UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA SAMUEL H. MWABIRA-SIMERA, ) ) P laintif f, ) ) v. ) Civil Action No. 05-441 (R WR) ) HOWARD UNIVERSITY et al., ) ) Defendan ts. )

MEMORAN DUM OP INION Plaintiff Samuel H. Mwabira -Simera f iled a pro se discrimination complaint ag ainst Howar d University

and thre e individuals, Patrick Swyg ert, for mer Preside nt of the Univer sity , Orlando Ta

ylor, dea n of the Unive rsity ’s g raduate school, and Er rol Noel, prof

essor a nd chair of the Univer sity ’s depa

rtment of civil eng ineer ing a nd also Mwabira -Simera’ s aca demic program advisor. The University

has moved post-discove ry for summary

judgme nt. Be cause there are no materia l fac ts in disput e and the University is entitled to judgment as a matter of la

w, the University ’s motion will be gr anted, a nd all other pe nding motions will be denied a s moot. BA CKGROUND Mwabira -Simera, a

Ug andan ma le who wa s a torture victim in Uga nda and suf

fer s from related post-traumatic stress disorder (“PTSD”) , matriculate d in the University ’s civil eng ineer ing pr og ram for

one seme ster in Spring 1997, and then a g ain for f our semeste rs from Spring 2000 through Fa ll 2001. Defs.’ Mot. for Summ. J . (“D efs.’ Mot.”), De fs.’ Stmt. of Materia l Undisputed Fa cts (“SMUF ”) ¶ ¶ 4-5. I n J anuar y 2002, Taylor, in his role as dea n of the g raduate school, sent a le tter dismissing Mwabira -Simera f or poor a cade mic perf

ormanc e. Id. ,- 2 -

Ex . 24, Dec l. of Orlando L . Taylor (Aug . 17, 2007) (“ Taylor Dec l.”) ¶ 15 & Ex . B. MwabiraSimera conte nds he wa s dismis sed as a result of unlaw ful discrimination. Specifica lly , he alleg es national orig in and disability discrimination, a hostile environment, and r etaliation, and he asser ts claims under T itles VIand VI I of the Civil Ri g hts Act of 1964, 42 U.S.C. §§ 2000d et seq. and 1 2000e et seq., Title I X of the Educ ation Amendments of 1972, 20 U.S.C. § 1681 et seq. , and Title I Iof the Ame rica

ns Wi th Disabiliti es Ac t (“AD A”) , 42 U.S.C. § 12131 et seq . See Am. Compl. ¶¶ 11- 45. In addition, the amende d complaint mentions in passing § 504 of the Rehabilitation Act of 1973, 29 U .S.C. § 794 et seq. , and purpor ts to assert claims under

the Administrative Procedur e Ac t (“APA” ), 5 U.S.C. §701 et seq ., and the Due Process Clause of the Fif th Amendment. See Am. Compl.¶ 49. I t also asserts a n “abuse of proc ess” c laim, but is unclear whether this is i ntended a s part of the constitutional claim or as an inde pendent c ommon law claim. See id. ¶¶ 46- 48. In an abunda nce of caution, it will be analy

zed as both. Mwabira

Simera see ks $5 mill ion in compensatory damag es and $15 million in punit ive damag es. Id. at 20-21. 2

Mwabira -Simera a

nd the Univer sity

have not ha d an employ ee- employ er r elationship 1 since 2001 or e arlier . SUMF ¶ 18. Although Mw abira -Simera c ontends in his opposit ion that he also alleg ed violations of 2 Title Iof the AD A, 42 U.S.C. § 12112 et seq. , violations of 42 U.S.C. §§ 1981 and 1983, and two criminal statutes, see Opp’n at 5, in fact, his amende d complaint contains no such alleg ations. At the very

most, the amended c omplaint states that “Def endant is re sponsible under law for all acts [under c olor of state la w] performe d by

