Opinion
5:22-CV-355-FL
03-24-2023
KEVIN SLEEM, Plaintiff, v. UNITED STATES FEDERAL GOVERNMENT et al., Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
Brian S. Meyers United States Magistrate Judge
This pro se case is before the court on the amended application by plaintiff Kevin Sleem (“plaintiff”) to proceed in forma pauperis [D.E. 6] and for a frivolity review of the complaint pursuant to 28 U.S.C. § 1915. This matter was referred to the undersigned magistrate judge, pursuant to 28 U.S.C. § 636(b)(1).
The court issued a deficiency order on September 9, 2022. [D.E. 2]. While plaintiff corrected certain deficiencies in his updated filings [D.E. 4, 5, 6], his application remains deficient as (i) certain summonses fail to provide the name and address where an answer or motion must be served ([D.E. 6-14] at 1-12, 19-36), and (ii) plaintiff has still not provided summonses for the U.S. Attorney Civil Process clerk (see [D.E. 2] at 1 (“The defendants are a government agency or employee, and summonses are required for . . . the U.S. Attorney Civil Process Clerk.”)). The undersigned will, however, allow plaintiff's application to proceed in forma pauperis [D.E. 6] for the limited purpose of conducting a frivolity review. See Richardson v. NC Dep't of Health & Hum. Servs., No. 5:12-CV-00180-D, 2012 WL 4426303, at *1 (E.D. N.C. June 29, 2012), report and recommendation adopted, No. 5:12-CV-180-D, 2012 WL 4426059 (E.D. N.C. Sept. 24, 2012).
As set out below, it is recommended, based on the frivolity review, that plaintiff's complaint be DISMISSED for failure to state a claim upon which relief can be granted and deficient pleading.
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. FACTUAL BACKGROUND AND CLAIMS
Plaintiff filed an amended complaint [D.E. 6-1] along with 23 pages of documents ostensibly in support thereof [D.E. 6-2 through D.E. 6-12] (collectively “complaint”). In the complaint, plaintiff asserts claims against five defendants, the United States Federal Government (“USG”), the United States Department of Education (“USDoEd”), UNC Chapel Hill (“UNC-CH”), Florida Atlantic University (“FAO”), and Durham Technical Community College (“Durham Tech”). Although difficult to discern, plaintiff's claims appear to primarily arise from, or relate to, plaintiff's dismissal or suspension from three colleges or universities in the United States. See [D.E. 6-1] at 4 (“The plaintiff has been kicked out of three colleges in the United States. This is a trend, this is not an accident.”).
In his complaint form, plaintiff alleges that this court has federal question jurisdiction on the following basis:
The federal agencies involved include the [USDoEd], Federal Agency, Rules for Getting Kicked Out of College, and Rules for U.S. Navy Officer Commissions. Also, the U.S. treaty with the United Nations for PhD programs . . . The plaintiff is being discriminated against because he is a Jamaican citizen. The 14th amendment to the U.S. constitution forbids discrimination on the basis of national origin, or race, as he is also white, and is being blacklisted . . .
There are also allegations of antitrust violations and money laundering violations from the USDE Cartel of [UNC-CH], FAU, and Durham Tech, in accordance with 31 U.S.C. § 5323 (a)(5) & (g) & (j) Anti-Money Laundering Act (AMLA) and 15 U.S.C. § 7a- 3 Criminal Antitrust Anti-Retaliation Act (CAARA).[D.E. 6-1] at 3.
Plaintiff additionally alleges defamation and libel against the USDoEd. [D.E. 6-2] at 6. When asked to describe the relief he is seeking, plaintiff responded:
[USDoED], 1 million compensatory damages for defamation and libel [UNC-CH], 99 year apartment lease and $1 million in punitive damages FAU, $72,000 in contract fees and $1 million in punitive damages Durham Tech, $100,000 in lost wages and $1 million dollars in punitive damages
The plaintiff also feels that the U.S. Navy should reverse its policy on Chinese gang tattoos and the decision to not let the plaintiff enroll in ROTC at [UNC-CH] and award him an officer commission, though this admittedly may out of the scope of this lawsuit, and other channels may need to be used to achieve this goal.
