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Griffin v. UW System Board of Regents

United States District Court, W.D. Wisconsin

October 16, 2019

C. GRIFFIN, Plaintiff,
v.
UW SYSTEM BOARD OF REGENTS, UNIVERSITY OF WISCONSIN-MILWAUKEE, MARK MONES, KRISTEN BOEHM, TIMOTHY OPGENORTH, KIRSTEN ARCHAMBEAU, CHERYL ANDRES and JOHN/JANE DOES, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB DISTRICT JUDGE.

         In this civil action, pro se plaintiff C. Griffin, a former student at defendant University of Wisconsin-Milwaukee, alleges that defendants (1) subjected her to harassment and discrimination because of her race, gender and national origin, in violation of Title VI of the Civil Rights Act of 1964 and the equal protection clause of the Fourteenth Amendment (as enforced through 42 U.S.C. § 1983); and (2) carried out a fraudulent scheme to charge her higher tuition as a non-Wisconsin resident in violation of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1962(c). Before the court is defendants' motion to dismiss all of plaintiff's claims except for her Title VI claim against the Board of Regents. Dkt. #7. Specifically, defendants argue that the university is not a suable entity, the Board of Regents is not a “person” for purposes of § 1983, the Eleventh Amendment bars plaintiff's RICO claim against the Board of Regents and plaintiff's allegations against the individual defendants are insufficient to state any federal claim.

         For the reasons stated below, I am dismissing the University of Wisconsin-Milwaukee as a defendant, dismissing all of plaintiff's equal protection and RICO claims and dismissing plaintiff's Title VI claims against the individual defendants. Thus, the only claim remaining in this lawsuit will be plaintiff's Title VI claim against the Board of Regents.

         In resolving a motion to dismiss, the court must take all well-pled facts in the complaint as true and draw all reasonable inferences in favor of plaintiff. Reger Development, LLC v. National City Bank, 592 F.3d 759, 763 (7th Cir. 2010). Plaintiff alleges the following facts in her complaint.

         ALLEGATIONS OF FACT

         Plaintiff is an African American woman and a life-long resident of Wisconsin. Defendant University of Wisconsin-Milwaukee is a public university and recipient of state and federal funds, offering degrees and course work in undergraduate, graduate, professional and research programs. Defendant Board of Regents is the governing body of the University of Wisconsin System. Defendants Mark Mones, Kristen Boehm, Timothy Opgenorth, Kirsten Archambeau, Cheryl Andres and John and Jane Doe(s) are employees or agents of either the university or the Board of Regents.

         Plaintiff is a former student of the university. She completed approximately 15 credits of course work with excellent grades. When plaintiff first applied to the university, defendants subjected her to “strange, bizarre, and harassing behavior, ” including requiring her to complete unnecessary “to do tasks” as a prerequisite to admission that defendants did not require of similarly-situated applicants of a different race, gender or national origin than plaintiff. (Plaintiff does not identify her national origin.)

         Defendants use an admission “flagging” system that mischaracterized plaintiff and other African American applicants as non-Wisconsin residents and subjected them to higher tuition rates than Wisconsin residents paid. Defendants use Google to verify the residency status of African American women but not any other students. They also created rules that apply only to plaintiff in order to bill her at higher rates than similarly-situated students not of her race, gender or national origin. Defendants have denied plaintiff financial aid, waivers and other opportunities provided to similarly-situated students not of her race, gender or national origin. On at least two occasions, defendants have used the United States mail and interstate wire communications to carry out a scheme to defraud her and subject her to “false and outrageous” billing. As a result, plaintiff has been forced to withdraw as a student and discontinue her education because defendants have placed “holds” on her academic record for nonpayment of these fees.

         Plaintiff attaches several invoices and documents to her complaint, including a December 21, 2018 letter from defendant Archambeau (accounts receivable manager), who explained that the bills sent to her were for past-due summer and fall tuition and fees. Dkt. 1-1. In the letter, Archambeau acknowledged that plaintiff disputed the validity of the bills and told her to contact the undergraduate admissions residency coordinator to address any questions or concerns she may have about her residency determination.

         OPINION

         A. Legal Standard

         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the complaint's legal sufficiency. A complaint survives a motion to dismiss if it “contain[s] 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 Atlantic 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. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. The Court of Appeals for the Seventh Circuit has explained that it is generally sufficient that the “complaint contain[] factual allegations identifying (1) who discriminated against [the plaintiff]; (2) the type of discrimination that occurred; and (3) when the discrimination took place.” McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). See also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough details about the subject-matter of the case to present a story that holds together.”).

         B. Defendant University of Wisconsin-Milwaukee

         Defendants contend that the University of Wisconsin-Milwaukee is not an entity that can sue or be sued. Federal Rule of Civil Procedure 17(b)(3) provides that the capacity of an entity to sue or be sued shall be determined by the law of the state where the court is located, which in this case is Wisconsin. There is no statute granting individual university institutions belonging to the University of Wisconsin system the power to sue or be sued, and courts addressing the issue have not found the universities making up the University of Wisconsin System to be suable entities under Wisconsin law. Derby v. University of Wisconsin, 54 F.R.D. 599, 600 (E.D. Wis. 1972) (dismissing suit against two University of Wisconsin institutions because they are not “natural or legal persons”); Tadder v. University of Wisconsin-Rock County, 2013 WL 3943498, at *2 (W.D. Wis. July 30, 2013) (citing Derby and Alawiye v. University of Wisconsin-Madison, 2006 WL 2161309, *1 (W.D. Wis. July 25, 2006) (dismissing suit against university because it is a non-suable entity)). See also Whiting v. Marathon County Sheriff's Department, 382 F.3d 700, 704 (7th Cir. 2004) (holding that sheriff's department not subject to suit because it is not separate legal entity from county government that it serves). Rather, it is the Board of Regents that has primary responsibility for the governance of the University ...


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