Pro se plaintiff Alex Manalov is a former student who was enrolled in the nursing program at Borough of Manhattan Community College (“BMCC”) during the 2011-12 academic year. Plaintiff alleges that BMCC’s nursing program was deficient for a number of reasons, including that his professors improperly prepared students for exams, treated him poorly, administered and graded exams in an unfair and arbitrary way, and generally were inadequate. Plaintiff also alleges that two of his professors “blatantly discriminated against all white males,” including Manalov, and as a result “all white males ... failed the semester.” Plaintiff further alleges that the professors created an “adverse education environment,” that he “felt the hostility of the professors towards him because of his sex,” and there was “no reasonable motivation” for the professors’ actions “other than [their] personal dislike and hatred towards [sic] this particular group of students.”
Plaintiff claims that he made numerous complaints about the inadequacies and deficiencies of the nursing program to Defendant, but Defendant failed to remedy the problems. Plaintiff alleges that as a result of his professors’ actions and Defendant’s failure to remedy his complaints, he failed his Fall 2011 semester final exams. Plaintiff contends that he then had significant difficulty enrolling in the nursing program for the Spring 2012 semester and ultimately was forced to withdraw from the program. Plaintiff alleges that as a result of these deficiencies in the nursing program, Defendant (1) discriminated against him on the basis of race and gender; (2) violated his Fourteenth Amendment due process rights; (3) breached its contract with him; and (4) negligently- supervised several BMCC professors.
Defendant moves to dismiss Plaintiffs’ complaint pursuant to Fed.R.Civ.P. 12(b)(6). This Court referred the matter to Magistrate Judge Frank Maas for his Report and Recommendation (“Report”). Magistrate Judge Maas recommended that Defendant’s motion to dismiss be granted.
The Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. 28 U.S.C. § 636(b)(1). When there are objections to the Report, the Court must make a de novo determination of those portions of the Report to which objections are made. Id.; see also Rivera v. Barnhart,
Magistrate Judge Maas properly determined that Plaintiff has not stated a Title VI or Title IX discrimination claim. Plaintiff has not stated any facts from which one could infer any discriminatory intent or motivation with respect to race or gender on the part of Defendant. Nowhere in Plaintiffs complaint or opposition to Defendant’s motion to dismiss does Plaintiff allege that Defendant referred to his race or gender. Plaintiffs conclusory allegations that inter alia, his professors “blatantly discriminated against all white males,” and that “he felt the hostility of his professors towards him because of his sex,” are insufficient to allege a cause of action.
Magistrate Judge Maas properly determined that Plaintiff has not stated a Section 1983 claim for violation of the Fourteenth Amendment. Plaintiff has not alleged any facts suggesting that Defendant deprived him of any cognizable property or liberty interest. See McKithen v. Brown,
Magistrate Judge Maas also properly determined that this Court should decline supplemental jurisdiction over Plaintiffs remaining state law claims for breach of contract and negligent supervision. A district court “may decline to exercise supplemental jurisdiction ... if ... the district court has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Such an exercise of discretion is appropriate here, where the Court has not invested any appreciable time in this case. See Brzak v. United Nations,
CONCLUSION
Defendant’s motion to dismiss Plaintiffs complaint is GRANTED. The Clerk of the Court is directed to close this case.
SO ORDERED.
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B. DANIELS
Plaintiff Alex M. Manolov (“Manolov”), a former nursing student at Borough of Manhattan Community College (“BMCC” or the “College”), brings this pro se action, alleging that BMCC: (a) discriminated against him on the basis of race and gender; (b) violated the Fourteenth Amendment by depriving him of his property
I. Background
The following facts are derived from Manolov’s papers, presented in the light most favorable to him and, for present purposes, assumed to be true.
A. Facts
During the 2011-2012 academic year, Manolov was a student enrolled in BMCC’s nursing program. He failed a fall 2011 semester final exam, allegedly because of the shortcomings of certain BMCC professors, including their (1) failure to cover material appearing on the exam, (2) failure to schedule reviews sufficiently in advance of the exam, and (3) provision of inadequate time to complete the exam. (See Compl. ¶ III.C & Compl. Attach. (“Attach.”) at 1-3).
Rather than preparing the nursing students for the exams, Professor White “routinely spen[t] 30 minutes arguing with the class,” then would briefly cover the chapter and instruct the students to “read the book [to] figure out” the answers for themselves. (Attach, at 1). The pediatrics professor further failed to distribute Power-Points of her classroom lectures which, in any event, were merely repeats of lectures that had been given for many years. (Id.).
