Harris v. Univ. of Missouri (UM)

Filing 23

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Defendant University of Missouri's motion to dismiss is GRANTED. Doc. No. 15 . Plaintiff's claims against the University of Missouri are DISMISSED without prejudice. Signed by Sr. District Judge Audrey G. Fleissig on 4/16/2024. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ROSALIND DENISE HARRIS,
Plaintiff,
v.
UNIVERSITY OF MISSOURI (UM),

Defendant.

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No. 4:22-CV-01194-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Defendant University of Missouri’s motion to
dismiss. Doc. No. 15. Pro Se Plaintiff Denise Harris alleges numerous claims related to
the Defendant’s categorization and treatment of her thesis, including malicious trespass
under Mo. Rev. Stat. § 537.330; violations of Art. I, § 8 of the Missouri and U.S.
Constitutions; copyright infringement under 17 U.S.C. § 106(4)-(5); and unspecified civil
rights violations. Defendant University of Missouri (the “University”) seeks dismissal of
Plaintiff’s complaint due to lack of subject matter jurisdiction pursuant to Fed. R. Civ. P.
12(b)(1); failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6); and insufficient
process pursuant to Fed. R. Civ. P. 12(b)(4). For the reasons set forth below, Defendant’s
motion will be granted.

BACKGROUND
Initial Complaint
Pro Se Plaintiff Rosalind Harris initially filed this case as a Qui Tam action. Doc.
No. 1. In her initial complaint, Plaintiff asserted that the Court had subject matter
jurisdiction under 42 U.S.C. § 1983 for “deprivation of civil rights” and 31 U.S.C. §
3729(a), which is a provision of the False Claims Act (FCA) that “imposes civil liability
on any person who presents false or fraudulent claims for payment to the Federal
Government.” United States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419,
423 (2023). Plaintiff claimed that the University of Missouri improperly categorized her
thesis, which Plaintiff claimed caused “intellectual segregation,” emotional distress, and
other injuries. Plaintiff’s form complaint stated the following facts in support of her
claim:
I am a program beneficiary of UM because I wrote a thesis in 2004. It is held
in the library archives at UM St. Louis (UMSL). Exhibits will show my
efforts in graduate school were a source of mockery. I wrote UM a letter in
2020 because I wanted to levy a complaint based on intellectual segregation
over how my thesis is catalogued. I was told to contact UMSL. UMSL told
me what I was complaining about was my problem. I also complained to the
Missouri Attorney General’s (MO AG) Consumer Protection Division, US
Dept. of Ed’s. Office of Civil Rights (OCR) and Family Policy Compliance
Office.
Mediation in 2021 via MO AG got me a letter from UM Counsel Katharine
S. Bunn where she wrote on March 26, “Prior to going electronic in 2005,
the University did not allow color pictures or graphs in a thesis or any
supplemental materials.” This letter was the first time I was told this. My
thesis contains 3 graphs. Correction of a description about a graph was a
point of contention with my thesis advisor Dr. Richard Pacelle in the final
stages of writing the paper.