So, I request the FAU emails detailing the correspondence during the semester from the advisor and professors to Kevin Sleem, which there are none. The only email was the Madura dismissal email. Also, the email from the professor at Durham Tech where they allege harassment.[D.E. 6-1] at 4.
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 31-33 (1992) (standard for frivolousness). A case is frivolous if “it lacks an arguable basis either in law or fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190-91 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-57 (2007) (alterations in original) (internal quotation marks) omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Hill v. Se. Reg'l Med. Ctr., No. 7:19-CV-60-BO, 2019 WL 7041893, at *2 (E.D. N.C. Oct. 21, 2019), report and recommendation adopted, No. 7:19-CV-60-BO, 2019 WL 7163434 (E.D. N.C. Dec. 20, 2019), aff'd, 818 Fed.Appx. 261 (4th Cir. 2020) (discussing the lack of federal question jurisdiction and diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 337 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331.
III. ANALYSIS OF PLAINTIFF'S COMPLAINT
Having granted plaintiff's application to proceed in forma pauperis for the limited purpose of conducting frivolity review, the court must now undertake the frivolity review of this case pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), a court shall dismiss a case if the action is: “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Plaintiff's complaint should be dismissed as he fails to state a claim on which relief may be granted, he fails to show how certain defendants have waived their sovereign immunity protecting them from suit, and the complaint does not comply with Rule 8(a) of the Federal Rules of Civil Procedure. Each is addressed below.
A. Failure to state a claim
Plaintiff's “pleading is prolix, argumentative, largely redundant, and incoherent in some respects.” Hopkins v. North Carolina, No. 4:21-CV-00087-M, 2022 WL 866676, at *1 (E.D. N.C. Mar. 23, 2022). Portions of plaintiff's filings are fantastical, as illustrated by the following excerpts:
The evidence will also show that the U.S. Federal Government is ultimately responsible, and facilitated these ‘deals' with known terrorists from the CIA building in Washington DC. A U.S. Navy officer commission is the likely result of the U.S. Federal Government's mistakes in the Kevin Sleem case from Jamaica....
The plaintiff also requests to the court that his U.S. Navy officer commission be under the name of Eddie Gabriel Roach, a name which fits the seriousness of these crimes against humanity. The plaintiff also requests of the court that this case not be leaked to the newspapers, as these terrorists and criminals do not deserve the notoriety of the attention.[D.E. 6-2] at 1-2; see also Denton, 504 U.S. at 33 (stating that “a finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them”).
Even read in the light most favorable to plaintiff, plaintiff's claims seem to revolve around a theory that a “cartel” or “cabal,” including the USDoED, UNC-CH, FAU, and Durham Tech ([D.E. 6-2] at 7), has engaged in a conspiracy to discourage plaintiff's attempts to pursue higher education. The claim suggests that only this type of collusion or, in plaintiff's words, “antitrust activity” ([D.E. 6-2] at 6) would explain his repeated dismissals or suspensions from numerous institutions ([D.E. 6-2] at 7) (“This is antitrust because this is the third college I have been kicked out of, UNC Dorms 2001 for smoking marijuana, FAU PhD program, and Durham Tech fake email.”). However, rather than alleging conspiratorial conduct by defendants, plaintiff's pleadings and supporting documentation provide that: (1) plaintiff was evicted from his dorm at UNC-CH for smoking marijuana ([D.E. 6-2] at 3); (2) plaintiff's graduate assistantship at FAU was terminated for his “failing to attend all classes, failing to submit assignments on time, and not performing at the required 3.2 GPA, as provided in the [g]uide” ([D.E. 6-2] at 2); and (3) plaintiff was suspended from Durham Tech due to being found responsible for verbal harassment of a college employee or student. [D.E. 6-5]. While plaintiff may disagree with certain policies of these institutions and may even have a different recollection of the underlying facts, he has failed to allege any cognizable cause of action under the Constitution or the laws of the United States, as discussed below.
