LAWRENCE v. U.S. DEPARTMENT OF EDUCATION
Filing
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Order on Motion to Dismiss ECF No. 16 - Defendant U.S. Department of Education (the "DOE") moves to dismiss pro se Plaintiff Franklin H. Lawrence Jr.'s complaint for failure to state a claim upon which relief can be granted and fo r lack of subject-matter jurisdiction. ECF No. 16 . The motion, now fully briefed and ripe for decision, is granted for the following reasons. Because this Court does not have jurisdiction over this matter, and because Plaintiff failed to state a c laim upon which relief can be granted, Defendant's Motion to Dismiss ECF No. 16 is granted. Plaintiff shall have until November 12, 2019 to file an amended complaint or otherwise show cause why this case should not be dismissed with prejudice for lack of subject-matter jurisdiction and for failure to state a claim. In doing so, Plaintiff must clearly identify the federal constitutional or statutory provision(s) giving rise to his claims. Failure to do so will result in a dismissal with prejudice without further notice. ***SEE ORDER FOR ADDITIONAL DETAILS*** (Copy to Plaintiff via U.S. Mail). Signed by Judge James R. Sweeney II on 9/30/2019. (JDC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
FRANKLIN H. LAWRENCE, JR.,
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Plaintiff,
v.
U.S. DEPARTMENT OF EDUCATION,
Defendant.
No. 1:18-cv-01756-JRS-DLP
Order on Motion to Dismiss (ECF No. 16)
Defendant U.S. Department of Education (the “DOE”) moves to dismiss pro se
Plaintiff Franklin H. Lawrence Jr.’s complaint for failure to state a claim upon which
relief can be granted and for lack of subject-matter jurisdiction. (ECF No. 16.) The
motion, now fully briefed and ripe for decision, is granted for the following reasons.
I.
Background 1
As best as can be discerned from the nearly incomprehensible and frivolous Complaint and associated pleadings, which are peppered with a cacophony of free citizen
mantras and claims, Plaintiff incurred a valid debt, attempted to satisfy that debt
with non-legal tender, and now complains that his purported payment was not accepted in satisfaction of his debt resulting in the allegedly “fraudulent” garnishment
of his wages, all amounting to a deprivation of his constitutional rights under 42
U.S.C. § 1983. More specifically, Plaintiff Franklin H. Lawrence Jr. has student loan
Consistent with the Rule 12(b)(6) standard, Plaintiff’s non-conclusory allegations are
taken as true for purposes of the DOE’s motion to dismiss.
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debt with Defendant DOE, which debt the DOE is collecting via wage garnishment.
(Compl. ¶ B, ECF No. 1 at 2.) On March 3, 2018, Plaintiff unsuccessfully attempted
to satisfy this debt by issuing to the DOE a $15,000 “security bond promissory note.”
(Pl.’s Br. 1, ECF No. 28.) Plaintiff alleges the note is valid tender pursuant to House
Joint Resolution 192. (Id.)
The DOE notified Plaintiff on April 3, 2018 that the “[b]ond for discharge [was]
not accepted.” (Id. at 2.) Plaintiff then demanded that the DOE “receive the benefits”
and that “if any attempt to collect after account 1002064340 is already agreed to be
closed, is fraud and shall incur a penalty of $100,000 United States Dollars or 52 Troy
Ounces of Gold equivalent.” (Id.) (Id. at 2-3.) Plaintiff’s wages continue to be garnished to satisfy his debt. (Id. at 3.)
II.
Subject-Matter Jurisdiction
Rule 12(b)(1)
Plaintiff attempts to invoke this Court’s federal question jurisdiction under 28
U.S.C. § 1331. (Compl. ¶ C, ECF No. 1 at 3.) He cites 42 U.S.C. § 1983 as the basis
for his claim that the DOE deprived him of his rights. (Id. at 1; Pl.’s Br. 5, ECF No.
28.) However, § 1983 actions can only be brought against those acting under the color
of state law. 42 U.S.C. § 1983; see London v. RBS Citizens, N.A., 600 F.3d 742, 745–
46 (7th Cir. 2010) (citing Buchanan–Moore v. Cty of Milwaukee, 570 F.3d 824, 827
(7th Cir. 2009)) (“In order to state a claim under § 1983, a plaintiff must sufficiently
allege that (1) a person acting under color of state law (2) deprived him of a right,
privilege, or immunity secured by the Constitution or laws of the United States.”)
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As Defendant points out, Plaintiff alleges his § 1983 claim against the DOE, a
federal agency that operates solely under the authority of federal law. (Def.’s Br. 6,
ECF No. 17.) Even Plaintiff, undermining his own claim, cites to H.R.J. Res. 192
(1933), a federal resolution, which he claims authorizes the DOE to accept his security
bond as payment for his debt. (Compl. ¶ B, ECF No. 1.) Because Plaintiff has not
named a person acting under the color of state law in his Complaint, he cannot maintain a § 1983 claim and this Court cannot exercise jurisdiction over the matter.