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I contend that Attorney Bunn’s statement of this failure by UM to alert me
to this information relegated me to suffer the treachery of poverty, the
isolation of intellectual obscurity, and the emotional duress and distress of
having gone through the process of graduate school to no professional avail.
My thesis is a success, but because of how I was treated in school, I’m not.
UM negated the school’s founding purpose.
Doc. No. 1 at 5. With respect to relief, Plaintiff requests $20 million and “the details
from my August 2020 letter to Chancellor Sobolik fulfilled.” Plaintiff also states,
I want to add that I want a copy for each library in the UM system with color
pictures and an epilogue. I want a copy on Conneiseur paper bound and
presented to the Library of Congress.
I claim $10 million in nominal damages for career loss. And punitive
damages of $10 million, my paper was miscatalogued plaguing me with
suspicion, I had to reprove my work (and unstandard [sic] academic
practice), I have endured unnecessary duress both in school and since
because of my excellence.
Id. at 5-6.
As discussed in the Court’s December 29, 2023 Order, plaintiffs are not permitted
to proceed pro se in Qui Tam actions. Doc. No. 6. Accordingly, the Court ordered that
Plaintiff must obtain counsel in order to proceed in a Qui Tam action, or shall otherwise
amend her complaint to assert individual claims against Defendant.
First Amended Complaint
On January 18, 2024, Plaintiff filed her First Amended Complaint. Doc. No. 7.
The First Amended Complaint alleged a violation under a Missouri state statute, Mo.
Rev. Stat. § 537.330, Malicious Trespass, but did not assert any federal claims. Plaintiff
vaguely referenced that her civil rights have been violated, but did not include any further
allegations to establish federal question jurisdiction. Plaintiff also did not allege any facts
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related to the parties’ citizenship to support diversity jurisdiction. Accordingly, on
January 22, 2024, the Court ordered Plaintiff to show cause as to why this case should not
be dismissed for lack of subject matter jurisdiction.1 Doc. No. 9.
Second Amended Complaint
On February 4, 2024, Plaintiff filed her Second Amended Complaint. Doc. No.
11. The Second Amended Complaint appeared to be Plaintiff’s response to the January
22nd Show Cause Order.2 The Second Amended Complaint alleges that (1) Plaintiff’s
“civil rights are being violated by the system;” (2) Defendant’s treatment and
categorization of her thesis was a malicious trespass of her chattels under Mo. Rev. Stat.
§ 527.330; and (3) Defendant’s treatment and categorization of her thesis was a violation
of federal copyright laws under 17 U.S.C. § 106(4)-(5) and Art. I, § 8 of the United States
and Missouri Constitutions. Id. Plaintiff seeks $20 million in compensatory and punitive
damages, as well as injunctive relief.
Construing Plaintiff’s Second Amended Complaint liberally, the Court found there
was plausible federal question jurisdiction because Plaintiff appeared to claim that
Defendant’s categorization and/or handling of Plaintiff’s thesis was a violation of federal
copyright laws under 17 U.S.C. § 106(4)-(5), and the United States Constitution Article I,

The case was also unsealed and recategorized as an individual lawsuit because
Plaintiff did not obtain the counsel necessary to proceed with a Qui Tam action and her
amended complaint removed all Qui Tam allegations. Doc. No. 9.
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Given that at the time of Plaintiff’s Second Amended Complaint, Defendant had
not yet been served with the First Amended Complaint, the Court permitted the filing of
Plaintiff’s Second Amended Complaint.
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§ 8. See Doc. No. 12. On February 13, 2024, Defendant filed the instant motion to
dismiss. Doc. No. 15.
ARGUMENT OF PARTIES
Defendant moves to dismiss Plaintiff’s Second Amended Complaint for lack of
subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1); failure to state a claim
pursuant to Fed. R. Civ. P. 12(b)(6); and insufficient process pursuant to Fed. R. Civ. P.
12(b)(4). More specifically, Defendant argues that there is no subject matter jurisdiction
and Plaintiff’s claims must be dismissed because the University, as an instrumentality of
the State of Missouri, is immune from federal suit under the Eleventh Amendment.
Defendant further argues that even if the Court did have jurisdiction, Plaintiff has
failed to allege sufficient facts that would give rise to any cognizable claim. Defendant
also notes that it was personally served with the Initial Complaint on January 23, 2024,
but has yet to be properly served with the First Amended Complaint or the Second
Amended Complaint. Nevertheless, on February 13, 2024, Defendant entered its
appearance and filed the instant motion to dismiss. Defendant notes that because an
amended complaint supersedes an original complaint and renders the original complaint
without legal effect, Defendant is responding to Plaintiff’s Second Amended Complaint
and treating her Initial Complaint and First Amended Complaint as nonoperative in order
to avoid a moot motion to dismiss.
Plaintiff did not file a timely opposition. On March 8, 2024, the Court ordered
Plaintiff to show cause as to why this case should not be dismissed. Doc. No. 18.
Plaintiff filed her response on March 21, 2024. Doc. No. 19. In response, Plaintiff
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argues that the Court does have jurisdiction pursuant to 18 U.S.C. § 3231, because she
has alleged that the offenses committed against her work are offenses against the laws of
the United States. She does not specifically address Defendant’s arguments with respect
to Eleventh Amendment immunity. Plaintiff also argues that the allegations in her
previous complaints properly stated a cause of action and should be considered under
Fed. R. Civ. P. 15(c)(1)(B). Lastly, Plaintiff argues that her time to serve the Second
Amended Complaint has not yet expired because she has 90 days from the date of the
most recent summons, which was issued on February 20, 2024. 3
DISCUSSION
The purpose of a motion to dismiss is to test the legal sufficiency of the complaint.
The Court must construe pro se complaints liberally, see Estelle v. Gamble, 429 U.S. 97,
106 (1976), but plaintiff “still must allege sufficient facts to support the claims
advanced.” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The Court “‘will not
supply additional facts, nor will [the Court] construct a legal theory for plaintiff that
assumes facts that have not been pleaded.’” Id. (quoting Dunn v. White, 880 F.2d 1188,
1197 (10th Cir. 1989)). Further, even though Plaintiff is representing herself without the
assistance of counsel, she is not excused from complying with the Federal Rules of Civil
Procedure, Local Rules, and the Court’s orders. See Ackra Direct Mktg. Corp. v.