Def endants . . . by

virtue of the doc trine of respondeat superior . . . .” Am. Compl. at 17. Even under the libera l pleadingstandard acc orded a pro se plaintiff, see H aines v. Kerne r , 404 U.S. 519, 520 (1972), this single use of the phrase “under

color of state law” in this contex t does not provide ade quate notice to the University

that Mwabira -Simera mea ns to alleg e a violation of 42 U .S.C. § 1983. I n any event, a claim broug ht under § 1983 a g ainst a non-g overnme ntal entity fails to state a c laim upon which relief may be g rante d. Be cause the def endant wa s not on notice of these claims prior to completing discovery , the claims Mwabir a-Simera mentions in his oppos ition that he did not set- 3 -

Despite the le ng thy

submissi ons on rec ord, the mate rial fa cts are relatively fewand not in g enuine dispute. The University ’s g raduate school has published rule s and re g ulations, one of which mandates that a student be dr opped fr om a cour se of study when he or she r ece ives more than nine cr edit hours of g rade s C or below. De fs.’ Mot., SMUF ¶ 6- 7 & E x . 1 at 11. I t also provides that a pr og ram’s “ g radua te fa culty can r ecommend the dismiss al of a student who demonstrates a

n inability

to perfor m satisfactorily

at the graduate level. Id. In a total of four semester s of cour se work, Mw abira -Simera e arne d five C’s and one D, but some of the g rade s

wer e aw arde d late bec ause he did not complete and submit the work dur ing the course term. Id., SMUF ¶¶ 21-30, 36-40 ( ear

ning one C for a c ourse take n in Spring 1997, two C’s and one D for

course s taken in F all 2000, and two C’s for course s taken in Spring 2001). Mwabir a-Simera proposed a

thesis project that his ac ademic a dvisor, Noel, disapprove d as not within the sphere of either the advisor’s e x pertise or the student’s cour se of study , flawe d in its design and not advisable in lig ht of the student’s pre paration in mathematics. Id., SMUF ¶¶ 44- 47. After Mwabira -Simera infor

med the assoc iate dea

n of the g raduate school that he ha d asked a junior fac ulty member f

rom a diff

ere nt university

to chair his thesis committee on the disappr oved thesis project, the a ssociate de an aske d the g raduate fa culty of the c ivil engine eringdepar tment to make a rec ommendation on how to proce ed with Mwabira -Simera’ s matriculation in the prog ram. Id., SMUF ¶¶ 67- 71. On Novembe r 19, 2001, the c ivil engine eringprog ram g raduate fac ulty committee re commended that Mwabira- Simera be dismissed due to his “sustained unsatisfac tory

aca demic per formanc e” a nd his unwilli ng ness to follow the advic e of his ac ademic prog ram a dvisor. Id., SMUF ¶¶ 72- 73. Taylor, afte r re viewingthe re cord a nd concur ringwith

forth in his amende d complaint will not be considere d.- 4 -

the g raduate fa culty ’s re commendation, notified Mwa bira-Simera

by letter dated J anuar

y 25, 2002, that he wa s no longe r elig ible to pursue his course of study in the civil eng ineer ing g raduate program. Id., SMUF ¶¶ 79, 81- 84. In its entirety , that letter stated

This is to i nform you that a re view of y our ac ademic r ecor d reve aled dur ing your tenure in the Gra duate School you have acc umulated an e x cess of five (5) g rade s below B . The Gr aduate School regulation[ ] st ates that: “A student will be droppe d when he or she r ece ives more than nine (9) hour s of “C” or a “C” g rade in more than two ( 2) cour ses wher e at lea st one of the course s is for four ( 4) or more cre dits and where the total cre dit hours of “C” is g rea ter than nine (9) hours.” (See The Gra duate School of A rts and Scienc es, Rules and Regulations for the Pursuit of Aca demic Deg ree s, Section 2. Grade s and Ac ademic Status.) There fore , in keepingwith Graduate School Reg ulations, Iam writing to inform y ou that y ou are no longe r elig ible to pursue further study in the Gra duate School. Iwish y ou succe ss in y our future endea vors. Id. , Taylor Dec l. ¶ 15 & Ex . B. The notifica tion letter was se nt cer

