. V).
On August 15, 2014, Plaintiff filed a Petition for Redress of Grievances because
he felt his constitutional and human rights had been violated by the Indiana Supreme
Court over a long period of time. (Id. ¶ 74 and Ex. Z). In the Petition, he stated that the
Court engaged in disability-based discrimination in the bar application process and
during his time as an employee of the STAD. (Id. Ex. Z at 1). The Clerk of the Indiana
Supreme Court, Mr. Smith, notified Plaintiff by letter that the Plaintiff’s Petition was not
a case or controversy within the Supreme Court’s jurisdiction and therefore, the Court
would not be taking any action on the matter. (Id. ¶ 75 and Ex. AA). After Plaintiff
submitted the Petition again, Mr. Smith referred the Petition to Ms. Rodeheffer. (Id. ¶
77). She responded to Plaintiff by email on September 19, 2014, explaining the State
Defendants’ position that Plaintiff did not have any valid claims against them. (Id. ¶ 77
and Ex. CC).
On September 3, 2014, Ms. Rodeheffer filed a disciplinary complaint against
Plaintiff with the Indiana Supreme Court Disciplinary Commission stating that Plaintiff’s
“mental health problems have become sufficiently severe that I believe he is not
competent to practice law.” (Id. ¶ 80). She noted that Plaintiff had “filed multiple
lawsuits in the last month that are nonsensical,” including, but not limited to, a Complaint
against fifty law schools asking for “the disability statistics of law school classes,” the
Petition for Redress with the Indiana Supreme Court, and a lawsuit instituted by Plaintiff
against his former client and her attorney after the former client sued him for malpractice
(referenced as Straw v. Sconiers in the designated materials attached to the SAC). (Id.
Ex. EE and ¶ 109).
Around this time period, Plaintiff filed a complaint with the Indiana Civil Rights
Commission (“ICRC”) complaining that the Indiana Democratic Party Headquarters in
South Bend, Indiana, were not handicap-accessible. (Id. ¶ 132). Plaintiff alleges the
ICRC “refused to enforce the law” because disabled people could “park across the
street.” (Id. ¶ 133). The ICRC issued a No Probable Cause finding in 2013. (Id. ¶ 134).
At some point, Plaintiff filed a lawsuit against the Indiana Democratic Party entitled
Straw v. Indiana Democratic Party. 1 The court presumes that he lost at least at the
Plaintiff did not allege when or where he filed the lawsuit and did not provide a cause number
for the same.
appellate level, because he filed a request for transfer to the Indiana Supreme Court on
September 3, 2014. (Id. ¶ 137).
The State Defendants assert, and the Plaintiff does not deny, that he filed his
charge of discrimination with the EEOC on December 4, 2014 against the State
Defendants for their “actions as an ex-employer . . . based on violations of the Civil
Rights Act of 1964, Title VII, and the [ADA].” (Id. ¶ 155). Plaintiff received a Notice of
Right to Sue from the EEOC on March 31, 2015. (Id. ¶ 155 and Ex. WW). The Notice
stated that “the EEOC is unable to conclude that the information obtained establishes
violations of the statutes.” (Id., Ex. WW).
On February 27, 2015, the Indiana Supreme Court denied Plaintiff’s request for
transfer in Straw v. Indiana Democratic Party, 93A02-1406-EX-399 (Ind.).
Plaintiff filed the present action on June 28, 2015, seeking over $30 million from
the State Defendants and $10 million from the EEOC. In Count I of the SAC, Plaintiff
alleges the State Defendants violated Title I, Title II, and Title V of the ADA, and in
Count II, he alleges the State Defendants violated his First Amendment right to petition
the government for redress of grievances, and violated his Fourteenth Amendment right
to equal protection. In Count III, Plaintiff alleges the EEOC violated the Fifth
Amendment by failing to conduct an investigation into his charges of discrimination
against the State Defendants. Plaintiff’s constitutional tort claims are brought under 42
U.S.C. § 1983 (“Section 1983”). In addition to monetary damages, Plaintiff seeks
injunctive relief; in particular, he asks the court to order that his “employment file be
destroyed at the Indiana Supreme Court and replaced with a document from the Chief
Justice stating that [his] work and sacrifice for the Indiana Supreme Court and the State
of Indiana were exemplary and a positive model that helped all Hoosiers . . . .” (Id. ¶
148) (emphasis in original).
