KAREN L. HAYES, Magistrate Judge.
Before the undersigned Magistrate Judge, on reference from the District Court, is a motion to dismiss for failure to state a claim upon which relief can be granted, [doc. # 4], filed by defendants Monroe City School Board, Brent Vidrine, Roosevelt Rankins, Whitney Martin (incorrectly sued initially as "Whitney Morton"); and W. R. Berkley Corp (initially sued as XYZ Insurance Company). The motion is opposed. For reasons set forth below, it is recommended that the motion be granted.
On November 8, 2017, Bonnie Kirk filed the instant complaint individually, and on behalf of her minor child, "JS," against the Monroe City School Board ("MCSB"); Brent Vidrine, MCSB Superintendent; Roosevelt Rankins, Neville High School Dean of Student Affairs; Whitney Martin, former Neville High School Principal (incorrectly named in the complaint as "Whitney Morton"); and W. R. Berkley Corp (initially sued as XYZ Insurance Company). Kirk asserted claims under 42 U.S.C. § 1983 for violations of the Fourteenth Amendment to the U.S. Constitution, 42 U.S.C. § 1981, Title VI of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. She also set forth state law tort claims for defamation and slander. Kirk requested resulting compensatory, special, punitive, and exemplary damages; reasonable attorney's fees; costs; interest; and equitable relief.
The court recites the following narrative that was set forth in plaintiff's original complaint:
(Compl., ¶ A) (with minor modifications).
On March 5, 2018, defendants filed the instant motion to dismiss for failure to state a claim upon which relief can be granted. In support of their motion, defendants argued that, 1) Kirk, in her individual capacity asserted no actionable legal claim against any party; 2) the nature of each defendant's actions was not specifically alleged, or shown that each acted with deliberate indifference or with conscious disregard for any legally protected right under Titles VI and IX; 3) no official governmental policy or custom of the MCSB was identified as the moving force behind plaintiff's claim; 4) the complaint did not allege that any specific defendant was delegated with indicia of authority to act as a policymaker; 5) no conduct was specified in the complaint as an official action of the MCSB to show that it acted with deliberate indifference to plaintiff's rights under Titles VI and IX; 6) the MCSB, Vidrine, Rankins, and Martin were entitled to qualified immunity; 7) plaintiff could not assert a claim for punitive damages against defendants; and 8) plaintiff's discrimination and tort law claims were time-barred.
On May 29, 2018, the undersigned issued a report recommending that defendants' motion be granted, and that plaintiff's federal law claims be dismissed with prejudice, but that her state law claims be dismissed without prejudice. (May 29, 2018, Report and Recommendation [doc. # 12]). In so doing, the undersigned found that plaintiff failed to allege facts to plausibly establish that defendants intentionally discriminated against JS on the basis of gender or race. Id. However, the recommendation of dismissal was subject to plaintiff's opportunity to seek leave of court to amend her complaint with a proposed pleading that cured the deficient allegations. Id.
On June 13, 2018, plaintiff availed herself of that opportunity and filed a motion for leave to amend her complaint, which the court granted. [doc. #s 16-20]. The amended complaint provided, in part, that,
(Pl. Amend. Compl. [doc. # 20]).
The amended complaint further alleged, inter alia: 1) violations of the fourteenth amendment to the United States Constitution; 2) deprivation of rights under 42 U.S.C. §§ 1981 & 1983; and 3) violations of the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g, stemming from defendants' disclosure of information to the local press about a minor. Id. Plaintiff also formally substituted W.R. Berkley Corporation for the fictitious XYZ Insurance Company. Id. Finally, plaintiff attached a copy of an August 9, 2017, report issued by the United States Department of Education, Office for Civil Rights (the "OCR Report"), which determined, by a preponderance of the evidence, that Monroe City Schools discriminated and retaliated against J.S. in violation of Titles VI and IX. (OCR Report, Amend. Compl., Exh. A).
In light of the amended complaint, the District Court referred the matter back to the undersigned for issuance of a supplemental report and recommendation. (June 21, 2018, Minute Entry [doc. # 22]). Thereafter, the undersigned ordered the parties to file supplemental memoranda that addressed the amended complaint. (June 21, 2018, Order [doc. # 22]). The parties so complied. [doc. #s 23-27].