Manolov and several of his classmates complained to members of BMCC’s Nursing Department about these practices, requested that the Department investigate the matter, and specifically asked that another professor compose questions for the final exam. (Id.). Several students in the College’s day nursing program further complained that Professor White had acted in an unprofessional and dangerous manner toward hospital patients. (Id.). These complaints and requests, however, were ignored. (Id.).
The nursing program exams also suffered from many deficiencies. On the first pediatrics exam, for example, the multiple choice questions did not include an option to select more than one answer, even though more than one answer often was correct. (Id.). Manolov answered all of these questions incorrectly because there was no instruction to “select all that apply.” (Id.) (block capitalization omitted). The medical-surgical exams similarly were replete with typos, inaccurate statements, and incorrect answer choices. (Id.). The third exam of the fall 2011 semester further was cut short, resulting in the students being afforded fifteen minutes less than the allotted time. Rather than addressing this issue, the professor “tried to blame the class for not monitoring the time.” (Id.). Because of the shortened time frame, Manolov was unable to finish answering the questions or double check his previous answers. (Id.). In response to what had occurred, the professor offered students a choice between two options: to receive either two additional points for the exam or an extra ten minutes to complete the final exam. (Id. at 2).
Professor Boyle also awarded and subtracted points on the pediatrics exam “arbitrarily” and “without explanation.” (Id. at 1). Some students received credit for questions to which Manolov provided similar responses, but received no credit. (Id. at 2). Indeed, Professor Boyle checked his exam by hand and marked his correct answers (and those of other white males) as incorrect. (EOF No. 19 (Pl.’s Mem. in Opp. to Defi’s Mot. to Dismiss the Compl. (“Opp. Mem.”)) at 2). Upon discovering errors on the Scantron sheet used to grade his exam, Manolov spoke to Professor Boyle, but she refused to give him credit for the correct answers. (Attach, at 2). Instead, the professor told Manolov that she did not like him or his attitude, noting that if she awarded him additional points, “she would have to give points to everyone else” as well. (Id.). Manolov (and allegedly other students) believe that students were passed based on the professors’ “personal preferences,” rather than academic achievement. (Id.).
Manolov had been recognized in the past for high academic achievement by the dean of BMCC’s Nursing Department, yet he failed the fall 2011 semester final exam. (Id.).
Rather than reviewing the results of the final exam before the last day of classes for the semester, as the BMCC nursing program syllabus indicates “should” occur, at least one professor delayed until the first week of the spring 2012 semester. (Attach, at 3). By then, however, it would have been impossible to correct grading errors on the students’ exams and permit them to advance in the nursing program. (Id.). A number of nursing students had requested that the exams be reviewed at an earlier date, but those requests were ignored. (Id.). Manolov himself wrote letters to a “CUNY lawyer,” BMCC’s Dean of Nursing, and a “CUNY counsel- or,” asking that they review the problems associated with the fall 2011 semester exams, but received no response. (Id.). Manolov also spoke to the dean personally about the scheduling issue and grading problems, but was told nothing could be done. (Id.). During that conversation, he asked the dean whether it is normál for half of a class to fail; the dean replied that “the [department was recommended to decrease the number of nursing students.” (Id.), In sum, despite “numerous complaints” that were brought up and down the College’s “administrative ladder,” BMCC failed to remedy the problems brought to its attention. (Opp. Mem. at 3).
Even after Manolov spoke with the head of the Nursing Department and was permitted to re-enroll in classes, Professor Boyle continued to make his life “unbearable.” (Id.). Specifically, she required Manolov to submit “unnecessary paperwork” and repeatedly threatened to remove him from the nursing program. (Compl. ¶ III.C & Attach, at 3). Professor Boyle accused Manolov of missing the first spring 2012 math exam, even though students were allowed to take the test three times, and she herself had allowed Manolov to retake a fall 2011 semester exam that he had missed. (Attach, at 3). Professor Boyle further criticized Manolov for missing the first clinical day, despite the fact that “security issues” had prevented students from visiting the hospital that day. (Id.). Professor Boyle also removed Manolov’s educational records from the pediatrics class online repository and prevented him from accessing required reading materials for the class, even though other students had access to those materials. (Id.). Manolov thus was unable to learn the results of his math exam. (Id.). Boyle also demanded that Manolov submit his original name change form, intimating that he may have forged his signature, and required that he submit numerous duplicates of immunization forms already in BMCC’s files. (Id. at 4). Boyle’s actions caused Manolov significant stress. (Id.). Ultimately, he was forced to withdraw from the nursing program for the spring 2012 semester because he knew he could not pass the class with Professor Boyle as the instructor. (Id.).
