Dukuly v. Rives-East

Filing 29

ORDER granting 19 Motion to Dismiss for Failure to State a Claim; denying as moot 21 Motion for Hearing; denying as moot 24 Motion ; denying as moot 28 Motion for Hearing. Signed by U.S. District Judge Karen E. Schreier on 7/26/18. (DJP)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
JUSU DAVID DUKULY,

CIV. 4:18-CV 04040-KES

Plaintiff,
ORDER GRANTING
MOTION TO DISMISS

vs.
DARCIE RIVES-EAST,
Defendant.

Plaintiff, Jusu Dukuly, brought suit against defendant alleging violations
of school academic policy, intimidations and harassment, discriminations,
projected criticisms, academic distress, emotional distress, psychological
distress, pain and suffering, failure to post grades, defamation of character,
and a Family Educational Rights and Privacy Act (FERPA) violation.
Docket 1 ¶ V. Defendant Augustana 1 moves to dismiss Dukuly’s complaint
under 12(b)(6) of the Federal Rules of Civil Procedure. Dukuly opposes the
motion. For the following reasons, defendant’s motion to dismiss is granted.
Docket 20.

Plaintiff names Darcie Rives-East as the defendant. She is being sued in her
professional capacity as an associate professor and is employed by Augustana
University, an educational institution. FERPA applies only to educational
institutions. Thus, Augustana is the proper defendant in this case. The court
will henceforth treat Augustana as such.
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BACKGROUND
Dukuly filed a pro se complaint on April 16, 2018, naming defendant,
Augustana, and alleging a FERPA violation among other claims. Docket 1 ¶ V.
On April 17, 2018, this court granted Dukuly’s motion for leave to proceed in
forma pauperis. Docket 9.
Dukuly was enrolled in English 200C, taught by Dr. Rives-East at
Augustana. The alleged FERPA violation occurred when Dr. Rives-East
provided a detailed video presentation to Augustana administrators and faculty
members documenting and answering each of Dukuly’s allegations. Docket 1.
Dukuly alleges that Dr. Rives-East violated his rights under FERPA by sharing
the video to third parties. Id. ¶ IV. Additionally, Dukuly is suing Dr. Rives-East
for numerous other state-law claims.
Augustana has a written FERPA policy concerning challenges to the
contents of education records.
Any student who believes their education record contains
information that is inaccurate or misleading or otherwise in violation
of their privacy is encouraged to informally discuss this concern with
a university administrator responsible for the department or area in
which the record is located. If the administration decides to not
amend the record as requested, the student may contact the Dean
of Students Office relative to an appeal hearing. Students have a
right to file a complaint with the U.S. Department of Education
concerning alleged failures by the University to comply with
requirements of FERPA. The name and address of the office that
administers FERPA is: Family Policy Compliance Office, U.S.
Department of Education, 400 Maryland Avenue, SW., Washington,
DC, 20202-4605.
Docket 1-5 at 4. Every Augustana student has access to this policy and is able
to follow this policy in addressing any FERPA grievance with either school
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administration or the Department of Education.
A series of emails were exchanged between Dukuly and Dr. Rives-East
concerning the allegations Dukuly brings before the court. Docket 1-3. The
emails concerned Dukuly’s issue with his midterm grade of a “D” received in
Dr. Rives-East’s course. Id. at 6. In response to the email correspondence with
Dukluly, Dr. Rives-East documented by video her grading rubric, essay
feedback (including grading, editing, and recommendations on Dukuly’s
personal essay submission), and numerous email conversations offering both
personal assistance and contact with tutors. Dr. Rives-East’s video was initially
sent to Dukuly and three relevant faculty and administrative personnel
including: Dr. Loren Koepsell (Dukuly’s academic advisor), Dr. Janet BlankLibra (English department chair), and Dr. Mitch Kinsinger (Associate Vice
President of Academic Affairs). In response, Dukuly emailed Dr. Rives-East
stating that he would bring this situation before the Augustana board and the
president of the university, Stephanie Herseth Sandlin. Id. at 7. Then, Dr.
Rives-East replied via email requesting that Dukuly be removed from her
English 200C course, with a copy to Dr. Jerry Jorgensen (Senior Vice President
of Academic Affairs) and Dr. Jeffery Miller (Humanities Division Chair).
Dukuly filed a complaint in federal court against Dr. Rives-East. Docket
1. In response to the complaint, Augustana filed a motion to dismiss for failure
to state a claim. Docket 19. Dukuly opposes the motion to dismiss.
LEGAL STANDARD
A court may dismiss a complaint “for failure to state a claim upon which
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relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to
dismiss under Rule 12(b)(6), the court assumes that all facts in the complaint
are true and construes any reasonable inferences from those facts in the light
most favorable to the nonmoving party. Schaaf v. Residential Funding Corp.,
517 F.3d 544, 549 (8th Cir. 2008). The factual content in the complaint must
“ ‘allow the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.’ ” Braden v. Wal-Mart Stores, Inc., 588 F.3d 585,
594 (8th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). As a
pro se plaintiff, the court lowers the pleading standards liberally in favor of the
complaint; however, the court “ ‘will not supply additional facts, nor will [it]
construct a legal theory for plaintiff that assumes facts that have not been
pleaded.’ ” Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004) (quoting Dunn v.
White, 880 F.2d 1188, 1197 (10th Cir. 1989)).
If the complaint does not contain these bare essentials, dismissal is
appropriate. See Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). “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.’ ” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting Bell Atl. Corp., 550
U.S. at 556). Federal pleading rules call for “a short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), but
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they do not require dismissal of a complaint for imperfectly stating a claim.
DISCUSSION
I.