tified mail return r ece ipt reque sted, and wa s rec eived a nd signe d for by

him on or befor e F ebrua

ry 5, 2002. Id., Taylor Dec l. ¶ 16 & Ex . C. Although it is undisputed that Mwabira -Simera a ppeale d his dismi ssal throug h the University ’s g rieva

nce sy stem and soug ht rea dmission t o the g raduate prog ram, ther e is no evidenc e in the re cord that Mwabira- Simera filed a n administrative claim of discr imination with either the U.S. Equal Employ ment Opportunity

Commi ssion (“EEOC”) or the District of- 5 -

Columbi a’s Of

fice of Human Rights (“DCOHR”) as a r esult of the Univer sity ’s ac tion. On Fe bruar y 4, 2005, the cler

k of cour t rec eived the pla intiff’s pro se complaint for f iling. DI SCUS SI ON Where a defe ndant cha lleng es an a sserted c laim beca use it fails to state a c laim upon which re lief may

be g rante d, and matter s outside the pleading s have be en pre sented to and not excluded by

the cour t, the motion is trea

ted as one for summary

judgme nt. See Fe d. R. Civ. P

. 12(d). A motion for summar y judgme nt must be gr anted if the pleading s and evide nce on f ile show that there is no ge nuine issue of mate rial fa ct, and that the movingparty is entitled to judgme nt as a matter

of law. F ed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, I nc., 477 U.S. 242, 247 (1986). In consideringwhether there is a triable issue of

fac t, a cour

t must draw all

rea sonable infe renc es in favor of the non-movingparty

. Liberty Lobby, 477 U.S. at 255. The party opposing a

motion for summary

judgme nt, however , “may not rely mere ly on alleg ations or denials in its own pleading ; rather , its response must . . . set out specific f acts showing

a g enuine issue for tria l[ ,]” Fed. R. Civ. P. 56(e)(2) , that would permit a re asonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 ( D.C. Cir. 1987). The non-movingparty must do more than simply

“show that ther e is some metaphy sical doubt as to the mater ial fac ts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586 (1986). More over, a ny fac tual asser

tions in t he movant’s a ffidavits will be ac cepte d as beingtrue unless the opposing party submits hi s own aff

idavits or other doc umentary evidenc e contr adictingthe asser tion. Neal v. Kelly, 963 F.2d 453, 456 ( D.C. Cir.1992). As an initial matter, seve ral of the claims asser ted must be dismissed because they are patently inapplicable on the fac ts presente d and ther efor e fa il to st ate a claim upon which r elief- 6 -

may be g rante d. Neither

the Univer sity , which is a private educ ational institut ion, nor any of the individual defenda

nts are subje ct to suit under the APA, Title I Iof the AD A, or the D ue Proce ss Clause of the F ifth Amendment. The A PA applies only to ag encie s of the fe dera l gove rnment. See 5 U.S.C. §§ 701(b)(1) ( “‘a g ency ’ mea ns eac h authority

of the Gove rnment of the United States,”) a

nd 704 (providingfor judicial r eview of “fina l ag ency

action”) . Title I Iof the AD A applies only

to “public entities,” whic h is ex pressly define d to include only

“(A ) any state or local g overnme nt; (B) any depar tment, ag ency , or spec ial-purpose district, or other instrumentality

of the state or

states or loca l gove rnment; and (C) the National Railroad Passeng er Corpor ation, and any commuter a

uthority [as defined e lsewher e].” 42 U.S.C. § 12131. The F ifth Amendment’s Due Process Clause a pplies only

to the actions of a g ents of the f eder al g overnme nt (and the F ourtee nth Amendment’s Due Process Clause a pplies only