In the meantime, J.S. reached the age of majority. See Defs. Suppl. Memo. & Exh. [doc. # 23]. Accordingly, the court accorded Kirk the opportunity to amend her complaint to substitute her son as plaintiff. (July 25, 2018, Order [doc. # 28]). On August 10, 2018, Jaylon Sewell, was substituted as plaintiff. (Amend. Compl. [doc. #29]). Thus, the matter is ripe.
The Federal Rules of Civil Procedure sanction dismissal where the plaintiff fails "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A pleading states a claim for relief, inter alia, when it contains a "short and plain statement . . . showing that the pleader is entitled to relief . . ." Fed.R.Civ.P. 8(a)(2). Circumstances constituting fraud or mistake, however, must be alleged with particularity. Fed.R.Civ.P. 9(b).
To withstand 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, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)). A claim is facially plausible when it contains sufficient factual content for the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Plausibility does not equate to possibility or probability; it lies somewhere in between. See Iqbal, supra. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. See Twombly, 550 U.S. at 556, 127 S.Ct. at 1965. Although the court must accept as true all factual allegations set forth in the complaint, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" does not satisfy Rule 8. Id. "[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim." City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148 (5th Cir. 2010).
Assessing whether a complaint states a plausible claim for relief is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, supra. (citation omitted). A well-pleaded complaint may proceed even if it strikes the court that actual proof of the asserted facts is improbable, and that recovery is unlikely. Twombly, supra. Nevertheless, a court is compelled to dismiss an otherwise well-pleaded claim if it is premised upon an invalid legal theory. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827 (1989).
When considering a motion to dismiss, courts generally are limited to the complaint and its proper attachments. Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation omitted). However, courts may rely upon "documents incorporated into the complaint by reference, and matters of which a court may take judicial notice" — including public records. Dorsey, supra; Norris v. Hearst Trust, 500 F.3d 454, 461 n9 (5th Cir. 2007) (citation omitted) (proper to take judicial notice of matters of public record).
In their motion to dismiss, as supplemented, defendants argued that Bonnie Kirk lacked standing to assert claims in her own right. However, Jaylon Sewell has since been substituted as plaintiff, and therefore, this argument is moot.
Title VI of the Civil Rights Act of 1964 states that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. Similarly, Title IX of the Education Amendments of 1972 provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).
The Supreme Court has recognized that,
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 286, 118 S.Ct. 1989, 1997 (1998) (internal citations omitted).
Thus, because Titles VI and IX "operate in the same manner," case law interpreting one provision is applicable to the other. See Mohamed for A.M. v. Irving Indep. Sch. Dist., 252 F.Supp.3d 602, 628 n.14 (N.D. Tex.2017).
It is manifest that there is no individual liability under Titles VI and IX. Muthukumar v. Kiel, 478 Fed. Appx. 156, 159 (5th Cir.2012) (Title VI); Price ex rel. Price v. Louisiana Dep't of Educ., 329 Fed. Appx. 559, 561 (5th Cir.2009); Plummer v. Univ. of Houston, 860 F.3d 767, 783 n.12 (5th Cir.2017) ("Liability under Title IX does not extend to school officials, teachers and other individuals."); Hundall v. Univ. of Texas at El Paso, No. 13-0365, 2014 WL 12496895, at *15 n.23 (W.D. Tex. Feb. 21, 2014) (collecting cases) (Title IX). Thus, plaintiff's Titles VI and IX claims against the individual defendants in their individual capacities are subject to dismissal. Moreover, an entity may not be held vicariously liable for an employee's conduct under Titles VI and IX. Vouchides v. Houston Cmty. Coll. Sys., No. 10-2559, 2011 WL 4592057, at *6-7 (S.D. Tex. Sept. 30, 2011) (and cases cited therein). Therefore, plaintiff's Title VI and IX claims necessarily are limited to claims that the MCSB, as an entity, discriminated and retaliated against plaintiff.
Furthermore, insofar as plaintiff sued the individual defendants in their official capacities, it is manifest that official capacity suits, "generally represent only another way of pleading an action against an entity of which an officer is an agent." Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 3105 (1985) (citing, Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55, 98 S.Ct. 2018, 2035, n. 55 (1978)). Thus, "an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity." Id.