Plaintiff also admits to making death threats against his advisor at FAU. [D.E. 6-2] at 9 (“The aggravated part of the stalking came from the death threat, which I did utter.”)
1. Fourteenth Amendment claims
Plaintiff alleges that he has been discriminated against under the Fourteenth Amendment to the U.S. Constitution. [D.E. 6-1] at 3. Plaintiff claims he is being discriminated against because he is a Jamaican citizen and also because he is white. Id. In liberally reading plaintiff's filings, plaintiff appears to allege race, and/or national origin discrimination, in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution via 42 U.S.C. § 1983.
The Equal Protection Clause of the Fourteenth Amendment states that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. This clause essentially requires “that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). “[T]o survive a motion to dismiss an equal protection claim, a plaintiff must plead sufficient facts to demonstrate plausibly that he was treated differently from others who were similarly situated and that the unequal treatment was the result of discriminatory animus.” Equity in Athletics v. Dep't of Educ., 639 F.3d 91, 108 (4th Cir.2011) (citing Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2001)).
To establish a claim under § 1983, a plaintiff must prove: “(1) the violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under the color of state law.” Hill v. Revells, No. 4:20-CV-233-FL, 2021 WL 312621, at *2 (E.D. N.C. Jan. 6, 2021), report and recommendation adopted, No. 4:20-CV-233-FL, 2021 WL 308592 (E.D. N.C. Jan. 29, 2021), aff'd, No. 21-2110, 2021 WL 5985559 (4th Cir. Dec. 17, 2021) (quoting Williams v. Studivent, No. 1:09CV414, 2012 WL 1230833, at *4 (M.D. N.C. 12 Apr. 2012)) (internal citations omitted) (internal quotation marks omitted).
Here, plaintiff specifically alleges as follows:
The plaintiff is being discriminated against because he is a Jamaican citizen. The 14th amendment to the U.S. constitution forbids discrimination on the basis of national origin, or race, as he is also white, and is being blacklisted. UNC was a black man who called the police [on plaintiff for smoking marijuana], the dorm RA; FAU was a white man who faked being a college student, Geoff Gitlen; and Durham Tech was a black woman who filed the fake email complaint against me, Audrey Muhammad.[D.E. 6-1] at 3.
Plaintiff's complaint does not contain any facts that indicate that the adverse outcomes plaintiff experienced occurred because of his race or national origin, or that plaintiff's similarly situated peers of a different race or national origin were treated more favorably in response to smoking marijuana in dorms at UNC-CH, maintaining the requisite standards for graduate assistantships at FAU, or in verbal harassment proceedings at Durham Tech. See Logan v. Greenville Tech. Coll., No. CA 6:11-467-HFF-KFM, 2011 WL 5082174, at *2 (D.S.C. Mar. 31, 2011), report and recommendation adopted, No. CA 6:11-467-TMC, 2011 WL 5082230 (D.S.C. Oct. 26, 2011) (“Moreover, the lack of allegations specifying Plaintiff's race and/or showing that only those of his same race are subjected to the [applicable] policy indicate that no viable equal-protection claim under the Fourteenth Amendment is stated.” (citing Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir.2000))).
Plaintiff also fails to allege that any adverse actions plaintiff describes were taken by individuals who were acting under the color of state law. See Hill, 2021 WL 312621, at *2. Plaintiffs' conclusory assertions do not show a plausible violation of plaintiff's rights to equal protection, and fail to support a claim under § 1983. Accordingly, this claim should be dismissed.
2. Money laundering claims
Plaintiff alleges “antitrust violations and money laundering violations . . . in accordance with 31 U.S.C. § 5323 (a)(5) & (g) & (j) [and] Anti-Money Laundering Act.” [D.E. 6-1] at 3.