to the actions of ag ents of state g overnme nts and municipalities). Acc ording ly , as the de fenda nts in thi s suit are not proper de fenda

nts, the claims asser

ted under the APA, Title I I

of the AD A and the D ue Process Clause, inc luding a ny intended alleg ation of a c onstitut ional abuse of proce ss, must be dismiss ed bec ause the y

fail to state a c laim upon which re lief may be g rante d. A common law c laim for abuse of proc ess is also inapplicable in this ca se. Such a c laim arises when one pa

rty has misused or per

verte d the cour

t sy stem ag ainst another. Geier v

. Jordan , 107 A.2d 440, 441 (D.C. 1954) ( distinguishing the tort of abuse of proc ess from the tor t of malicious prosec ution). Here , the def endants did not invoke the c ourt sy stem at all in their dealing s with Mwabira- Simera, let alone perve rt it. There fore , Mwabira -Simera c annot maintain a common law a

buse of pr ocess c laim ag ainst any of the de fenda

nts.- 7 -

In addition, none of the individual def endants is subject to suit under a ny of the antidiscrimination statutes asserte d. “[T] he text of Title VI[of the Civi l Rights Act of 1964] . . . prec ludes liability

ag ainst . . . individuals.” Shotz v. City of Plantat ion, Fla., 344 F.3d 1161, 1169-70; see also Goone wardena v. New Y ork, 475 F. Supp. 2d 310, 328 (S.D.N.Y. 2007) (“Title VI claims ca nnot be asser

ted ag ainst an individual defe ndant[.] ”). Similarly , “Title VI Idoes not impose liabilit y

on individuals in t heir pe rsonal ca pacity .” Cruz-Packe r v. District of Columbia , 539 F. Supp. 2d 181, 185 (D.D .C. 2008) (citing Gary v . Long, 59 F.3d 1391, 1399 ( D.C. Cir. 1995)). “ Claims under section 504 of the Rehabilitation Act of 1973 . . . ag ainst individuals in the individual capa city

are fore closed[,] ” and “ [i ]ndi viduals are not proper de fenda nts under Title I X.” Goonewardena, 475 F. Supp. 2d at 327 , 330. There fore , the three individual defe ndants will be dismissed from this lawsuit because the plaintiff has not a sserted c laims as to them upon which re lief may be g rante d. Mwabira -Simera a lso has not stated a c laim upon which re lief may be g rante d under Title I X ag ainst the University . Title IX provides that “ [n] o persons in the United States sha ll, on the basis of sex, be excluded from pa rticipation in, be denie d the bene fits of, or be subje cted to discrimination under a

ny educa tion prog ram or a ctivity

rec eiving Fe dera l financia l assistance.” 20 U.S.C. § 1681(a). Title IX does not addr ess ra ce or disability discrimination, which ar e the only ty pes of discr imination the plaintiff alleg es in his amended c omplaint or attempts to support in his subsequent submissi ons on the rec ord. Ther efor e, the Title IX claim will be dismissed beca use it also does not state a c laim upon which re lief may be g rante d. The Unive rsity

has ra ised the statute of limitations affirmative defe nse, ar g uing tha t all of the discrimination claims are time-barr ed. Where a fe dera l statute does not specify a per iod of- 8 -

limit ation afte r which a

claim is time-barr ed, fe dera l law re quires apply ing the local statute of limit ation for the most-a

nalog ous injury

. See W

ilson v. Garcia, 471 U.S. 261 (1985) (a pproving analog izi nga § 1983 cla im as one for persona l injury

and apply

ing the local statute of limitation). Under District of Columbia law, a violation of a fede ral a nti-discrimination law is subject to the three -y ear limit ation period a

pplicable to a c laim for per sonal injury

. See D.C. Code 12-301(8)