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On April 10, 2024, Plaintiff filed a second untimely opposition without leave of
Court. Doc. No. 21. Even if the Court were to consider the arguments raised in
Plaintiff’s second opposition, including Plaintiff’s argument that Defendant waived its
immunity when “Missouri entered the union in 1875” and “consented to the plan for
America in writing” which included copyright protections, Plaintiff’s arguments are
without merit and do not change the Court’s analysis.
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Fingerhut Corp., 86 F.3d 852, 856 (8th Cir. 1996); Faretta v. California, 422 U.S. 806,
834-35 n.46 (1975) (pro se litigant must comply with relevant rules of procedure).
Operative Complaint
Plaintiff argues that the allegations in her amended complaints merely supplement
the allegations in her original complaint, and all three complaints should be considered
together. But, “[i]t is well-established that an amended complaint supersedes an original
complaint and renders the original complaint without legal effect.” In re Atlas Van Lines,
Inc., 209 F.3d 1064, 1067 (8th Cir. 2000). Thus, Plaintiff’s Second Amended Complaint
supersedes her prior complaints and is the operative complaint before the Court.
Plaintiff’s reliance on Fed. R. Civ. P. 15(c)(1)(B) is misplaced. Rule 15(c)(1)(B)
states that an amendment to a pleading relates back to the date of the original pleading
when “the amendment asserts a claim or defense that arose out of the conduct,
transaction, or occurrence set out—or attempted to be set out—in the original pleading.”
Fed. R. Civ. P. 15(c)(1)(B). This rule concerns the timing of complaint, often for statute
of limitation purposes, which is not an issue in this case.
Even if the Court were to consider all of Plaintiff’s complaints on this motion to
dismiss, they all fail, whether considered separately or in conjunction, because, as
discussed below, Defendant is entitled to Eleventh Amendment immunity.
Eleventh Amendment Immunity
The Eleventh Amendment limits the power of federal courts to hear lawsuits
brought “against a state or state agency, regardless of the nature of the relief sought,
unless Congress has abrogated the states’ immunity or a state has consented to suit or
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waived its immunity.” Rodgers v. Univ. of Missouri Bd. of Curators, 56 F. Supp. 3d
1037, 1049 (E.D. Mo. 2014) (internal quotations and citations omitted); see also Smith v.
Curators of Univ. of Missouri, No. 17-4016-CV-C-WJE, 2017 WL 11492763, at *3
(W.D. Mo. Dec. 20, 2017) (“Sovereign immunity is a jurisdictional, threshold matter that
is properly addressed under Rule 12(b)(1).”) (citing Lors v. Dean, 746 F.3d 857, 861 (8th
Cir. 2014)) (additional citation omitted).
“There are three exceptions to Eleventh Amendment immunity: (1) where the state
waives immunity by consenting to suit in federal court; (2) where Congress abrogates the
state’s immunity through valid exercise of its powers; and (3) under Ex parte Young, 209
U.S. 123 (1908), where the plaintiff files suit against state officials seeking prospective
equitable relief for ongoing violations of federal law.” Swatzell v. Bd. of Regents, No.
1:16-CV-00262, 2017 WL 3116150, at *2 (E.D. Mo. July 21, 2017) (citing Keselyak v.
Curators of the Univ. of Mo., 200 F. Supp. 3d 849, 854 (W.D. Mo. 2016)).
The Eleventh Amendment prohibits suits in federal court by citizens against his or
her own state. Hans v. Louisiana, 134 U.S. 1 (1890). Eleventh Amendment immunity
applies to all suits against a state or state instrumentalities, whether in law or in equity,
for damages or for any other relief. See Cory v. White, 457 U.S. 85 (1982); see also
Monroe v. Arkansas State Univ., 495 F.3d 591, 594 (8th Cir. 2007) (holding that the
Eleventh Amendment bars suits against a state university “for any kind of relief, not
merely money damages.”). State universities and colleges almost always enjoy Eleventh
Amendment immunity. See Hadley v. N. Arkansas Cmty Tech. Coll., 76 F.3d 1437, 1438
(8th Cir. 1996). In Sherman v. Curators of University of Missouri, the Eighth Circuit set
