United States District Court, W.D. Wisconsin
C. GRIFFIN, Plaintiff,
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.
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.
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.
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.
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.
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.)
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
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.
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
Defendant University of Wisconsin-Milwaukee
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 ...