Further, there is no basis for the Court to exercise diversity jurisdiction under 28
U.S.C. § 1332, nor any readily apparent basis for federal-question jurisdiction under
28 U.S.C § 1331. Arbaugh v. Y&H Corp., 546 U.S. 500, 513 (2006). While federalquestion jurisdiction may be found under such provisions as the Higher Education
Act (“HEA”), the Administrative Procedures Act (“APA”), or even the Federal Tort
Claims Act (“FTCA”), the Complaint is infirm in invoking these provisions and the
Court has no duty to come up with an independent jurisdiction basis for even a pro
se Plaintiff. Accordingly, the Complaint should be dismissed. Id. at 514, see Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (wholly insubstantial complaints
do not invoke federal subject matter jurisdiction).
III.
Failure to State a Claim
Rule 12(b)(6)
Even if this Court had jurisdiction over Plaintiff’s action, Plaintiff’s Complaint
(ECF No. 1) still must be dismissed for failure to state a claim upon which relief can
be granted. While the Complaint (ECF No. 1) and Brief in Support of Complaint
(ECF No. 28) are nearly inscrutable, it appears that Plaintiff asserts claims of fraud
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and “deprivation of rights” under 42 U.S.C. § 1983. For the reasons stated above,
Plaintiff’s § 1983 claim is deficient for failure to identify a state actor. After carefully
reviewing Plaintiff’s fraud allegations, the Court determines that the pleadings, even
construed liberally. are inadequate to state a claim for fraud.
A. Legal Standard
To survive a motion to dismiss for failure to state a claim, a plaintiff must allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). In considering a Rule 12(b)(6) motion to dismiss,
the court takes the complaint’s factual allegations as true and draws all reasonable
inferences in the plaintiff’s favor. Orgone Capital III, LLC v. Daubenspeck, 912 F.3d
1039, 1044 (7th Cir. 2019). The court need not “accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “[I]f a
plaintiff pleads facts that show its suit [is] barred . . . , it may plead itself out of court
under a Rule 12(b)(6) analysis.” Orgone Capital, 912 F.3d at 1044 (quoting Whirlpool
Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995)); Bogie v. Rosenberg,
705 F.3d 603, 609 (7th Cir. 2013) (on a motion to dismiss “district courts are free to
consider ‘any facts set forth in the complaint that undermine the plaintiff’s claim’”)
(quoting Hamilton v. O’Leary, 976 F.2d 341, 343 (7th Cir. 1992)).
The defense of sovereign immunity is properly brought under a motion to dismiss
for failure to state a claim upon which relief can be granted under Federal Rule of
Civil Procedure 12(b)(6). Meyers v. Oneida Tribe of Indians of Wisconsin, 836 F.3d
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818, 822 (7th Cir. 2016) (noting that the question of sovereign immunity is not a jurisdictional one).
Although pro se complaints are construed liberally and held “to a less stringent
standard than formal pleadings drafted by lawyers,” Perez v. Fenoglio, 792 F.3d 768,
776 (7th Cir. 2015) (quoting Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)),
“perfunctory and undeveloped arguments, and arguments that are unsupported by
pertinent authority, are waived (even where those arguments raise constitutional issues).” United States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003) (quoting United States
v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir. 1991)).
B. Waiver of Sovereign Immunity
Even if Plaintiff’s pleadings could be discerned to contain any plausible federal
claim under a relevant federal provision, see United States ex rel. Garst v. LockheedMartin Corp., 328 3d 374, 378 (“Rule 8(a) requires parties to make their pleadings
straightforward, so that judges and adverse parties need not try to fish a gold coin
from a bucket of mud.”), Plaintiff has failed to identify a waiver of sovereign immunity
for either of his claims. See United States v. Mitchell, 445 U.S. 535, 538 (1980) (quoting United States v. Sherwood, 312 U.S. 584, 586 (1941)) (“[T]he United States, as
sovereign, is immune from suit save as it consents to be sued.”). The Federal Tort
Claims Act (“FTCA”) waives the sovereign immunity of the United States for tort
claims against its employees. 28 U.S.C. § 2674 (“The United States shall be liable …
to tort claims in the same manner and to the same extent as a private individual
under like circumstances.”). But Plaintiff has not followed the FTCA’s procedural
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requirements here. The FTCA does not allow claims against the United States “unless the claimant shall have first presented the claim to the appropriate Federal
Agency and his claim shall have been finally denied.” 28 U.S.C. § 2765; McNeil v.
United States, 508 U.S. 106, 113 (1993) (holding that the FTCA bars claimants from
bringing suit until they have exhausted their administrative remedies).
Plaintiff does not indicate whether he has instituted an administrative action
against the DOE. However, Defendant notes that Plaintiff requested a hearing on
his wage garnishment on June 8, 2018, the same day he filed his complaint. (Brief in
Support of Defendant’s Motion to Dismiss, ECF No. 17, at 7 n.1.) The Court has not
been presented with any information suggesting that this agency action has been
“finally decided.” Thus, Plaintiff’s case must be dismissed as he has not shown he
has exhausted his administrative remedies.