The Anti-Money Laundering Act of 2020 (“AMLA”) is a federal statute that, inter alia, seeks to combat money laundering and counter the financing of terrorism. See Pub. L. No. 116283, §§ 6001-6511. As relevant for claims under 31 U.S.C. § 5323, “[t]he term ‘money laundering and related financial crime' []means the movement of illicit cash or cash equivalent proceeds into, out of, or through the United States, or into, out of, or through United States financial institutions . . . [or the meaning provided under states or local criminal statutes.]” 31 U.S.C. § 5340(2).
Plaintiff explains his AMLA claim as follows:
This is money laundering because someone got paid for FAU, and it wasn't me. FAU owes me $72,000 in wages under the typical PhD program contract where funding is guaranteed for 4 years and progress is evaluated at the end of each term, not 2 weeks before finals, . . . Where did that money go? Where did my wages go? To a bank account in the Cayman Isles perhaps. I think so, and you can prove it with your federal oversight. They also blocked me from getting unemployment benefits when I was fired in 2009, and someone got that money as well.[D.E. 6-2] at 7.
Plaintiff does not explain any legal basis for the assertion he should have been “allowed to collect unemployment insurance from FAU” after he was fired from his graduate assistantship -aside from “United Nations Jamaican PhD Programme Rules,” over which this court does not have subject matter jurisdiction. [D.E. 6-2] at 9. More importantly, his claim fails to show how unclaimed unemployment benefit, or the funds he would have received from FAU had he not been dismissed from his graduate assistantship, represent “illicit cash” or otherwise fall within the scope of the AMLA or comparable money laundering regulations. See Iqbal, 556 U.S. at 678 (noting that a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s] devoid of further factual enhancement.” (quoting Twombly, 550 U.S. at 555-57 (internal quotation marks omitted))). Accordingly, these claims should be dismissed for failure to state a claim.
3. Anti-trust and anti-retaliation whistleblower protections
In his whistleblowing and retaliation claims, plaintiff alleges that he “complained to people at [FAU] and Durham Tech about potential money laundering and antitrust violations” ([D.E. 62] at 6) and was then charged with “extortion for asking for money owed to me” ([D.E. 6-2] at 9). Plaintiff also notes in discussing this incident that “[t]he aggravated part of the stalking came from the death threat, which I did utter.” [D.E. 6-2] at 9.
31 U.S.C. § 5323 is a federal statute prescribing whistleblower incentives and protections with respect to certain financial conduct. Specifically, it prohibits retaliation against whistleblowers for providing information in accordance with the section. 31 U.S.C. § 5323(g). 15 U.S.C. § 7a-3 is a federal statute that provides protection for whistleblowers in antitrust matters. To bring an action under either section, plaintiff must first file a complaint with the Secretary of Labor. See 31 U.S.C. § 5323(g)(2); 15 U.S.C. § 7a-3(b)(1). Plaintiff's pleadings fail to allege that he has exhausted this administrative remedy. As such, these claims must fail.
Additionally, the undersigned notes that under Florida law, “[t]he extortion statute prohibits . . . malicious threats to do injury to another's person.... Furthermore, the threats must be made with the intent to extort money or the intent to compel another to act or refrain from acting against his will.” Carricarte v. State, 384 So.2d 1261, 1263 (Fla. 1980) (citations omitted). Plaintiff admits in his pleading that he made a death threat ([D.E. 6-2] at 9), which constitutes a “malicious threat[] to do injury to another's person,” see Carricarte, 384 So.2d at 1263, and that he did so in the context of asking for “money,” he claims he was owed ([D.E. 6-2] at 9). Accordingly, to the extent plaintiff argues that an allegation of extortion by FAU was an unwarranted act of retaliation, the facts in plaintiff's own complaint suggest otherwise, namely that it was a legally accurate description of conduct that plaintiff himself acknowledges.