When, as in this case, the local government entity/employer itself is a defendant, i.e., the MCSB, then official capacity claims against specific individuals employed by, or managers of, that entity are redundant and subject to dismissal. See Hicks v. Tarrant Cnty. Sheriff's Dep't, 352 F. App'x 876, 877 (5th Cir. 2009) (citations omitted) (because local government entity was a named defendant, district court did not err in dismissing official capacity claims against its commissioners); Mason v. Lafayette City-Par. Consol. Gov't, 806 F.3d 268 (5th Cir.2015) (claim against mayor in his official capacity was treated as claim against the municipality itself); see also Butler v. Craft, No. 16-1158, 2017 WL 1366897, at *6 (W.D. La. Apr. 11, 2017) (collecting cases).
Private individuals may sue under Section 601 of Title VI to obtain both monetary and injunctive relief. Mohamed for A.M. v. Irving Indep. Sch. Dist., 252 F.Supp.3d 602, 626 (N.D. Tex.2017) (citing Alexander v. Sandoval, 532 U.S. 275, 279, 121 S.Ct. 1511 (2001)). Likewise, Title IX implies a private right of action to enforce its prohibition on intentional sex discrimination to include recovery of monetary damages. Plummer v. Univ. of Houston, No. 14-2959, 2015 WL 12734039, at *14 (S.D. Tex. May 28, 2015), aff'd, 860 F.3d 767 (5th Cir.2017) (citation omitted).
A private litigant under Title VI or IX must plead facts to support intentional discrimination. Price ex rel. Price, supra; Pacheco v. St. Mary's Univ., No. 15-1131, 2017 WL 2670758, at *14 (W.D. Tex. June 20, 2017) (citing Fort v. Dallas Indep. Sch. Dist., 82 F.3d 414, 1996 WL 167072, at *4 (5th Cir. Mar. 11, 1996) (unpubl.)). District courts regularly apply the body of law developed under analogous Title VII provisions to Title VI and IX claims. See Pacheco, supra. Thus, in the absence of direct evidence of discrimination, courts apply the McDonnell Douglas burden-shifting framework, which requires plaintiff to establish a prima facie case of discrimination, comprised of the following elements: "(1) they are members of a protected class; (2) they suffered adverse action; and (3) they were treated less favorably than similarly situated students." Silva v. St. Anne Catholic Sch., 595 F.Supp.2d 1171, 1182 (D. Kan. 2009). Alternatively, the third factor may be satisfied with facts to indicate that discrimination was a substantial or motivating factor in defendant's actions. See Pacheco, supra.
Here, plaintiff alleged that he was an African-American male, and therefore, a member of two protected classes. However, aside from an allegation that all African-American males with dye in their hair were sent to the office, there are no facts to suggest that race or gender was a motivating factor in any material adverse action. In fact, other than plaintiff, "no other students" were disciplined during the 2016-2017 school year "for their color or dyeing their hair." Plaintiff further confirmed in his amended complaint that, following the trip to the office, no student with dyed hair agreed to un-dye their hair. While the court clearly recognizes that singling out members of a protected class can support a claim of discrimination, the only class-wide action taken by Rankins was to have the students sent to the "office." The court is not persuaded, however, that a single trip to the office, without additional ramifications, is sufficient to support an adverse action that resulted in consequent and cognizable harm or damages.
Subsequently, plaintiff was the lone individual of any race or gender singled out by Rankins and Martin by restricting his attendance at class and/or lunch on the first day of school. In other words, there were other African-American males who had dye in their hair, but only plaintiff was disciplined. It necessarily follows that all students with colored or dyed hair were treated the same — but for plaintiff. This circumstance undermines any inference of intentional discrimination which might have arisen from the purported disparate treatment accorded plaintiff, versus females and white males. Under the factual scenario presented by the complaint, as amended, the court cannot plausibly infer that the individual defendants intentionally discriminated against plaintiff on the basis of gender or race.