On September 14, 2015, the State Defendants filed a Motion to Dismiss Plaintiff’s
Second Amended Complaint. Two weeks later, the EEOC also filed a Motion to Dismiss
the Second Amended Complaint. Both motions are brought under Rules 12(b)(1) for lack
of subject matter jurisdiction, 12(b)(5) for insufficiency of service of process, and
12(b)(6) for failure to state a claim, and are fully briefed. On November 16, 2015,
Plaintiff filed a Motion for Leave to file a Third Amended Complaint. The Magistrate
Judge denied that Motion, finding the amendment would be futile. (Filing No. 51). The
Magistrate Judge also analyzed whether the Second Amended Complaint could withstand
a motion to dismiss. She concluded that it could not.
Standard of Review
The Seventh Circuit considers Eleventh Amendment immunity to be a
jurisdictional bar. See Crosetto v. State Bar of Wisconsin, 12 F.3d 1396, 1401 & n.8 (7th
Cir. 1993), cert. denied, 511 U.S. 1129 (1994). “When considering a motion to dismiss
under Rule 12(b)(1), the district court may properly look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been submitted on the issue
to determine whether in fact subject matter jurisdiction exists.” Estate v. Eiteljorg ex.
Rel. Eiteljorg v. Eiteljorg, 813 F. Supp. 2d 1069, 1074 (S.D. Ind. 2011) (quoting Capitol
Leasing Co. v. F.D.I.C., 999 F.2d 188, 191 (7th Cir. 1993)). In resolving the motion, the
court accepts the well-pleaded allegations from the complaint as true and draws all
reasonable inferences in the plaintiff’s favor. Id. (citing Franzoni v. Hartmarx Corp., 300
F.3d 767, 771 (7th Cir. 2002)).
Federal Rule of Civil Procedure 12(b)(5) permits a party to seek dismissal of a
matter based upon insufficiency of process. When a defendant challenges the sufficiency
of service, the plaintiff bears the burden of demonstrating that proper service occurred.
Cardenas v. City of Chicago, 646 F.3d 1001, 1005 (7th Cir. 2011). In determining
whether service was effective, the court may consider affidavits and other documentary
evidence. Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782-83 (7th
Federal Rule of Civil Procedure 12(b)(6) authorizes the dismissal of claims for
“failure to state a claim upon which relief may be granted.” Fed. R. Civ. P. 12(b)(6).
The purpose of a motion to dismiss is to test the legal sufficiency of the complaint, not
the merits of the lawsuit. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir.
2001). A court may grant a Rule 12(b)(6) motion to dismiss only if a complaint lacks
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A complaint sufficient on its face need not give
“detailed factual allegations,” but it must provide more than “labels and conclusions, and
a formulaic recitation of the elements of a cause of action.” Id. at 555. The court accepts
all well-pleaded factual allegations in the complaint as true and draws all reasonable
inferences in favor of the plaintiff. See Yeksigian v. Nappi, 900 F.2d 101, 102 (7th Cir.
In addition to the allegations of the complaint, the court may consider “documents
that are attached to the complaint, documents that are central to the complaint and are
referred to in it, and information that is properly subject to judicial notice.” Williamson v.
Curran, 714 F.3d 432, 436 (7th Cir. 2013) (citing cases). Here, Plaintiff attached to his
SAC 57 exhibits. Because they are central to his SAC and are referenced in it, the court
will consider them for purposes of the motions to dismiss.
The court will begin with the State Defendants’ motion to dismiss.
Service of Process
The State Defendants first assert that Plaintiff has insufficient service of process
on them. Pursuant to Rules 4(e)(1) and 4(j)(2) of the Federal Rules of Civil Procedure,
the court applies the Indiana Rules of Trial Procedure in determining whether service was
proper. Indiana Trial Rule 4.1 provides:
(A) Service may be made upon an individual, or an individual acting in a
representative capacity, by:
(1) sending a copy of the summons and complaint by registered or certified
mail or other public means by which a written acknowledgment of receipt
may be requested and obtained to his residence, place of business or
employment with return receipt requested and returned showing receipt of
the letter . . . .
Ind. T.R. 4.1(A)(1). Indiana Trial Rule 4.6 provides for service on a governmental
organization “upon the executive officer thereof and also upon the Attorney General.”
Ind. T.R. 4.6(A)(2). “Indiana Trial Rules 4.1 and 4.6 combine to allow the use of
certified mail to serve an individual that is part of a governmental organization by
mailing the documents to his or her place of business or employment with return receipt
requested.” Moreno-Avalos v. City Hall of Hammond, Ind., No. 2:13-CV-347-TLS, 2014
WL 3894349, at *2 (N.D. Ind. Aug. 8, 2014) (citing Ind. T.R. 4.1(A)(1) & 4.6(A)-(B)).