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out a framework for courts to determine whether a university actually enjoys Eleventh
Amendment protection. 16 F.3d 860, 863 (8th Cir. 1994). The Eighth Circuit explained
that a court must examine the amount of the university’s local autonomy and control, and
most importantly, whether any judgment rendered against the university would ultimately
be paid out of state funds. Id.
In applying this framework, Courts in this circuit have consistently held that the
University of Missouri is an arm of the state and afforded Eleventh Amendment
immunity. See Sherman v. Curators of the Univ. of Missouri, 871 F. Supp. 344 (W.D.
Mo. 1994) (holding that the University of Missouri is an instrumentality of the State and
entitled to Eleventh Amendment immunity), cited with approval in Scherer v. Curators of
the Univ. of Missouri, 49 F. App’x 658, 658-9 (8th Cir. 2002) (per curiam); Ormerod v.
Curators of Univ. of Missouri, 97 F. App’x 71, 72 (8th Cir. 2005) (per curiam) (affirming
Eleventh Amendment immunity for University of Missouri); Phillips v. Univ. of
Missouri, No. 2:23-CV-00365-MDH, 2023 WL 8037921, at *3 (W.D. Mo. Nov. 20,
2023) (holding that the University of Missouri is entitled to Eleventh Amendment
immunity because the Court “previously held that the University is an arm of the state
and afforded the protection of the Eleventh Amendment”); Bakhtiari v. Curators of Univ.
of Missouri, P.C., No. 4:06-CV-01489 CEJ, 2007 WL 2080425, at *2 (E.D. Mo. July 16,
2007) (holding that “the University of Missouri remains entitled to immunity under the
Eleventh Amendment”); Bakhtiari v. Lutz, No. 4:04-CV-01071 AGF, 2006 WL 2664383,
at *11 (E.D. Mo. Sept. 15, 2006); Swatzell, 2017 WL 3116150, at *2-3.
Here, Plaintiff has not shown any change in the University’s circumstances such
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that Eleventh Amendment immunity would now be improper. See Ormerod, 97 F. App’x
at 72 (affirming district court’s holding that because “previous decisions had established
that the University of Missouri-Columbia was entitled to Eleventh Amendment immunity
. . . it was unnecessary to evaluate whether the university was still entitled to immunity
because [the plaintiff] had not shown any change in the university’s circumstances.”).
Nor do any of the exceptions to Eleventh Amendment immunity apply. First, Defendant
has not waived its immunity by consenting to suit in federal court. Second, Congress has
not validly abrogated the University’s immunity for any of Plaintiff’s various claims. See
Allen v. Cooper, 589 U.S. 248 (2020) (holding that Congress is not authorized to abrogate
states’ Eleventh Amendment immunity from copyright infringement suits); see also
Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997) (explaining that Eleventh
Amendment immunity bars § 1983 claims brought against states). Third, the Ex parte
Young doctrine does not apply here because Plaintiff has not sued a state employee acting
in his or her official capacity for prospective relief. See Calzone v. Hawley, 866 F.3d
866, 869 (8th Cir. 2017); Keselyak, 200 F. Supp. 3d at 856.
Accordingly, the Court finds that Plaintiff’s claims against Defendant are barred
by Eleventh Amendment immunity and the Court lacks subject matter jurisdiction to hear
these claims.4 See Keselyak, 200 F. Supp. at 854-55 (“Plaintiff’s claims are barred by
Eleventh Amendment immunity such that the Court lacks subject matter jurisdiction.”);

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Because the Court does not have subject matter jurisdiction, it need not address
whether Plaintiff has properly stated a claim for relief under Fed. R. Civ. P. 12(b)(6) or
whether service was properly effectuated under Fed. R. Civ. P. 12(b)(4).
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see also Smith, 2017 WL 11492763, at *3.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant University of Missouri’s motion to
dismiss is GRANTED. Doc. No. 15. Plaintiff’s claims against the University of
Missouri are DISMISSED without prejudice.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 16th day of April, 2024.

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