Perez et al v. The State of North Carolina et al

Filing 22

ORDER granting Defendant's 15 Motion to Dismiss for Lack of Jurisdiction and Failure to State a Claim. For the foregoing reasons, the defendant's Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12 (b)(6) is GRANTED, and the plaintiff's complaint is DISMISSED. Signed by US District Judge Terrence W. Boyle on 6/18/2013. Copy of Order mailed to plaintiffs via US Mail. (Fisher, M.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
No. 7:12-CV-322-BO
HA YLEIGH LYNN PEREZ and
JASON RAY THIGPEN,
Plaintiffs,
v.

THE UNIVERSITY OF NOTH CAROLINA
BOARD OF GOVERNORS, and PETER D.
HANS, Chairman, H. FRANK GRAINGER,
Vice Chairman, and ANN B. GOODNIGHT,
Secretary, each in his or her official capacity

)
)
)
)
)
)
)
)
)
)
)
)
)
)

ORDER

Defendants.
________________________________ )
This matter is before the Court on the defendants' motion for dismissal of this
action pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(l). The
defendants' motion is GRANTED and the plaintiffs' complaint is DISMISSED for lack
of subject matter jurisdiction and failure to state a claim upon which relief might be
granted.

BACKGROUND
The plaintiffs filed this complaint seeking monetary, injunctive, and declaratory
relief. The plaintiffs alleged that their action was brought pursuant to the Fifth and
Fourteenth Amendments to the U. S. Constitution; 42 U.S.C. § 1983; and the Federal
Tort Claims Act ("FTCA"). The plaintiffs also use the catch-all phrase: "and other state
and federal laws for relief from commission of tortious acts, Only those claims expressly
identified in the plaintiffs' complaint will be acknowledged by this Court. The Court
considers those claims in turn.
1

DISCUSSION

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. Papasan v.
Allain, 478 U.S. 265, 283 (1986). When acting on a motion to dismiss under Rule
12(b)(6), "the court should accept as true all well-pleaded allegations and should view the
complaint in a light most favorable to the plaintiff." Mylan Labs, Inc. v. Matkari, 7 F.3d
1130, 1134 (4th Cir. 1993 ). A complaint must allege enough facts to state a claim to
relief that is facially plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Mere recitals of a cause of action supported by conclusory statements do not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On the other hand, Rule 12(b)(1) authorizes the dismissal of a claim for lack of
subject matter jurisdiction. When subject matter jurisdiction is challenged, the plaintiff
has the burden of proving jurisdiction to survive the motion. Evans v. B.F. Perkins Co.,
166 F.3d 642, 647-50 (4th Cir. 1999). "In determining whether jurisdiction exists, the
district court is to regard the pleadings' allegations as mere evidence on the issue, and
may consider evidence outside the pleadings without converting the proceeding to one for
summary judgment." Richmond, Fredericksburg & Potomac R.R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991). To this end, "the nonmoving party must set forth
specific facts beyond the pleadings to show that a genuine issue of material fact exists."
/d.(citing Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558-59 (9th
Cir. 1987). The movant's motion to dismiss should be granted if the material
jurisdictional facts are not in dispute and the movant is entitled to prevail as a matter of
law. !d.

2

These plaintiffs are proceeding pro se and, as such, the Court must consider the
claims presented to it in a different light than it might consider the filings of professional
attorneys. Although the Court must liberally construe pleadings submitted by pro se
claimants, Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam), "a district court is not
required to recognize obscure or extravagant claims defying the most concerted efforts to
unravel them." Weller v. Dep 't ofSoc. Servs., 901 F.2d 387, 391 (4th Cir. 1990).
I.

PLAINTIFFS LACK STANDING TO BRING CLAIMS AGAINST THE
INDIVIDUALLY NAMED DEFENDANTS.

The plaintiffs' claims against the individually named defendants must be dismissed
because the plaintiffs lack standing to proceed against them. Standing doctrine requires
the plaintiffs to demonstrate three "irreducible constitutional minimum" requirements:
First, the plaintiff must have suffered an 'injury in fact' -an invasion of a
legally protected interest which is (a) concrete and particularized and (b)
"actual or imminent, not 'conjectural' or 'hypothetical.' Second, there
must be causal connection between the injury and the conduct complained
of-the injury has to be 'fairly ... trace[ able] to the challenged action of the
defendant, and not . . . th[e] result [of] the independent action of some
third party not before the court.' Third, it must be 'likely,' as opposed to
merely 'speculative,' that the injury will be 'redressed by a favorable
decision.'
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)(internal citations omitted).
The plaintiffs have failed to establish at least one element required for Article Ill
standing: an injury that is fairly traceable to the challenged action of the defendant.
The plaintiffs have named just three members of the Board of Governors, a thirtytwo member body. The defendants, representing just 10% of the Board's voting
members, could not have caused the harm alleged by defendants without the actions of
many other board members. Further, no action by the three named board members would

3

redress the harm alleged by the plaintiffs. As such, the plaintiffs lack standing against
these defendants and their claims are properly dismissed.
II.