Even if the Plaintiff had followed the FTCA’s procedural requirements, his claims
would be barred by the Higher Education Act (the “HEA”). The HEA authorizes suits
against the Secretary of the DOE “in any district court of the United States . . . but
no attachment, injunction, garnishment, or other similar process . . . shall be issued
against the Secretary.” 20 U.S.C. § 1082(a)(2). Plaintiff has not filed a claim against
the Secretary, which is enough to defeat any claim under the HEA. But there is more.
Although the Administrative Procedure Act (“APA”) waives sovereign immunity in
claims for injunctive relief against the United States, claims cannot be brought if “any
other statute that grants consent to suit expressly or impliedly forbids the relief
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which is sought.” 5 U.S.C. § 702. Here, the HEA expressly forbids the injunctive relief
Plaintiff seeks.
In his Complaint, Plaintiff asks for injunctive relief in the form of: ordering the
DOE to (1) produce documents proving money was loaned to him, (2) produce documents proving Plaintiff has satisfied his debt, (3) cease garnishing Plaintiff’s wages,
(4) honor Plaintiff’s security bond, (5) and stop trespassing. (Compl. ¶ D, ECF No.1.)
Plaintiff’s claim, in essence, asks that DOE be ordered to stop garnishing his wages
to satisfy his student loan debt. Such relief would come in the form of an injunction
by the Court. Because the HEA does not waive the Secretary of Education’s sovereign
immunity in regards to injunctive relief, Plaintiff’s claims must be dismissed.
C. Fraud
Even if Plaintiff’s fraud claim was not barred under the HEA, it would still fail for
failing to state a claim upon which relief can be granted. Plaintiff alleges a claim of
“fraud and deceit of material facts which arose from silence where there was a duty
to speak the truth.” (Compl. ¶ B, ECF No. 1 at 3.) Read charitably, Plaintiff appears
to allege a claim for constructive fraud. Under Indiana law, the elements of an action
for constructive fraud are:
1) a duty owing by the party to be charged to the complaining party due
to their relationship; 2) violation of that duty by the making of deceptive
material misrepresentations of past or existing facts or remaining silent
when a duty to speak exists; 3) reliance thereon by the complaining
party; 4) injury to the complaining party as a proximate result thereof;
and 5) the gaining of an advantage by the party to be charged at the
expense of the complaining party.
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Heyser v. Noble Roman's Inc., 933 N.E.2d 16, 19–20 (Ind. Ct. App. 2010). In addition
to pleading the elements of constructive fraud under Indiana law, Plaintiff must also
state with “particularity the circumstances constituting fraud or mistake.” Fed. R.
Civ. P. 9(b).
Although the factual bases of Plaintiff’s claims are not entirely clear from his Complaint, he appears to allege that the DOE committed fraud by not honoring his security bond as payment for his student loans and continuing to garnish his wages.
(Compl. ¶ B, ECF No. 1 at 2-3.) Assuming, arguendo, that the DOE owed a duty to
Plaintiff, it did not violate this duty by remaining silent, as Plaintiff alleges. In fact,
Plaintiff himself includes in his pleading that the DOE specifically stated that “the
bond for discharge is not accepted.” (Pl.’s Br 1., ECF No. 28.) If the DOE had a duty
to speak when Plaintiff tendered his security bond, it satisfied this duty by promptly
notifying Plaintiff that the bond was not accepted.
Plaintiff’s Complaint does not state a valid claim for constructive fraud, nor does
it state with “particularity” the circumstances that constitute fraud. See Fed. R. Civ.
P. 9(b). His complaint is rife with conclusory and meaningless allegations such as,
“the Plaintiff is held involuntarily … to a condition of involuntary servitude satisfying
illicit obligations,” and that the DOE is “forcing one by legal coercion to satisfy such
an obligation, or holding him otherwise under a system of peonage” (emphasis in
original). (Compl. ¶ B, ECF No. 1 at 2.) The Court is left to guess at what the Plaintiff
means by these statements, as they contain no substantive factual allegations.
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Plaintiff has not pleaded enough facts at this stage to bring an action of fraud against
the DOE.
IV.
Conclusion
Because this Court does not have jurisdiction over this matter, and because Plaintiff failed to state a claim upon which relief can be granted, Defendant’s Motion to
Dismiss (ECF No. 16) is granted. Plaintiff shall have until November 12, 2019 to
file an amended complaint or otherwise show cause why this case should not be dismissed with prejudice for lack of subject-matter jurisdiction and for failure to state a
claim. In doing so, Plaintiff must clearly identify the federal constitutional or statutory provision(s) giving rise to his claims. Failure to do so will result in a dismissal
with prejudice without further notice.
SO ORDERED.
Date: 9/30/2019
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Distribution:
FRANKLIN H. LAWRENCE, JR.
4221 Ansar Lane
Indianapolis, IN 46254
Gina M. Shields
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
Gina.Shields@usdoj.gov
Shelese M. Woods
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
shelese.woods@usdoj.gov
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