Additionally, 15 U.S.C. § 7a-3 provides anti-retaliation protections specifically in antitrust matters. See 15 U.S.C. § 7a-3 (a subchapter of 15 U.S.C. Chapter 1, which governs monopolies and combinations in restraint of trade). Providing the general context for the chapter, 15 U.S.C § 1 specifically prohibits “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C § 1 . As discussed above, plaintiff has failed to allege in any way how his dismissals and suspensions were the result of any conspiracy, and nowhere has he alleged how these actions restrained trade or commerce. Accordingly, these claims should be dismissed for failure to state a claim upon which relief can be granted.
B. Sovereign immunity
1. Defamation and libel claim against USDoEd
Plaintiff also brings claims against the USDoEd for defamation and libel, ostensibly for a USDoEd Office for Civil Rights report, which allegedly accuses him of plagiarism. [D.E. 6-2] at 1-2.
“[L]iability for the tort of defamation-which includes libel and slander-exists if there is ‘(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.'” Talbert v. United States, 932 F.2d 1064, 1066 (4th Cir. 1991) (quoting Restatement (Second) of Torts, § 558 (1977)).
“Sovereign immunity protects the United States and its agencies from all lawsuits absent a waiver of immunity.” Tillery v. U.S. Dep't of Educ., No. 8:18-CV-03256-PX, 2019 WL 3413518, at *3 (D. Md. July 29, 2019) (citing Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005)). “All waivers of sovereign immunity must be ‘strictly construed ... in favor of the sovereign.'” Welch v. United States, 409 F.3d 646, 650-51 (4th Cir. 2005) (omission in original) (quoting Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 135 L.Ed.2d 486 (1996)).
The Fourth Circuit has previously held that that USDoEd in its status as a federal agency benefits from “a presumption of immunity.” Robinson v. United States Dep't of Educ., 917 F.3d 799, 801 (4th Cir. 2019). Plaintiff, therefore, has the burden of showing that USDoEd has waived its immunity as to his claims.
The Federal Tort Claims Act (“FTCA”) “was designed primarily to remove the sovereign immunity of the United States from suits in tort.” Levin v. United States, 133 S.Ct. 1224, 1228 (2013). However, the FTCA does not waive sovereign immunity for claims of defamation or libel claims. See 28 U.S.C. § 2680(h). As such, plaintiff's claims against USDoEd are barred under § 2680(h) of the FTCA. See Talbert v. United States, 932 F.2d 1064, 1066-67 (4th Cir. 1991).
2. Eleventh Amendment claims against UNC-CH and FAU
Even if plaintiff had otherwise plausibly alleged claims, for any causes of action against UNC-CH and FAO, plaintiff is required to show how these defendants waived their sovereign immunity with respect to the claims against them.
The Eleventh Amendment limits the authority of the federal courts to hear claims against the states. U.S. Const. amend. XI (“The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”). The Supreme Court has interpreted the sovereign immunity that the Eleventh Amendment recognizes to apply to suits against a state by its own citizens. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98 (1984) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890), overruled on other grounds by statute, 42 U.S .C. § 2000d-7). A state may waive its sovereign immunity against suit in federal court, but such waiver must be unequivocally expressed. Id., 465 U.S. at 99. Similarly, while Congress may abrogate the Eleventh Amendment in legislation under the Fourteenth Amendment, an unequivocal expression of Congress's intent to do so is required. See id.
The doctrine of sovereign immunity under the Eleventh Amendment applies not only to a state itself, but also its institutions and other instrumentalities, which may include state universities. See, e.g., Huang v. Bd. of Governors of the Univ. of N.C. , 902 F.2d 1134, 1138 (4th Cir.1990); Bin Xu v. Univ. of N.C. at Charlotte (“UNCC”), Civ. No. 3:08-CV-403-DCK, 2009 WL 7216040, at *3 (W.D. N.C. 30 Sept. 2009), mem. and recomm. adopted in relevant part by 2010 WL 5067423 (6 Dec. 2010). The claims against state instrumentalities, specifically held to be covered by sovereign immunity under the Eleventh Amendment, include claims pursuant to § 1983 and § 1985, and claims for breach of contract, defamation and intentional infliction of emotional distress. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989) (§ 1983 claims); Huang, 902 F.2d at 1136-37, 1137-39 (upholding summary judgment dismissing monetary damages claims by professor for free speech and due process violations under § 1983 and § 1981; intentional infliction of mental distress; defamation; and intentional interference with contractual relations).