Furthermore, under both Titles VI and IX, in cases that do not involve an official policy,
Here, plaintiff alleged that the saga began when Roosevelt Rankins and Whitney Martin prevented him from attending class and eating lunch on the first day of school because his hair was dyed blond. The next day plaintiff met with MCSB Superintendent Brent Vidrine and advised him of Rankins and Martin's actions. Vidrine stated that he would talk with Rankins and Martin if plaintiff would tone his hair down a bit. Thereafter, plaintiff does not allege that he changed his hair color or was prohibited from attending school. Therefore, there are no allegations that the MCSB had knowledge of the alleged discriminatory treatment, but thereafter, failed to take action.
Defendants further argue that plaintiff's claims are time-barred. Statutes of limitations serve as absolute bars to suit. Nottingham v. Richardson, 499 Fed. Appx. 368, 375 (5th Cir.2012). Titles IX and VI are treated like 42 U.S.C. § 1983 for limitations purposes. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir.2015) (Title IX); see also Price v. Hous. Auth. of New Orleans, No. 01-3016, 2003 WL 22038409, at *2 (E.D. La. Aug. 27, 2003) (Title VI). Like § 1983, there is no federal statute of limitations for actions brought pursuant to Titles VI and IX. Id. Therefore, "section 1983 actions borrow the forum state's general personal injury limitations." Mejia v. Unknown Officers, 168 F.3d 485 (5th Cir.1999) (citing Owens v. Okure, 488 U.S. 235, 243-48 (1989)) (emphasis added). "In Louisiana, the applicable section 1983 limitation is one year." Id. (citing inter alia, Louisiana Civ. Code Ann. art. 3492).
Nonetheless, "[f]ederal law determines . . . when a section 1983 cause of action accrues, and it accrues when the aggrieved party knows, or has reason to know of, the injury or damages which form the basis of the action." Mejia, supra (citing Piotrowski v. City of Houston, 51 F.3d 512, 516 (5th Cir.1995)). Thus, "if the plaintiff knows of the injury and the connection between the injury and the defendant's actions, or if the circumstances would lead a reasonable person to investigate the matter further, then the cause of action has accrued." Id.
Here, it is manifest that plaintiff's federal cause of action for the alleged discriminatory action of being sent to the office and missing the first day of school accrued on August 15, 2016, — the date that it occurred. Plaintiff, however, did not assert his federal law claim until he filed the instant suit more than one year later. By then, of course, it was too late. Accordingly, his claims under Titles VI and IX stemming from actions that took place on, or before August 15, 2016, as well as his parallel claims under § 1983 and 42 U.S.C. § 1981
Plaintiff further alleged in his complaint that Rankins called him a "thug," and asked him "if he was gay with that mess in his head." Rankins continued to berate and portray plaintiff as a thug and disrespectful child because of his hair. He continued with his intimidation and ridicule tactics towards plaintiff every other day, and encouraged other students not to talk to him. Thereafter, on an unspecified date,
To establish a claim for a school's failure to respond appropriately to gender or racial-based harassment (at least in the related, arguably less egregious context of student-on-student context) the plaintiff must show that: "(1) the sexual or racial harassment was "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school"; (2) the district had actual knowledge of the sexual harassment; and (3) it acted with deliberate indifference to the harassment. See Watkins v. La Marque Indep. Sch. Dist., 308 Fed. Appx. 781, 783 (5th Cir.2009) (discussing sexual harassment).
In this case, however, plaintiff does not plausibly allege that the harassment was based on gender or race, as opposed to his own particular version of dyed hair. Indeed, there are no allegations in the complaint that Rankins harassed any other student with dyed hair on account of the student's race or gender. Furthermore, on its face, the term "thug" is race neutral. Hayes v. Cablevision Sys. New York City Corp., No. 07-2438, 2012 WL 1106850, at *9-10 (E.D. N.Y. Mar. 31, 2012) (citing Random House Webster's College Dictionary (2d ed.1997). Similarly, while use of the word "gay" may be objectionable in a particular context, it is not inherently offensive. Sinn v. Daily Nebraskan, 638 F.Supp. 143, 145 (D. Neb.1986), aff'd sub nom. Sinn v. The Daily Nebraskan, 829 F.2d 662 (8th Cir.1987).