In this case, Plaintiff filed proof of service of the summons and complaint by
certified mail. (Filing Nos. 11-13). Based on what he has produced, his proof of service
is insufficient, however, because a written acknowledgement of receipt was not requested
and not returned pursuant to Indiana Trial Rule 4.1. In addition, Plaintiff served copies
for the Indiana Supreme Court and the Attorney General on the Governor’s Office. The
service of process on the State Defendants was, therefore, insufficient.
Count I Against the State Defendants
In Count I, Plaintiff alleges the State Defendants violated Titles I, II, and V of the
Title I of the ADA
Title I of the ADA states:
No covered entity shall discriminate against a qualified individual on the
basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees . . . and other terms, conditions, and
privileges of employment.
42 U.S.C. § 12112. As an initial matter, this claim may only be brought against the
individual State Defendants. Suits brought by state employees seeking money damages
against the state for violations of Title I of the ADA are barred by the Eleventh
Amendment. Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001).
Accordingly, Plaintiff’s Title I claim against the Indiana Supreme Court is barred to the
extent Plaintiff seeks monetary damages.
In addition, an EEOC charge must be filed within 300 days of the allegedly
unlawful employment practice, or the plaintiff’s claim is barred. Flannery v. Recording
Indus. Ass’n. of Am., 354 F.3d 632, 637 (7th Cir. 2004). “[W]hile not a jurisdictional
element, it is a prerequisite with which a plaintiff must comply before filing suit.”
Graham v. AT&T Mobility, LLC, 247 Fed. Appx. 26, 29 (7th Cir. 2007). Here, Plaintiff
filed his charge of discrimination on December 4, 2014, and his Complaint on June 28,
2015. Therefore, his claims arising from incidents alleged before February 7, 2014, are
time-barred, leaving only his Title I failure-to-hire claim, which accrued in March 2014,
for the court’s consideration. (See SAC, Ex. V).
To state a claim for failure-to-hire, a plaintiff need only allege that “he was turned
down for a job because of his disability.” Dixon v. The CMS, No. 14 C 4986, 2015 WL
6701771, at *2 (N.D. Ill. Nov. 3, 2015) (citing Carlson v. CSX Transp., Inc., 758 F.3d
819, 827 (7th Cir. 2014)). Job, in this context, means an open position. See Grigsby v.
LaHood, 628 F.3d 354, 358 (7th Cir. 2010) (listing the prima facie elements of a failureto-hire case).
Ms. Rodeheffer’s letter to Plaintiff, which is attached to the SAC as Exhibit V,
states, in relevant part:
We understand that you are seeking a position or contract to establish a
disability rights office for the Indiana Supreme Court. Thank you for your
interest but we are not seeking such a position at this time.
(SAC, Ex. V). Ms. Rodeheffer responded further by email that she was the person
holding a position similar to the position sought by Plaintiff and that the Court already
had an ADA coordinator. (Id., Ex. CC). Because Plaintiff did not apply for an open
position, his failure-to-hire claim fails to state a claim for which relief can be granted.
Title V of the ADA
Title V of the ADA provides: “[N]o person shall discriminate against any
individual because such individual has opposed any act or practice made unlawful by this
chapter or because such individual made a charge . . . under this chapter.” 42 U.S.C. §
12203. Plaintiff bases this retaliation claim on two discrete acts: (1) the disciplinary
complaint filed by Ms. Rodeheffer in September 2014 and (2) the Indiana Supreme
Court’s denial of transfer in his disability rights case against the Indiana Democratic
Party in February 2015. (SAC ¶ 139). The retaliation provision of the ADA does not
provide for individual liability. Spiegel v. Schulmann, 604 F.3d 72, 79 (7th Cir. 2010).
Therefore, this claim is analyzed solely against the Indiana Supreme Court.
“The ADA prohibits employers from retaliating against employees who assert
their right under the Act to be free from discrimination.” Dickerson v. Bd. of Trs. of
Cmty. College Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011) (citing 42 U.S.C. §
12203(a)). To state a claim for retaliation under the ADA, a plaintiff must allege that he
engaged in protected expression and was subjected to an adverse action as a result of that
activity. Carlson, 758 F.3d at 828 (quoting Luevano v. Wal-Mart Stores, Inc., 722 F.3d
1014, 1029 (7th Cir. 2013)). Conduct is “materially adverse” if it would have “dissuaded
a reasonable worker from making or supporting a charge of discrimination.” 2 Burlington
Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (internal quotation marks
and citations omitted).
Here, Plaintiff alleges Ms. Rodeheffer filed the disciplinary complaint against him
in retaliation for his “disability rights work and his demands for justice.” (SAC ¶ 139).