. Thus, all of the fe dera l discrimination claims asserted in the a mended c omplaint are subjec t to dismiss al if not broug ht within three y ear s of the ac crua l of the alleg ed injury

. See R ichards v. DukeUniv. , 480 F. Supp. 2d 222, 238 (D.D .C. 2007) (Title VI and Title IX); Long v. Howard Univ., 512 F Supp. 2d 1, 11-12 (D .D.C. 2007) (Reha bilitation Act and ADA) . Although T itle VI Iclaims have the same statutory three -year

limit ation period, they

have a n eff ective limitation period that is fa

r shorter beca use fe dera l law re quired Mwa bira-Simera

to file an a dminist rative char g e of discr imination withi n 300 day s of the time he kne w of the University ’s adve rse a ction. 42 U.S.C. § 20003-5(e)( 1); Akonji v. Unity H ealth Care, Inc. , 517 F. Supp. 2d 83, 90-91 (D .D.C. 2007). I f that 300-da

y deadline is missed, a pla intiff has no re course under Title VI Iin fede ral court. See I

weala v. Ope rational T

echnologies Se rvs., Inc ., 634 F. Supp. 2d 73, 81 (D.D .C. 2009). Title VI Iapplies only to employ ers. See42 U.S.C. § 2000e-2 (a ) (“ I t shall be an unlaw ful employ ment prac tice for

an employer . . . .” ). Mwabir a-Simera ’s re lationship to t he Univer sity as an employ ee e nded in 2001 at the late st. Defs.’ Mot., SMUF ¶ 18. Any claims he bring s under Title VI Iare thus now time-barr ed. The University also asser

ts that Mwabira- Simera did not exhaust his admini strative re medies prior to filingsuit. There is no evide nce in the r ecor d that Mwabira -Simera e x hausted his administrative re medies as Title VI Irequire s. Although- 9 -

Mwabira -Simera plea ds that he exhausted his administrative reme dies, and states that documentar

y proof of havingdone so is appende d to his amended c omplaint, see Am. Compl. at 6 & App., no documenta ry proof of exhausting an a dminist rative c omplaint is any wher e to be found in this volumi nous rec ord. The University has filed a

decla ration af firming that the “Univer sity

has no re cord of

rec eiving a Notice of any Charg e of discrimination filed by Mr. Mwabira -Simera with the EEO C ag ainst the University relating to any

of the c laims asserted by Mr. Mwabira -Simera in this liti g ation.” De fs.’ Mot., Ex. 31, Decl. of L eroy T. J enkins, J r., Esq. (Aug . 22, 2007) ¶¶

3-5. I f Mwabir a-Simera

had filed a

discrimination char g e with either the EEOC or the DCOH R, the University would have r ece ived a Notice of Charg e, bec ause “ [u] nder a for mal work-sha

ringag ree ment, filing a

formal c harg e with the EEOC satisfies a ny require ment to file a for

mal char g e with the District’s OH R, and vice- versa .” Cruz-Packe r, 539 F. Supp. 2d at 189. Ac cording ly , on this recor d, there is no dispute about the materia l fac t that Mwabira -Simera did not exhaust his adminis trative re medies bef ore f iling suit, and the University

is entitled to summ ary

judgme nt on the Title VI Iclaims. The Unive rsity

argues that all of the othe r discrimination claims ar e time-ba rre d by the statutory three -year

limit ations period. Its argument is based on the mistaken impre ssion that Mwabira -Simera f

iled his complaint on March 2, 2005. When a pro se plaintiff submits an application to proc eed in forma pauperis alongwith the complaint , the openingof the c ase is delayed until the application is approve d. There fore , the date on which the complaint wa s

rec eived by

the cler k of cour t for filingis the critical f iling date for statute of

limit ations purposes. In this case, Mwa bira-Simera

submitt ed his complaint to the cler k of cour t for filing on Fe bruar

y 4, 2005. Be cause the re cord e vidence establishes that Mwabir a-Simera lear ned of- 10 -

