MOORE v. NORTHEASTERN UNIVERSITY et al

Filing 14

MEMORANDUM OPINION AND ORDER signed by JUDGE WILLIAM L. OSTEEN, JR. on 2/21/2019. Defendants' Motion to Dismiss, (Doc. 9 ), is GRANTED. and the claims contained in the Complaint, (Doc. 2 ), are DISMISSED WITHOUT PREJUDICE pursuant to Fed. R. Civ. P. 12(b)(6). As no further claims remain in this matter, a judgment for Defendants shall be entered contemporaneously with this Memorandum Opinion and Order. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ARNOLD MOORE,
Plaintiff,
v.
NORTHEASTERN UNIVERSITY and
THOMAS NEDELL,
Defendants.

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1:18CV324

MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
This case is currently before the court on the consolidated
motion to dismiss filed by Defendants Northeastern University
(“Northeastern”) and Thomas Nedell (“Nedell”). (Doc. 9.)
Defendants move to dismiss pro se Plaintiff Arnold Moore’s
Complaint for failure to state a claim. (Complaint (“Compl.”)
(Doc. 2).)
Plaintiff, a military veteran who suffers from posttraumatic stress disorder (“PTSD”) and migraine headaches, took
online classes through Northeastern from September 2015 to June
2017. (Pl.’s Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Resp. Br.”)
(Doc. 12) at 2.) Plaintiff alleges that Northeastern and Nedell,
the University’s Senior Vice President and Treasurer, violated

42 U.S.C. § 1983 by failing to properly assess plaintiff’s
disabilities and failing to offer sufficient accommodation for
Plaintiff’s medical issues. (Compl. (Doc. 2) at 4–5, 7.)
Plaintiff alleges $500,000.00 in damages. (Id. at 6, 7.)
I.

STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must 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) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). In other words, the plaintiff must
plead facts that “allow[] the court to draw the reasonable
inference that the defendant is liable” and must demonstrate
“more than a sheer possibility that a defendant has acted
unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at
556–57).
When ruling on a motion to dismiss, this court must accept
the complaint’s factual allegations as true. Iqbal, 556 U.S. at
678. Further, “the complaint, including all reasonable
inferences therefrom, [is] liberally construed in the
plaintiff’s favor.” Estate of Williams-Moore v. All. One
Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.
2004) (citation omitted). Despite this deferential standard, a
court will not accept mere legal conclusions as true, and
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“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, [will] not suffice.”
Iqbal, 556 U.S. at 678.
Pro se plaintiffs are subject to a relaxed pleading
standard. See Estelle v. Gamble, 429 U.S. 97, 106 (1976)
(stating that pro se complaints must be “liberally construed”);
see also Haines v. Kerner, 404 U.S. 519, 520–21 (1972). However,
these plaintiffs must still plead facts that fairly put the
defendant on notice of the nature of the claims and “contain
more than labels and conclusions.” Giarratano v. Johnson, 521
F.3d 298, 304 & n.5 (4th Cir. 2008) (quoting Twombly, 550 U.S.
at 555).
II.

NORTHEASTERN
Plaintiff states, under “Basis for Jurisdiction,” that he

is suing state or local officials pursuant to 42 U.S.C. § 1983.
(Compl. (Doc. 2) at 3.) Northeastern, however, is a private
university. (See Doc. 10 at 4.) 42 U.S.C. § 1983 creates a
private right of action only against a defendant who acts “under
color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory.” To sue a private entity under
§ 1983, the plaintiff must show “a sufficiently close nexus
between the State and the challenged action of the regulated
entity so that the action of the latter may be fairly treated as
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that of the State itself.” Jackson v. Metro. Edison Co., 419
U.S. 345, 351 (1974). Almost universally, courts have found that
the mere receipt of state funds is not sufficient to treat an
educational institution as a state actor. See Modaber v.
Culpeper Mem’l Hosp., Inc., 674 F.2d 1023, 1025–26 (4th Cir.
1982) (dismissing a § 1983 action against a private hospital and
finding that the receipt of funds and state regulation were
insufficient to give rise to state action); Allen v. Tulane
Univ., Civ. A. No. 92-4070, 1993 WL 459949, at *1, *2 (E.D. La.
Nov. 2, 1993) (collecting cases, finding that “varying degrees
of governmental involvement in universities ranging from federal
and state grants, student loan guarantees, tax exemptions,
licensing of university owned television and radio stations,
etc.” are not sufficient to create state action).
Applying this general rule, court have consistently held
that private universities cannot be sued under § 1983. See,
e.g., Slovinec v. DePaul Univ., 332 F.3d 1068, 1068 (7th Cir.
2003); Blouin v. Loyola Univ., 506 F.2d 20, 21 (5th Cir. 1975);
Grafton v. Brooklyn Law Sch., 478 F.2d 1137, 1143 (2d Cir.
1973). Here, Plaintiff neither explains how Northeastern acted
under the color of state law nor describes how Northeastern’s
alleged failure to accommodate his medical needs was in any way