This claim appears to be based on Plaintiff’s Petition for Redress of Grievances, which he
alleges he “filed” five days before Ms. Rodeheffer filed the disciplinary complaint
against him. (Id. ¶ 80). Plaintiff’s allegations reflect, however, that Mr. Smith “refused”
to accept the Petition for filing. (Id. ¶ 75). In fact, Mr. Smith returned the Petition to
Plaintiff. (Id., Ex. AA). When he attempted to file the Petition for Redress again, Mr.
Smith forwarded the Petition to Ms. Rodeheffer because Plaintiff made allegations of
discrimination against the Court. (Id., Ex. BB). Still, Ms. Rodeheffer was aware of the
Petition, as it is listed as one of the documents in support of her disciplinary complaint.
(See id., Ex. EE).
The overarching problem with Plaintiff’s ADA retaliation claim is this: the events
giving rise to this claim – the Petition for Redress of Grievances and the disciplinary
complaint – occurred in September 2014. Plaintiff was last employed with the STAD in
2002. There is no employer-employee relationship at issue here. And while post-
Burlington Northern is a Title VII retaliation case. The anti-retaliation provision of the ADA,
42 U.S.C. § 12203(a), uses similar language to that in Title VII, 42 U.S.C. § 2000e-3(a). Title
VII retaliation cases therefore provide guidance for the assessment of ADA retaliation claims.
See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009).
termination acts of retaliation that have a nexus to employment are actionable, Veprinsky
v. Fluor Daniel, Inc., 87 F.3d 881, 888-91 (7th Cir. 1996), this is not that case. It is
simply not plausible that Ms. Rodeheffer would retaliate against Plaintiff for attempting
to file the Petition which covers incidents that occurred in 2002.
Plaintiff also appears to claim that Ms. Rodeheffer’s disciplinary complaint was
filed in retaliation for Plaintiff’s ICRC complaint alleging that the Indiana Democratic
Party Headquarters in South Bend did not provide handicap parking. (Id. ¶ 132). Again,
there is no employer-employee relationship here. Furthermore, Plaintiff fails to allege
that Ms. Rodeheffer was even aware of Plaintiff’s ICRC complaint. Luckie v. Ameritech
Corp., 389 F.3d 708, 715 (7th Cir. 2004) (stating supervisors must know of employee’s
complaints for their decisions to be retaliatory). Therefore, Plaintiff fails to establish a
claim for relief under the anti-retaliation provision of the ADA.
Title II of the ADA
Title II of the ADA provides that “no qualified individual with a disability shall,
by reason of such disability, be excluded from participation in or be denied the benefits of
the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity.” 42 U.S.C. § 12132. To establish a violation of Title II, a plaintiff
must show: “‘(1) that he is a ‘qualified individual with a disability,’ (2) that he was
denied ‘the benefits of the services, programs, or activities of a public entity’ or otherwise
subjected to discrimination by such an entity, and (3) that the denial or discrimination
was ‘by reason of’ his disability.’” Phipps v. Sheriff of Cook Cnty., 681 F. Supp. 2d 899,
913 (N.D. Ill. 2009) (quoting Love v. Westville Corr. Ctr., 103 F.3d 558, 560 (7th Cir.
1996)). Although the ADA does not define “services, programs, or activities,” courts
have adopted the definition of “programs or services” from the Rehabilitation Act to
include “all of the operations of . . . a local government.” Frame v. City of Arlington, 657
F.3d 215, 225 (5th Cir. 2011), cert. denied, 132 S.Ct. 1561 (2012); see also Brumfield v.
City of Chicago, 735 F.3d 619, 622 (7th Cir. 2013) (“Title II provides that state and local
governments may not exclude eligible disabled persons from ‘participation in’ or ‘the
benefits of’ governmental ‘services, programs, or activities’ or otherwise ‘subject’ an
eligible disabled person ‘to discrimination.’”) (quoting 42 U.S.C. § 12132)).
Neither Plaintiff’s SAC nor his Response explicitly discusses a Title II violation.
The court presumes his claim is based upon either his lawsuit against the Indiana
Democratic Party and/or his Petition for Redress of Grievances. With respect to his
lawsuit against the Democratic Party, the allegations of Plaintiff’s SAC reflect that
Plaintiff was not denied access to the courts. He filed his lawsuit and even sought
transfer to the Indiana Supreme Court. Therefore, Plaintiff’s claim based on his lawsuit
with the Democratic Party fails to state a claim upon which relief may be granted.