B. Procedural History
On March 14, 2012, Manolov commenced this action by submitting his Complaint to the Court’s Pro Se Office. (See Compl. at 1). On April 11, 2012, the case was reassigned to Your Honor, (ECF No. 5), after which it was referred to me for general pretrial supervision and to report and recommend regarding dispositive motions. (ECF No. 7). BMCC then filed its motion to dismiss on June 22, 2012. (ECF Nos. 14-16). Manolov filed his opposition papers on July 10, 2012. (ECF No. 18 & Opp. Mem.).
II. Discussion
A. Standard of Review
A Rule 12(b)(6) motion to dismiss for failure to state a claim upon which
To survive a Rule 12(b)(6) motion, the complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Twombly,
Because Manolov is proceeding pro se, the Court must read his pleadings “liberally” and interpret them “to raise the strongest arguments” that they may suggest. Chavis v. Chappius,
B. Discrimination Claims
As his opposition papers explain, Manolov seeks to assert claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (“Title VI”), and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”). (See Opp. Mem. at 4). Title VI provides 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.” Title IX prohibits discrimination on the basis of gender, and states, in pertinent part, 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.”
To state a claim under Title VI, a plaintiff must allege, inter alia, (1) that the defendant discriminated against him on the basis of race; (2) that that discrimination was intentional; and (3) that discrimination was a substantial and motivating factor for the defendant’s actions. See Tolbert v. Queens Coll.,
“A plaintiff alleging racial or gender discrimination by a university must do more than recite conclusory assertions. In order to survive a motion to dismiss, the plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent.” Yusuf,
In his Complaint, Manolov has not stated any facts from which one could infer discriminatory intent or motivation on the part of BMCC. Although Manolov contends that “[t]he facts alleged in the complaint clearly show that the College violated both” Title VI and Title IX, (Opp. Mem. at 4), the vast majority of the statements in both his Complaint and his Memorandum of Law are conclusory, rather than factual, allegations. For example, Manolov alleges that his professors “blatantly discriminated against all white males,” “intentionally treated all white males, including plaintiff, in an adverse manner by maliciously downgrading their exams,” and that this “blatant mistreatment amounted to an objective hostility.” (Opp. Mem. at 2, 4-5). Manolov further alleges that the professors created an “adverse education environment,” that he “felt the hostility of the professors towards him because of his sex,” and there was “no reasonable motivation” for the professors’ actions “other than [their] personal dislike and hatred towards [sic] this particular group of students.” (Id. at 5).
These “threadbare recitals” and conclusory allegations of discrimination are insufficient to establish liability. Iqbal, 556 U.S. at 678,
Similarly, although he makes the assertion that BMCC professors “intentionally treated all white males ... in an adverse manner .by maliciously downgrading their exams,” Manolov has failed to allege any facts suggesting that he or other white males were treated differently than other students. Indeed, 'Manolov’s factual allegations concern his professors’ practices of “habitually start[ing] classes late,” “starting] exams late,” “eut[ting] exams short,” failing to “provide education materials,” “handling] out exams containing typos,” and “instruct[ing] students not to study specific topics for exams and ask[ing] questions about those very topics.” (Opp. Mem. at 2-3). On their face, there is no suggestion that-these alleged errors and omissions were limited in impact to a specific subset of nursing students. Accordingly, they cannot provide the basis for a discrimination claim. See Scaggs,
In any event, even if Manolov adequately had pleaded discrimination, his apparent failure to notify BMCC officials of the alleged discrimination still would be fatal to his Title VI and Title IX claims. In his Complaint, Manolov alleges that he wrote “letters to the CUNY lawyer, the Dean of Nursing and CUNY Counselor” and “saw the Dean personally.” (Attach, at 3). Noticeably absent, however,’ is any suggestion that any of these communications related to alleged discrimination based on his race or gender. Rather, Manolov states that his letters to, and conversation with, the dean concerned “mov[ing] the review to [an] earlier date,” as well as Manolov’s belief that a high percentage of students were failing the nursing exams. (Id.).
Without a showing that Manolov’s complaints to BMCC officials referenced alleged racial or sexual discrimination, and not merely generic perceived teaching failures, the College cannot be charged with notice of an alleged violation of Title VI or IX. See Goonewardena v. New York,
C. Due Process Claim
Manolov further claims that BMCC violated his Fourteenth Amendment right not to be deprived of property without due process. , Specifically, Manolov alleges that he has a property interest in pursuing an education and that, by “twice discharging him] from the class, which was required for [] continuation of his education,” without giving him a “valid reason” or “any sort of administrative hearing,” the College deprived him of that property interest, thereby violating his constitutional rights. (Opp. Mem. at 6).