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related to any state (as opposed to federal1) funding. Instead,
Plaintiff vaguely references “millions of dollars” in government
funding. (Pl.’s Resp. Br. (Doc. 12) at 3.) Plaintiff’s
allegations are insufficient to establish that Northeastern
acted under the color of state law. Therefore, Plaintiff has
failed to state a claim against Northeastern and Defendants’
motion to dismiss this claim will be granted.
III. NEDELL
Plaintiff also names Nedell, a Senior Vice President and
Treasurer at Northeastern, as a defendant in his individual
capacity. To state a claim under § 1983, Plaintiff must allege
that Nedell personally deprived Plaintiff of “rights,
privileges, or immunities secured by the Constitution and laws.”
42 U.S.C. § 1983. Plaintiff, however, identifies only the
Americans with Disabilities Act (“ADA”). (See Compl. (Doc. 2) at
5, 7–8.) It is well-established that the ADA provides a right of
action exclusively against covered entities and not against
individuals. See, e.g., Baird ex rel. Baird v. Rose, 192 F.3d
462, 471–72 (4th Cir. 1999).

1 Because § 1983 requires state action, “the federal government's
involvement can be discounted for jurisdictional purposes, since § 1983 . . .
ha[s] no applicability to federal action.” Weise v. Syracuse Univ., 522 F.2d
397, 404 (2d Cir. 1975).

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Further, Plaintiff’s allegations entirely fail to suggest
the nature of Nedell’s role in denying Plaintiff’s requested
accommodations; rather, Plaintiff provides only the conclusory
assertion that “I’m sure Thomas Nedell and others were aware of
the shortcomings . . . but did nothing to address them” (Doc. 12
at 2.) The ADA cannot support Plaintiff’s § 1983 claim against
Nedell and Defendants’ motion to dismiss this claim will be
granted.
IV.

CONCLUSION
This court will briefly note that, while not properly pled,

Plaintiff’s allegations are likely best framed as an ADA failure
to accommodate claim against Northeastern. To state such a
claim, Plaintiff must plausibly plead each of the following
elements:
(1) that the plaintiff is disabled and otherwise
qualified academically, (2) that the defendant is a
private entity that owns, leases or operates a place
of public accommodation (for ADA purposes) and
receives federal funding (for Rehabilitation Act
purposes), and (3) that the defendant failed to make
reasonable modifications that would accommodate the
plaintiff's disability without fundamentally altering
the nature of the public accommodation.
Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006)
(citing 42 U.S.C. § 12182(b)(2)(A)(ii)).
It seems relatively clear that Northeastern operates a
place of public accommodation within the meaning of the ADA. See
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id. at 1077 (holding that undergraduate and graduate academic
programs are “place[s] of public accommodation”). This court,
however, finds Plaintiff’s current allegations lacking in
several respects. First, this court notes substantial judicial
skepticism regarding whether migraine headaches constitute a
disability under the ADA. See, e.g., Rhoads v. F.D.I.C., 257
F.3d 373, 380 (4th Cir. 2001) (affirming grant of summary
judgment to defendants on plaintiff’s migraine-based failure to
accommodate claim “[b]ecause we agree that Rhoads failed to make
a sufficient showing of disability”). Second, this court finds
the complaint insufficient to plausibly establish that Plaintiff
was qualified academically for the online program, separate and
apart from his disability. Third and finally, this court
considers it highly questionable whether the alleged three-week
gap between Northeastern’s initial refusal to accommodate
Plaintiff’s migraines and subsequent reversal was unreasonable.
In any event, Plaintiff’s allegations were insufficient to
place Defendants on notice of an ADA claim against Northeastern.
Even pro se plaintiffs are required to “give the defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957),
abrogated by Twombly, 550 U.S. 544 (2007). Plaintiff has failed
to do so.
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For the foregoing reasons, this court finds that
Defendants’ motion to dismiss should be granted and that all
claims against Defendants should be dismissed. The dismissal
shall be without prejudice.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss,
(Doc. 9), is GRANTED.
IT IS FURTHER ORDERED that the claims contained in the
Complaint, (Doc. 2), are DISMISSED WITHOUT PREJUDICE pursuant to
Fed. R. Civ. P. 12(b)(6).
As no further claims remain in this matter, a judgment for
Defendants shall be entered contemporaneously with this
Memorandum Opinion and Order.
This the 21st day of February, 2019.

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United States District Judge

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