There is no question that UNC-CH is an instrumentality of the state of North Carolina. It was established by North Carolina as one of the institutions comprising the University of North Carolina. N.C. Gen.Stat. § 116-4.4. Similarly, while FAU may not sue or be sued in its own name, Gould v. Fla. Atl. Univ. Bd. of Trustees, No. 10-81210-CIV, 2011 WL 13227893, at *1 (S.D. Fla. June 14, 2011), the Florida Atlantic University Board of Trustees (“FAUBOT”), an entity which may be sued, “is an agency or instrumentality of the State of Florida for Eleventh Amendment immunity purposes.” Gould, 2011 WL 13227893, at *2 (citing Beaulieu v. Bd. of Trustees of Univ. of W. Fla., No. 3:07CV30-RV/EMT, 2007 WL 2900332, at *1 (N.D. Fla. Oct. 2, 2007)); Fla. Stat. § 1000.21(6)(e) (2010)).
Plaintiff has not shown or alleged that UNC or FAU have waived their respective Eleventh Amendment immunities from suit with respect to his claims in federal court or that such immunity has been abrogated by Congress. See e.g., Jennings v. Univ. of N.C. at Chapel Hill, 240 F.Supp.2d 492, 498 (M.D. N.C. 2002) (holding that Congress had not overridden Eleventh Amendment immunity in suit against UNC at Chapel Hill and other defendants except under Title VII, which plaintiff does not invoke here); Crisman v. Fla. Atl. Univ. Bd. of Trustees, 572 Fed.Appx. 946, 949 (11th Cir. 2014) (noting that FAU did not waive it Eleventh Amendment immunity with respect to Florida Age Discrimination in Employment Act claims); Debose v. Univ. of S. Fla., 178 F.Supp.3d 1258, 1267 (M.D. Fla. 2016) (“Florida's waiver of sovereign immunity found in Section 768.28 of the Florida Statutes is ‘limited to traditional torts,' and does extend to ‘constitutional torts' under 42 U.S.C. §§ 1981, 1983, 1985, & 1986.”); Beaulieu v. Bd. of Trustees of Univ. of W. Fla., No. 3:07CV30-RV/EMT, 2007 WL 2900332, at *4 (N.D. Fla. Oct. 2, 2007) (“Florida has not waived its sovereign immunity to intentional or malicious torts, including intentional and malicious libel, slander, or defamation.”).
The undersigned notes that state courts in Florida have held that universities in the Florida state system have waived their immunity to breach of contract claims. See Univ. of S. Fla. Bd. of Trustees v. Moore, 347 So.3d 545, 549 (Fla. Dist. Ct. App. 2022), review denied, No. SC22-1398, 2023 WL 105592 (Fla. Jan. 5, 2023) (“Therefore, ‘where the state has entered into a contract fairly authorized by the powers granted by general law, the defense of sovereign immunity will not protect the state from action arising from the state's breach of that contract.'” (quoting on Pan-Am Tobacco Corp. v. Dep't of Corr., 471 So.2d 4, 5 (Fla. 1984))). While certain of plaintiff's allegations could be liberally construed as a breach of contract claim against FAU - given plaintiff's failure to plead facts supporting the relevant elements of such a claim (e.g., plaintiff never denies that he did failed to take his final exam or that he failed to maintain the necessary G.P.A. to maintain the graduate assistantship, as required by the guide, which FAU asserts as the basis he lost the stipend associated with the graduate assistantship) and the other deficiencies in plaintiff's pleadings, as discussed above - the undersigned finds that such claims would fail even if plaintiff showed that FAU waived its sovereign immunity with respect to breach of contract claims.
