KANLI V. DUKE UNIVERSITY
Filing
6
MEMORANDUM OPINION, ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 06/21/2012; that Plaintiff's Application to Proceed in District Court without Prepaying Fees or Costs (Docket Entry 1 ) is < b>GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. RECOMMENDING that this action be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(i) and (ii), as frivolous and for failure to state a claim. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT KANLI,
Plaintiff,
v.
DUKE UNIVERSITY,
Defendant.
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1:12CV63
MEMORANDUM OPINION, ORDER AND
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case comes before the Court on Plaintiff’s Application to
Proceed in District Court without Prepaying Fees or Costs (Docket
Entry 1), filed with Plaintiff’s pro se form Complaint (Docket
Entry 1-1). The Court will grant Plaintiff’s request to proceed as
a pauper for the limited purpose of recommending dismissal of this
action, under 28 U.S.C. § 1915(e)(2)(i) and (ii), as frivolous and
for failure to state a claim.
LEGAL BACKGROUND
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts ‘solely
because his poverty makes it impossible for him to pay or secure
the costs.’”
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953
(4th Cir. 1995) (en banc) (quoting Adkins v. E.I. DuPont de Nemours
& Co., 335 U.S. 331, 342 (1948)).
“Dispensing with filing fees,
however, [is] not without its problems.
Parties proceeding under
[Section 1915] d[o] not face the same financial constraints as
ordinary litigants.
In particular, litigants suing in forma
pauperis d[o] not need to balance the prospects of successfully
obtaining relief against the administrative costs of bringing
suit.”
Nagy v. Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th
Cir. 2004). To address this concern, the in forma pauperis statute
provides (in relevant part) that “the court shall dismiss the case
at any time if the court determines . . . (B) the action . . . (i)
is frivolous or malicious; [or] (ii) fails to state a claim on
which relief may be granted . . . .”
28 U.S.C. § 1915(e)(2).
As to the first of these grounds for dismissal, the United
States Supreme Court has explained that “a complaint, containing as
it
does
both
factual
allegations
and
legal
conclusions,
is
frivolous where it lacks an arguable basis either in law or in
fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In
assessing such matters, this Court may “apply common sense.”
Nasim, 64 F.3d at 954; see also Nagy, 376 F.3d at 256-57 (“The word
‘frivolous’
is
inherently
categorical definition.
elastic
. . .
and
not
susceptible
to
The term’s capaciousness directs
lower courts to conduct a flexible analysis, in light of the
totality of the circumstances, of all factors bearing upon the
frivolity of a claim.” (some internal quotation marks omitted)).
2
Alternatively, a plaintiff “fails to state a claim upon which
relief may be granted,” 28 U.S.C. § 1915(e)(2)(b)(ii), when the
complaint does not “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added)
(internal
citations
omitted)
(quoting
Twombly, 550 U.S. 544, 570 (2007)).
Bell
Atlantic
Corp.
v.
“Where a complaint pleads
facts that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557).
This standard “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.”
Id.
In other words, “the tenet
that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.”
Id.1
DISCUSSION
1
Although the Supreme Court has reiterated that “[a] document
filed pro se is to be liberally construed and a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers,” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal citations and quotation
marks omitted), the United States Court of Appeals for the Fourth
Circuit has “not read Erickson to undermine Twombly’s requirement
that a pleading contain more than labels and conclusions,”
Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th Cir. 2008)
(internal quotation marks omitted) (dismissing pro se complaint);
accord Atherton v. District of Columbia Off. of Mayor, 567 F.3d
672, 681-82 (D.C. Cir. 2009) (“A pro se complaint . . . ‘must be
held to less stringent standards than formal pleadings drafted by
lawyers.’
But even a pro se complainant must plead ‘factual
matter’ that permits the court to infer ‘more than the mere
possibility of misconduct.’” (quoting Erickson, 551 U.S. at 94, and
Iqbal, 556 U.S. at 679, respectively)).
3
The Complaint asserts that Defendant Duke University violated
Plaintiff’s rights under the First Amendment to the United States
Constitution, Article 19.2 of the International Covenant on Civil
and Political Rights (the “ICCPR”), and Article 19 of the Universal
Declaration of Human Rights (the “UDHR”) by “refus[ing] to publish
[his] article [‘The Crucible of a Gay Jew: A Resolution to an
Orthodox Duress’] as a paid advertisement in its journal GLQ: A
Journal of Lesbian and Gay Studies, a journal owned and operated by
Duke University press, which is also known as the business entity
of Duke University.”