To be actionable, the harassment must have had a "concrete, negative effect on the victims' education, such as creating disparately hostile educational environment relative to [the victim's] peer[s], forcing the student to change his or her study habits or to move to another district, or lowering the student's grades." Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 409-10 (5th Cir.2015) (internal citations and quotation marks omitted). While Rankins' conduct certainly was inappropriate and unprofessional, and made plaintiff feel "depressed and sad," there are no allegations that it materially affected his educational opportunities. See Sanches v. Carrollton-Farmers Branch Indep. Sch. Dist., 647 F.3d 156, 167 (5th Cir.2011).
Finally, according to the complaint, once plaintiff complained to MCSB officials on an unspecified date about Rankins' conduct, plaintiff does not allege that Rankins continued to harass him.
Plaintiff further contends that defendants retaliated against him when his mother complained about the alleged discrimination that he was facing at school. In interpreting Title IX, and thus, by extension race discrimination under Title VI, the Supreme Court has recognized that "retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74, 125 S.Ct. 1497, 1504 (2005). Therefore, "when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional `discrimination' `on the basis of sex,' in violation of Title IX." Id.
Here, plaintiff alleged that when his mother complained to unidentified "school officials" about the ridicule and discrimination that he was suffering at the hands of school officials, Rankins retaliated against him on November 16, 2016, by encouraging a female student to lie and say that he had committed an "unsubstantiated act."
The complaint, however, does not identify any "appropriate person" at the MCSB with whom plaintiff's mother spoke to concerning Rankins and Martin's retaliatory actions. To the contrary, following a suspension pending investigation of the "unsubstantiated act" that Rankins purportedly instigated, plaintiff apparently was cleared of the charge at an expulsion hearing a little over two weeks later. In other words, once the retaliatory conduct was brought to the attention of an "appropriate person," the MCSB did not display deliberate indifference to the conduct.
Plaintiff complains that, because of the pendency of the "unsubstantiated allegation," he was not permitted to travel to New Orleans with the school football team for the state championship game. Given the indeterminate status of the charge, however, it is neither discriminatory nor retaliatory for the MCSB to limit participation in extracurricular activities, particularly while a student is suspended. In other words, there are no allegations that the MCSB treated plaintiff differently than any other student who was the subject of an allegation that ultimately proved to be "unsubstantiated." See Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 415 (5th Cir.2015).
In his amended complaint, plaintiff alleged that defendants violated his rights, including those secured by the Fourteenth Amendment pursuant to 42 U.S.C. §§ 1981 and 1983. "To state a claim of racial [and gender] discrimination under the Equal Protection Clause and section 1983, the plaintiff `must allege and prove that [(1) he or she] received treatment different from that received by similarly situated individuals and that [(2)] the unequal treatment stemmed from a discriminatory intent.'" Fennell, supra (citation omitted).
It is manifest, however, that a local government entity or municipality is not subject to liability under § 1983 by virtue of the doctrine of respondeat superior. O'Quinn v. Manuel, 773 F.2d 605, 608 (5th Cir.1985). Instead, to impose § 1983 liability against a government entity for the misconduct of one of its employees or officers, plaintiff must demonstrate that the constitutional deprivation was caused by a policy or custom of the entity. Kohler v. Englade, 470 F.3d 1104, 1115 (5th Cir. 2006) (citing Monell v. New York City Dept. of Soc. Serv., 436 U.S. 658, 690-691, 98 S.Ct. 2018, 2036 (1978)).
Plaintiff contends that the requirements of Monell are met pursuant to the OCR's finding that the MCSB violated Titles VI and IX. However, the OCR confirmed that the MCSB did not discipline any students in the 2016-2017 school year for their hair color or dyeing their hair. (OCR Report, Amend. Compl., Exh. A). The OCR also made no findings regarding any policy or custom of harassment or hostile school environment. Id.
In their motion to dismiss, defendants invoked qualified immunity, which nominally is characterized as an affirmative defense.
Earlier in this opinion, the undersigned found that plaintiff failed to allege facts to support intentional racial or gender discrimination or harassment. See discussion, supra. Accordingly, his equal protection claim necessarily suffers the same fate as his unsuccessful Title VI and IX claims.
Section 1981 provides, in pertinent part, that
42 U.S.C. § 1981(a).
Section 1981, however, does not provide a separate cause of action against local government entities. Oden v. Oktibbeha Cty., Miss., 246 F.3d 458, 462 (5th Cir.2001) (citing Jett v. Dallas Independent School District, 491 U.S. 701, 731, 109 S.Ct. 2702 (1989)). Instead, violations of civil rights under § 1981 must be asserted against state actors under § 1983. Id. Here, however, plaintiff did not assert his § 1981 claim against the MCSB via § 1983. In any event, he did not advance a theory of discrimination stemming from one of the activities enumerated in the statute.