As a comprehensive analysis of any waiver of UNC-CH and FAU's sovereign immunity is restricted by plaintiff's deficient pleadings and failure to state a claim upon which relief can be granted, the undersigned recommends plaintiff's complaint be dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii), as discussed elsewhere, rather than § 1915(e)(2)(B)(iii).
C. Deficient pleadings in remaining claims
Finally, while all of plaintiff's claims fail to provide a short and plain statement of the claim showing that plaintiff is entitled to relief, plaintiff's additional claims, not referenced above, are particularly lacking and subjects any such claims to dismissal as discussed below. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Holder v. U.S. Marshals Office, No. 5:16-CV-00145-FL, 2016 WL 3919502, at *1 (E.D. N.C. 17 May 2016) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”), mem. & recomm. adopted, 2016 WL 3920213 (July 15, 2016).
First, contrary to plaintiff's claim that “evidence will also show that the [USG] is ultimately responsible, and facilitated these ‘deals' [presumably concerning his dismissals and suspensions from colleges and universities] with known terrorists from the CIA building in Washington DC,” [(D.E. 6-2] at 1) he does not allege any specific conduct by the USG and does not seek any relief from it. See [D.E. 6-1] at 4. A claim must “offer more detail . . . than the bald statement that he has a valid claim of some type against the defendant.” Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir.2001) (internal citations omitted). Accordingly, any claims against the USG should be dismissed for deficient pleading and failure to state a claim upon which relief may be granted.
Next, plaintiff's complaint references the “Rules for Getting Kicked Out of College,” the “US treaty with the United Nations for PhD programs,” and “Rules for U.S. Navy Officer Commissions.” [D.E. 6-2] at 3. Even viewed with the utmost leniency, the undersigned is unable to discern any federal statute or constitutional provision underlying the “Rules for Getting Kicked Out of College,” or any United States treaty “with the United Nations for PhD programs.” Accordingly, this court does not have jurisdiction to adjudicate any such claims. See Bowman, 388 F.2d at 760 (“Federal courts are courts of limited jurisdiction and are empowered to act only in those specific instances authorized by Congress.”).
Next, plaintiff declares that he “also feels that the U.S. Navy should reverse its policy on Chinese gang tattoos and the decision to not let the plaintiff enroll in ROTC at UNC and award him an officer commission.” [D.E. 6-1] at 4. From the context of plaintiff's complaint, the undersigned construes plaintiff's reference to the “Rules for U.S. Navy Officer Commissions” to be the United States Navy's tattoo policy, NAVADMIN 082/16 (“[T]attoos that symbolize affiliation with gangs . . . are prohibited.”). The undersigned agrees with plaintiff's suggestion that rules governing United States Naval commissions are “out of the scope of this lawsuit, and other channels may need to be used to achieve this goal.” [D.E. 6-1] at 4. It is noted, however, that “Congress has given the Executive Branch wide latitude in determining who may be commissioned . . . in the military generally,” Smith v. Christian, 763 F.2d 1322, 1325 (11th Cir. 1985), and plaintiff has failed to show how the Navy's current tattoo policy falls outside the scope of this discretion.
Finally, plaintiff requests to receive access to various emails from certain defendants. See [D.E. 6-2] at 3 (“I request the FAU emails detailing the correspondence during the semester from the advisor and professors to Kevin Sleem, which there are none....[a]lso, the email from the professor at Durham Tech where they allege harassment.”). If any of plaintiff's claims proceeded, he would be entitled to discovery in accordance with the Federal Rules of Civil Procedure. However, the undersigned finds plaintiff's claims to be insufficient to satisfy the pleading requirements of Federal Rule of Civil Procedure 8.
The undersigned, therefore, concludes that plaintiff's complaint fails to state a claim upon which relief may be granted and recommends that this case also be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that plaintiff's complaint be DISMISSED in its entirety as frivolous and for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii).
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until April 7, 2023 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar plaintiff from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).