The opinion of the court was delivered by: Richard W. Roberts United States District Judge
Plaintiff Samuel H. Mwabira-Simera filed a pro se discrimination complaint against Howard University and three individuals, Patrick Swygert, former President of the University, Orlando Taylor, dean of the University's graduate school, and Errol Noel, professor and chair of the University's department of civil engineering and also Mwabira-Simera's academic program advisor. The University has moved post-discovery for summary judgment. Because there are no material facts in dispute and the University is entitled to judgment as a matter of law, the University's motion will be granted, and all other pending motions will be denied as moot.
Mwabira-Simera, a Ugandan male who was a torture victim in Uganda and suffers from related post-traumatic stress disorder ("PTSD"), matriculated in the University's civil engineering program for one semester in Spring 1997, and then again for four semesters from Spring 2000 through Fall 2001. Defs.' Mot. for Summ. J. ("Defs.' Mot."), Defs.' Stmt. of Material Undisputed Facts ("SMUF") ¶¶ 4-5. In January 2002, Taylor, in his role as dean of the graduate school, sent a letter dismissing Mwabira-Simera for poor academic performance. Id., Ex. 24, Decl. of Orlando L. Taylor (Aug. 17, 2007) ("Taylor Decl.") ¶ 15 & Ex. B. MwabiraSimera contends he was dismissed as a result of unlawful discrimination. Specifically, he alleges national origin and disability discrimination, a hostile environment, and retaliation, and he asserts claims under Titles VI and VII*fn1 of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d et seq. and 2000e et seq., Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. See Am. Compl. ¶¶ 11-45. In addition, the amended complaint mentions in passing § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and purports to assert claims under the Administrative Procedure Act ("APA"), 5 U.S.C. §701 et seq., and the Due Process Clause of the Fifth Amendment. See Am. Compl.¶ 49. It also asserts an "abuse of process" claim, but is unclear whether this is intended as part of the constitutional claim or as an independent common law claim. See id. ¶¶ 46-48. In an abundance of caution, it will be analyzed as both. MwabiraSimera seeks $5 million in compensatory damages and $15 million in punitive damages. Id. at 20-21.*fn2
Despite the lengthy submissions on record, the material facts are relatively few and not in genuine dispute. The University's graduate school has published rules and regulations, one of which mandates that a student be dropped from a course of study when he or she receives more than nine credit hours of grades C or below. Defs.' Mot., SMUF ¶ 6-7 & Ex. 1 at 11. It also provides that a program's "graduate faculty can recommend the dismissal of a student who demonstrates an inability to perform satisfactorily at the graduate level. Id. In a total of four semesters of course work, Mwabira-Simera earned five C's and one D, but some of the grades were awarded late because he did not complete and submit the work during the course term. Id., SMUF ¶¶ 21-30, 36-40 (earning one C for a course taken in Spring 1997, two C's and one D for courses taken in Fall 2000, and two C's for courses taken in Spring 2001). Mwabira-Simera proposed a thesis project that his academic advisor, Noel, disapproved as not within the sphere of either the advisor's expertise or the student's course of study, flawed in its design and not advisable in light of the student's preparation in mathematics. Id., SMUF¶¶ 44-47. After Mwabira-Simera informed the associate dean of the graduate school that he had asked a junior faculty member from a different university to chair his thesis committee on the disapproved thesis project, the associate dean asked the graduate faculty of the civil engineering department to make a recommendation on how to proceed with Mwabira-Simera's matriculation in the program. Id., SMUF¶¶ 67-71. On November 19, 2001, the civil engineering program graduate faculty committee recommended that Mwabira-Simera be dismissed due to his "sustained unsatisfactory academic performance" and his unwillingness to follow the advice of his academic program advisor. Id., SMUF¶¶ 72-73. Taylor, after reviewing the record and concurring with the graduate faculty's recommendation, notified Mwabira-Simera by letter dated January 25, 2002, that he was no longer eligible to pursue his course of study in the civil engineering graduate program. Id., SMUF¶¶ 79, 81-84. In its entirety, that letter stated
This is to inform you that a review of your academic record revealed during your tenure in the Graduate School you have accumulated an excess of five (5) grades below B. The Graduate School regulation states that:
"A student will be dropped when he or she receives more than nine (9) hours of "C" or a "C" grade in more than two (2) courses where at least one of the courses is for four (4) or more credits and where the total credit hours of "C" is greater than nine (9) hours." (See The Graduate School of Arts and Sciences, Rules and Regulations for the Pursuit of Academic Degrees, Section 2. Grades and Academic Status.) Therefore, in keeping with Graduate School Regulations, I am writing to inform you that you are no longer eligible to pursue further study in the Graduate School.
I wish you success in your future endeavors.
Id., Taylor Decl. ¶ 15 & Ex. B. The notification letter was sent certified mail return receipt requested, and was received and signed for by him on or before February 5, 2002. Id., Taylor Decl. ¶ 16 & Ex. C.
Although it is undisputed that Mwabira-Simera appealed his dismissal through the University's grievance system and sought readmission to the graduate program, there is no evidence in the record that Mwabira-Simera filed an administrative claim of discrimination with either the U.S. Equal Employment Opportunity Commission ("EEOC") or the District of Columbia's Office of Human Rights ("DCOHR") as a result of the University's action. On February 4, 2005, the clerk of court received the plaintiff's pro se complaint for filing.
Where a defendant challenges an asserted claim because it fails to state a claim upon which relief may be granted, and matters outside the pleadings have been presented to and not excluded by the court, the motion is treated as one for summary judgment. See Fed. R. Civ. P. 12(d). A motion for summary judgment must be granted if the pleadings and evidence on file show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). In considering whether there is a triable issue of fact, a court must draw all reasonable inferences in favor of the non-moving party. Liberty Lobby, 477 U.S.at 255. The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must... set out specific facts showing a genuine issue for trial[,]" Fed. R. Civ. P. 56(e)(2), that would permit a reasonable jury to find in his favor. Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). The non-moving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.1992).
As an initial matter, several of the claims asserted must be dismissed because they are patently inapplicable on the facts presented and therefore fail to state a claim upon which relief may be granted. Neither the University, which is a private educational institution, nor any of the individual defendants are subject to suit under the APA, Title II of the ADA, or the Due Process Clause of the Fifth Amendment. The APA applies only to agencies of the federal government. See 5 U.S.C. §§ 701(b)(1) ("'agency' means each authority of the Government of the United States,") and 704 (providing for judicial review of "final agency action"). Title II of the ADA applies only to "public entities," which is expressly defined to include only "(A) any state or local government; (B) any department, agency, or special-purpose district, or other instrumentality of the state or states or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority [as defined elsewhere]." 42 U.S.C. § 12131. The Fifth Amendment's Due Process Clause applies only to the actions of agents of the federal government (and the Fourteenth Amendment's Due Process Clause applies only to the actions of agents of state governments and municipalities). Accordingly, as the defendants in this suit are not proper defendants, the claims asserted under the APA, Title II of the ADA and the Due Process Clause, including any intended allegation of a constitutional abuse of process, must be dismissed because they fail to state a claim upon which relief may be granted.
A common law claim for abuse of process is also inapplicable in this case. Such a claim arises when one party has misused or perverted the court system against another. Geier v. Jordan, 107 A.2d 440, 441 (D.C. 1954) (distinguishing the tort of abuse of process from the tort of malicious prosecution). Here, the defendants did not invoke the court system at all in their dealings with Mwabira-Simera, let alone pervert it. ...