WHERE NONE OF THE DEFENDANTS ARE FEDERAL ENTITIES THE
FEDERAL TORT CLAIMS ACT DOES NOT APPLY.
The FTCA, 28 U.S.§ 2671 et seq. allows a court, in limited circumstances to

award damages to a plaintiff based on torts committed by the federal government. None
of the defendants named by the plaintiff are federal entities and, as such, plaintiff has
failed to state a claim under the FTCA and this claim must be dismissed pursuant to Rule
12(b)(6).
III.

THE FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT DOES
NOT CREATE A PRIVATE RIGHT OF ACTION.
The FERPA, 20 U.S.C. § 1232(g) is enforceable by the federal government only

and does not create a private right of action. See Gonzaga Univ. v. Doe, 536 U.S. 273
(2002). As such, to the extent the plaintiffs have attempted to state a claim under the
FERPA that claim must be dismissed pursuant to Rule 12 (b)(6).
IV.

THE DECLARATORY JUDGMENT ACT IS REMEDIAL AND DOES
NOT CREATE AND SUBSTANTIVE RIGHTS.
The DJA is a remedial act and did not create any new substantive rights CGN,

LLC v. BellSouth Telecommunications, Inc., 664 F.3d 46, 55 (4th Cir. 2011). Because the

plaintiffs have stated no underlying substantive right that would entitle them to the
remedial relief offered by the DJA, they have failed to state claim upon which relief
might be granted. To the extent the plaintiffs have attempted to allege a separate claim for
relief under the DJA, plaintiffs' claim must be dismissed pursuant to Rule 12(b)(6).

4

V.

THE ELEVENTH AMENDMENT BARS THE PLAINTIFFS FROM
RECEIVING DAMAGES AND INJUNCTIVE RELIEF.

The Eleventh Amendment provides that "[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State." U.S. Const. Amend. XI. The amendment was extended to citizens of
the same state by the Supreme Court in Edelman v. Jordan, 415 U.S. 651 (1974).
Additionally, the board members enjoy Eleventh Amendment immunity in their official
capacities. Huang v. Bd. Of Governors ofUniv. ofNC., 902 F.2d 1134, 1138-39 (4th Cir.
1990). This immunity may be waived in a limited number of cases. Immunity may be
waived (1) expressly, Huang, 902 F.2d at 1138; (2) ifthe defendants removed this action
from a state court with jurisdiction, Lapides v. Bd. Of Regents of Univ. Sys. Of Ga., 535
U.S. 613 (2002); or (3) if Congress has exercised its authority under the Fourteenth
Amendment to abrogate a states' eleventh amendment immunity, Seminole Tribe v.

Florida, 517 U.S. 44 (1996). There is no suggestion that any of these three types of
waiver apply to the instant case. As such, the Eleventh Amendment renders the
defendants immune from the plaintiffs' claims for damages. Therefore, those claims are
properly dismissed pursuant to Rule 12(b)(6) for failure to state a claim upon which relief
might be granted.
The Ex Parte Young doctrine applies to a limited subset of cases and provides that
Eleventh Amendment immunity does not bar a suit against a state official for prospective
injunctive relief. 209 U.S. 123 (1908). However, judgments that apply to past conduct are
forbidden by the Eleventh Amendment. See Green v. Mansour, 474 U.S. 64, 71
(1985)(finding that where there is no continuing violation of federal law an injunction is
5

not available to the plaintiffs). Here, the plaintiffs only allege discrete, past harms.
Because the plaintiffs fail to allege any ongoing violation, injunctive relief is barred by
the Eleventh Amendment and claims for such relief must be dismissed pursuant to Rule
12(b)(6).
Finally, the North Carolina State Tort Claims Act, N.C. Gen. Stat.§ 143-291
provides a "limited waiver of state sovereign immunity for negligent acts committed by
state employees in their official capacities." However, the Act mandates that plaintiffs
who wish to sue the state for tortious acts must bring their claims before the North
Carolina Industrial Commission, not the district court." Alston v. N C. A & T State Univ.,
304 F. Supp. 2d 774, 783 (M.D.N.C. 2004). As such, the plaintiffs' state law claims are
not properly before this court and must be dismissed.
CONCLUSION

For the foregoing reasons, the defendants' motion to dismiss pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6) is GRANTED and the plaintiffs'
complaint is DISMISSED. The clerk is directed to CLOSE the file.

SO ORDERED.
This the dctay of June, 2013.

~~~
ii~LE

UNITED STATES DISTRIC JUDGE

6