The Due Process Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property without due process of law.” U.S. Const. Amend. XIV. Although Manolov does not expressly refer to 42 U.S.C. § 1983 (“Section 1983”) in his Complaint, that is the “proper statutory vehicle by which plaintiff could bring” this claim. Goonewardena,
Recognizing this procedural point, BMCC contends that the City University of New York (“CUNY”) is the proper defendant in this case. (ECF No. 15 at 1 n. 1). The defendant’s position is not surprising, as CUNY is immune from Section 1983 claims under the Eleventh Amendment, because its central administration is an arm of the state. See Goonewardena,
To establish a procedural due process claim, a plaintiff first must show that he was deprived of a liberty or property interest. Bd. of Regents of State Colls, v. Roth,
Under New York law, the “implied contract” between a college and its students gives rise to a constitutionally-protected property interest. Oladokun v. Ryan, No. 06 Civ. 2330(KMW), 2007, WL 3125317, at *4 (S.D.N.Y. Oct. 23, 2007) (citing Branum v. Clark,
'Moreover, although Manolov contends that he later “had to drop” his nursing classes in the spring 2012 semester, (Attach. at 4), he does not allege that BMCC prevented him from continuing in the program. To the contrary, he voluntarily withdrew because he believed he could not pass the nursing class if Professor Boyle was teaching it. (Id.). Manolov therefore does not appear to have adequately pleaded that BMCC deprived him of the right to attend classes.
Liberally construed, Manolov’s papers could’ be read to allege that he was “constructively dismissed” from the nursing program. See Smith v. Guilford Bd. of Educ.,
D. State Law Claims
In addition to the federal claims previously addressed, Manolov asserts two state law claims against BMCC. Specifically, Manolov seeks damages for breach of contract and negligent supervision: A federal court may exercise supplemental jurisdiction over state law claims when a federal claim vests the court with subject matter jurisdiction and the state and federal claims “derive from a common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs,
There is- no reason for the Court to depart from the .usual rule in this case. To date, there has been no pretrial discovery, nor have there been any conferences with the Court. Indeed, the only events that have taken place are the filing of the parties’ motions. As BMCC’s motion shows, there is no basis for Manolov to prosecute any federal claims in this Court. Accordingly, because the Court has not invested any appreciable time in this case, it should exercise its discretion by dismissing without prejudice Manolov’s state law claims.
III. Conclusion
For the reasons set forth above, BMCC’s motion to dismiss (ECF No. 14) should be granted, and Manolov’s boilerplate motion in opposition to BMCC’s motion (ECF No. 18) should be denied.
Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels and to the chambers of the undersigned at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Daniels. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn,
Notes
. In any event, even if Plaintiff adequately had pleaded discrimination, his apparent failure to notify BMCC officials of the alleged discrimination would be fatal to this Title VI and Title IX claims. See Goonewardena v. New York,
. Plaintiffs allegations also fail because he has not demonstrated or even alleged that there was a "direct causal link between [Defendant’s] municipal policy or custom and the alleged constitutional deprivation.” Monell v. Dep’t of Social Servs.,
. In its initial papers, BMCC incorrectly assumes that Manolov’s last name is "Manolou” based upon its counsel’s reading of Manolov's handwritten complaint. (ECF No. 2 ("Complaint” or "Compl.”)). Manolov’s subsequent typewritten submission makes it clear that this is a mistake.
. Curiously, Manolov also says that his prior average was only 75.5 and that the "requirement to stay in the program [was] 73.” (Id.). Manolov may have been referring to his average for the semester.
. In addition to his Opp. Mem., Manolov filed a notice of motion for an order denying BMCC's motion to dismiss. (ECF No. 18). That filing is redundant since the only material submitted in support of the motion is Manolov's memorandum in opposition to BMCC’s motion.
. Even if Manalov's pleadings sufficiently alleged that BMCC officials were on notice of the alleged discrimination, any claim that the College failed to address these issues is belied by Manolov’s own Complaint. Although Manolov alleges that Professor Boyle repeatedly dropped him from the nursing program during the spring 2012 semester, he also notes tbat he "had to see the head of the Nursing Department to get back [in]to the program.” (Attach, at' 3). He therefore acknowledges that the College responded to his complaints, to the extent it considered them valid, by ensuring that he was permitted to re-enroll in the nursing program.
. I note that there also is no basis for the Court to retain jurisdiction under 28 U.S.C. § 1332. Although Manolov asserts that the amount in controversy is above the $75,000 threshold, his Complaint establishes that the parties are not diverse. Manolov is a resident