Alternatively, plaintiff may be able to assert a § 1981 suit against a government employee acting in his or her individual capacity. See Oden, 245 F.3d at 470 n.5. To establish an individual capacity claim for discrimination under § 1981, "a plaintiff must allege facts in support of the following elements: (1) that the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) the discrimination concerns one or more of the activities enumerated in the statute." McNulty v. J.C. Penney Co., 305 Fed. Appx. 212, 217 (5th Cir.2008). Again, however, at minimum, plaintiff's claim falters on the intent element of his cause of action. See discussion, supra.
In his amended complaint, plaintiff alleged that the MCSB, its officials, and employees violated the Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. § 1232g. Be that as it may, there is no private cause of action under FERPA. Tarka v. Franklin, 891 F.2d 102, 104 (5th Cir.1989). FERPA also is not enforceable pursuant to 42 U.S.C. § 1983. Gonzaga Univ. v. Doe, 536 U.S. 273, 276, 122 S.Ct. 2268, 2271 (2002).
In his amended complaint, plaintiff alleged that W. R. Berkley Corporation was the insurer of MCSB. However, the court's having determined that plaintiff does not state a plausible claim for relief under federal law against the MCSB, and its employees, this finding necessarily precludes recovery against W. R. Berkley Corporation as the MCSB's insurer. See e.g., Bolton v. Tulane Univ. of Louisiana, 692 So.2d 1113, 1125 (La. App. 4th Cir. 1997); Carlisle v. State, Through Dep't of Transp. & Dev., 400 So.2d 284, 287 (La. Ct. App.1981).
When, as recommended here, all claims which conferred federal subject matter jurisdiction are dismissed,
As instructed by Iqbal, the court has accorded no weight to the conclusory allegations set forth in plaintiff's complaint, as amended. See Iqbal, supra. Plaintiff's remaining allegations contain no facts sufficient to confer plausibility upon his claims. Id. Instead, the complaint, as amended, remains no more than "a formulaic recitation of the elements of a cause of action," which does not satisfy the Rule 8 pleading standard. Id. Under these circumstances, there is no reasonable expectation that discovery will reveal evidence to support the missing elements of the claim. See Twombly, 550 U.S. at 556, 127 S.Ct. at 1965.
IT IS RECOMMENDED that defendants' motion to dismiss for failure to state a claim upon which relief can be granted [doc. # 4] be GRANTED, and that plaintiff's federal claims be DISMISSED, WITH PREJUDICE. FED. R. CIV. P. 12(b)(6).
IT IS FURTHER RECOMMENDED that plaintiff's remaining claims arising under the laws of the State of Louisiana be DISMISSED, WITHOUT PREJUDICE. 28 U.S.C. § 1367(c).
Under the provisions of 28 U.S.C. §636(b)(1)(C) and Fed. R. Civ. P. 72(b), the parties have
Here, however, there is no indication that plaintiff's § 1981 claim derives from the 1991 amendment to § 1981. Accordingly, plaintiff's § 1981 claim is subject to a one year statute of limitation.
Plaintiff further invoked Louisiana's ancient civilian doctrine of contra non valentem agere nulla currit praescriptio where "in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues." Corsey v. State, Through Dep't of Corr., 375 So.2d 1319, 1321 (La. 1979) (citations omitted). However, aside from citing its provisions, and mentioning exhaustion of administrative remedies, he makes no effort to demonstrate its applicability.
In this court's prior report and recommendation, the undersigned noted the potential applicability a continuing injury to defer accrual of the cause of action. Plaintiff, however, did not invoke that theory. Moreover, "[u]nder the continuing violations doctrine, a plaintiff may complain of otherwise time-barred discriminatory acts if it can be shown that the discrimination manifested itself over time, rather than in a series of discrete acts." Frank v. Xerox Corp., 347 F.3d 130, 136 (5th Cir.2003). Here, the single day suspension from attending class was a discrete act that is not subject to the continuing violations doctrine.