With respect to his Petition for Redress of Grievances, Plaintiff’s allegations
reflect Mr. Smith “refused” to file the Petition with the Indiana Supreme Court because
Plaintiff’s Petition did not fall within the jurisdiction of the Court. (SAC, Exs. AA &
BB). Mr. Smith did forward the Petition to Ms. Rodeheffer for her review since he
alleged discrimination against the Indiana Supreme Court. (Id., Ex. CC). Ms.
Rodeheffer responded by explaining why his claims were untimely and lacked merit.
Plaintiff fails to state a claim that his Petition for Redress was denied because of his
Count II Against the State Defendants
In Count II, Plaintiff brings Section 1983 claims under the First Amendment, and
the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
Plaintiff’s claims against the Indiana Supreme Court and the individual State Defendants
sued in their official capacities must be dismissed, as they are not “persons” within the
meaning of Section 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989).
Furthermore, the Eleventh Amendment bars suits for damages against state officials in
their official capacities. Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). The court
therefore treats this claim as against Mr. Smith and Ms. Rodeheffer in their individual
Plaintiff alleges that Mr. Smith and Ms. Rodeheffer violated his First Amendment
right to petition the government for redress of grievances. This right includes the right of
access to the courts. Bridges v. Gilbert, 557 F.3d 541, 553 (7th Cir. 2009) (citing Cal.
Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972)). For the reasons
just explained, Plaintiff was not denied access to the court when Mr. Smith “refused” to
file his Petition for Redress of Grievances. In addition, neither Mr. Smith nor Ms.
Rodeheffer prevented Plaintiff from pursuing his claims in another forum as evidenced
by the filing of his lawsuit.
Plaintiff also alleges Mr. Smith and Ms. Rodeheffer violated his right to due
process due to the Indiana Supreme Court’s “repeated refusal to accept [his] demands for
justice.” (SAC ¶ 149). Plaintiff further alleges that he was discriminated against in
violation of the Equal Protection Clause because “what the Indiana Supreme Court and
its employees did is the epitome of discrimination and intentional harm.” (Id. ¶ 150). To
the extent these claims are based on his Petition for Redress of Grievances, Plaintiff was
not denied due process nor equal protection. Plaintiff simply attempted to file the
Petition in the wrong forum. To the extent Plaintiff’s claims are based on his
employment with the STAD and his bar applications, his claims are barred by the twoyear statute of limitations applicable to Section 1983 actions in this state. Behavioral
Inst. of Ind., LLC v. Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir. 2005)
(noting the statute of limitations for Section 1983 actions in Indiana is Indiana’s two-year
statute of limitations applicable to personal injury actions).
Count III Against the EEOC
Plaintiff alleges the EEOC violated his Fifth Amendment right to due process by
failing to perform an investigation of his charges of discrimination against the State
Defendants. According to Plaintiff, the EEOC provided him a copy of his charge file, but
his charge file contained only the documents that he submitted; there were no documents
from the State Defendants. (SAC ¶ 158). Citing the Code of Federal Regulations,
Plaintiff argues the EEOC is required to conduct an investigation and he had a right to an
investigation, “not just a letter of right to sue.” (Id. ¶ 162).
To begin, the court lacks subject matter jurisdiction over Plaintiff’s Fifth
Amendment claim for money damages against the EEOC. See FDIC v. Meyer, 510 U.S.
471, 485-86 (1994). In addition, as found by the Magistrate Judge, the regulation
Plaintiff alleges the EEOC violated, 29 C.F.R. § 1601.15(a), does not confer jurisdiction
on the court. (Filing No. 51 at 9).
Turning to the merits, Plaintiff’s claim fails to state a claim of a deprivation of due
process in violation of the Fifth Amendment.
It is well established that a private-sector employee has no cause of action
against the EEOC for its failure to process a charge of discrimination. The
proper course for a private plaintiff whose claim the EEOC [allegedly]
mishandled is to bring a lawsuit against the plaintiff’s employer on the
merits, not one against the EEOC.
Jordan v. Summers, 205 F.3d 337, 342 (7th Cir. 2000) (internal citations omitted). And,
as argued by the EEOC, it was not properly served pursuant to Federal Rule of Civil
Procedure 4(i). 3
For the reasons set forth above, the court GRANTS the State Defendants’ Motion
to Dismiss (Filing No. 23) and GRANTS the EEOC’s Motion to Dismiss (Filing No. 29).
SO ORDERED this 28th day of January 2016.
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana
In the court’s Entry on Plaintiff’s Request for Clerk to Enter Default Against the EEOC, the
court found the EEOC was not properly served. (See Filing No. 49).
Distributed Electronically to Registered Counsel of Record.
Distribution via U.S. Mail to:
Andrew U.D. Straw
1900 E. Golf Rd., Suite 950A
Schaumburgh, IL 60173
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