his dismi ssal by

letter fr om the University , and that Mwa bira-Simera

had re ceive d the letter by Fe bruar y 5, 2002, he had thr ee year s, until Februa ry 4, 2005, to file his complaint. Thus, his filing of the complaint was timely as to his dismi ssal. Causes of a ction arisingfrom any other a ct of discrimination alleg ed to have occur red in the months or y ear s prec edinghis rece ipt on Fe bruar y 5, 2002, of the letter

notifying him that he w as dismissed are time-barr ed. F urthermor e, the Univer sity ’s re fusal to re verse or alter its decision in the after

math of its dismi ssal notification is not what trig g ers the limitations period. Delaware State College v . Ricks, 449 U.S. 250, 261 (1980) ( “The exis tence of ca ref ul proce dures to assur e fa irness . . . should not obscure the principle that limi tations periods normally commence when the . . . de cision is made.”)

. At this point , then, only

the Title VI

and Reha bilitation Act claims ag ainst the University

3

rema in, and their surviva l depends in the fir st instance on showingthat the dismissal was the result of unlaw ful discrimination. To defe at the Univer sity ’s explanation that it dis missed him for a n unsatisfac tory

aca demic per formanc e, Mwa bira-Simera

must “prove by

a pre pondera

nce of the evidenc e that the leg itimate rea son[] offe red by the def endant [was] not it s true re ason[] , but [was] a pre text for discr imination.” Texas De p’t of Cmty. Affairs v. Burdine , 450 U.S. 248, 253

Even unde r a g ener ous rea ding of the complaint and the subse quent submissions by 3 Mwabira -Simera, it does not appe ar that he alleg es any disability discrimination after

the 2000- 2001 aca demic y ear . On this basis, then, the University would be entitled to judg ment as a matter of la

w bec ause c laims arising from ac ts occurr ing be fore Fe bruar y 4, 2002 are timebarr ed. Howe ver, in a

n abundanc e of c aution, the disability claims will be ana ly

zed as if Mwabira -Simera ha d straig htforwa rdly alleg ed that his dismissal was retaliation for some protec ted ac tivity

or the c ulminating ac t of a ser ies of eve nts constituti ng a hostile environment related to his alleg ed disability

. See Nat’l R.R. Passe nger Corp. v. Morgan, 536 U.S. 101, 122 (2002) ( “A c harg e alleg ing a hostile work environme nt claim, howeve r, will not be time barr ed so long a s all acts which c onstitut e the c laim are part of the same unlaw ful employ ment prac tice and at lea st one ac t falls within the time period.”). T he Court expressly does not rea ch the question of whethe r the a lleg ed disability is a disability

for pur poses of the Reha

bilitation Act.- 11 -

(1981). “ At that point, the plaintiff can sur vive summary

judgme nt only

by showing that a

rea sonable jury

could conc lude that he wa s terminated f or a discr iminatory

rea son.” Jack

son v. Gonzales, 496 F.3d 703, 707 ( D.C. Cir. 2007). On this recor d, no rea sonable jury could conc lude that Mwabira -Simera wa s terminated f or either his national orig in or his PTS D as opposed to havingear

ned more g rade s below “B ” than the University ’s g raduate school re gulations permitted. Mwabir a-Simera has not submitted any

evidenc e to show that his aca demic perf ormanc e wa s mere pr etext for unlawful discr imination, nor has he submitted any evidenc e to show that he wa s treate d differ ently than others similarly

situated. Acc ording ly , his discrimination claims cannot survive summary judgme nt. CONCL USI ON For the re asons stated, the University ’s motion will be gr anted, a ll other pendingmotions will be denied a s moot, and judgme nt will be awar ded to the Univer sity

. A sepa rate order acc ompanies this memorandum opinion. SI GNED this10th day

of Mar ch, 2010.

/s/

RI CHARD W. R OB ERTS United States District J udg e