(Docket Entry 1-1 at 2.)
do not state a claim.
These allegations
Indeed, their insufficiency appears so
clearly as to render this action frivolous. Further, because these
defects admit no remedy, the Court should dismiss with prejudice.
For a plaintiff “[t]o raise [a] First Amendment argument, the
[defendant’s] actions must constitute state action.”
Kidwell v.
Transportation Commc’ns Int’l Union, 946 F.2d 283, 297 (4th Cir.
1991) (quoting Edmonson v. Leesville Concrete Co., Inc., 500 U.S.
614, 619 (1991), for proposition that “state action prerequisite
‘preserves an area of individual freedom,’ and permits ‘citizens to
structure their private relations as they choose subject only to
the constraints of statutory or decisional law’” (second set of
internal quotation marks omitted)); accord McFadyen v. Duke Univ.,
786 F. Supp. 2d 887, 947 (M.D.N.C. 2011) (“[T]he Supreme Court has
held that ‘the constitutional guarantee of free speech is a
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guarantee
only
against
abridgment
by
government,
federal
or
state.’” (quoting Hudgens v. National Labor Relations Bd., 424 U.S.
507, 513 (1976))).
In this case, “the alleged conduct involves
actions by Duke, not the government, to control the types of speech
that Duke would allow on its own property,” McFadyen, 786 F. Supp.
2d at 947, and, as a result, Plaintiff’s allegations “cannot
support a claim for violation of the First Amendment,” id.
“Nor do the ICCPR or the [UDHR] help [Plaintiff’s] claim. The
United
States
has
ratified
the
ICCPR,
but
the
substantive
provisions are not self-executing and do not create enforceable
obligations.
And the [UDHR] is a statement of principles and not
a treaty or international agreement imposing legal obligations.”
Ruhaak v. Commissioner of Internal Revenue, 422 Fed. Appx. 530, 532
(7th Cir. 2011) (internal citations omitted) (citing, inter alia,
Sosa v. Alvarez–Machain, 542 U.S. 692, 728, 734–35 (2004)); accord
Guaylupo-Moya v. Gonzales, 423 F.3d 121, 133 (2d Cir. 2005) (“The
ICCPR
is
a
signed
self-executing. . . .
and
ratified
treaty,
but
.
.
.
is
not
[W]hen a treaty is not self-executing, the
treaty does not provide independent, privately enforceable rights.
. . .
[T]he UDHR is not a treaty . . . .”); Dutton v. Warden, Fed.
Corr. Inst. Estill, 37 Fed. Appx. 51, 53 (4th Cir. 2002) (“[T]he
ICCPR is not privately enforceable.”); Abebe v. Sutton, Civil
Action No. 5:12-202-MBS-KDW, 2012 WL 1096153, at *1 (D.S.C. Apr. 2,
2012) (unpublished) (“The UDHR ‘does not of its own force impose
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obligations as a matter of international law,’ much less create
justiciable rights beyond those provided for in the Constitution.”
(quoting Sosa, 542 U.S. at 734)); Brown v. Gropper, No. 3:08CV278,
2008 WL 4809924, at *1 (E.D. Va. Oct. 30, 2008) (unpublished)
(“[T]he Supreme Court has counseled that ‘the UDHR does not of its
own force impose obligations as a matter of international law.’”
(quoting Sosa, 542 U.S. at 734) (internal brackets omitted)).2
CONCLUSION
Plaintiff’s Complaint fails to state a claim against Defendant
Duke
University.
Moreover,
the
obvious
and
irremediable
deficiencies of the Complaint make this action frivolous and
warrant its dismissal with prejudice.
IT
IS
THEREFORE
ORDERED
that
Plaintiff’s
Application
to
Proceed in District Court without Prepaying Fees or Costs (Docket
Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT
TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that this action be dismissed with prejudice
under 28 U.S.C. § 1915(e)(2)(i) and (ii), as frivolous and for
failure to state a claim.
2
Even if the ICCPR and/or UDHC permitted private enforcement,
the state action requirement likely still would apply so as to
preclude claims of this sort by Plaintiff against Defendant Duke
University. See Jourdain v. Service Emps. Int’l Union Local 1199,
No. 09Civ1942(AKH), 2010 WL 3069965, at *7 (S.D.N.Y. July 28, 2010)
(unpublished).
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/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
June 21, 2012
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