No Private Right of Action Under FERPA
Dukuly brings a claim stating a FERPA violation was committed by Dr.

Rives-East when she sent her video link to faculty and administrative members
of Augustana University. Dukuly, however, cannot bring a claim under FERPA
because the statute does not give rise to a private right of action. Gonzaga Univ.
v. Doe, 536 U.S. 273, 290 (2002) (“FERPA’s nondisclosure provisions contain
no rights-creating language, they have an aggregate, not individual, focus, and
they serve primarily to direct the Secretary of Education’s distribution of public
funds to educational institutions.”). Augustana’s FERPA policy outlines the
process by which a student could claim a FERPA violation. The process within
the FERPA statute calls for a complaint to be filed with the United States
Department of Education. Under the United States Department of Education,
the Family Policy Compliance Office (FPCO) “reviews, investigates, and
processes complaints of alleged violations of FERPA.” Docket 27 at 1. Here, the
proper avenue for a remedy of a FERPA violation is through the FPCO, not the
courts. Thus, dismissal with prejudice is proper because Dukuly’s complaint
fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
II.

Decline Supplemental Jurisdiction over State-Law Claims
In addition to the FERPA claim, other claims asserted by Dukuly include:

violations of school/academic policy, intimidations and harassment,
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discriminations, projected criticisms, academic distress, emotional distress,
psychological distress, pain and suffering, violations to consent for disclosure
of information to third parties, failure to post grades, and defamation of
character. Docket 1 ¶ V. These are all state-law claims and they do not present
a claim under any federal law or the Constitution. Under 28 U.S.C.
§ 1367(c)(3), the district court “may decline to exercise supplemental
jurisdiction over a claim” if “the district court has dismissed all claims over
which it has original jurisdiction.” Because the FERPA claim was the only claim
over which this court had original jurisdiction, 2 the court exercises its
discretion and dismisses the state-law claims. This matter is in its early stage
and no discovery has been completed. If Dukuly wants to pursue his state-law
claims, he should do so in state court. Thus, the state-law claims are
dismissed without prejudice.
CONCLUSION
Dukuly has failed to state a claim upon which relief may be granted for
his federal question claim under FERPA, so it is dismissed with prejudice. The
court declines to exercise supplemental jurisdiction over the state-law claims
and they are dismissed without prejudice. Thus, it is
ORDERED that Augustana’s motion to dismiss (Docket 19) is granted.
IT IS FURTHER ORDERED that Dukuly’s motion to appear (Docket 21),
Dukuly’s motion for service of subpoena (Docket 24), and Dukuly’s motion to

Dukuly does not allege that the court has diversity jurisdiction over this
matter. Both plaintiff and defendant are residents of South Dakota.
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schedule a hearing (Docket 28) are denied as moot.
DATED this 26th day of July 2018.
BY THE COURT:

Karen E. Schreier

KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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