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Albra v. Board of Trustees of Miami Dade College

United States District Court, District of Columbia

February 15, 2018

ADEM ALBRA, Plaintiff,
v.
BOARD OF TRUSTEES OF MIAMI DADE COLLEGE et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL CHIEF JUDGE.

         The pro se plaintiff, Adem Albra, is a Florida resident, who was a nursing student at Miami Dade College (“MDC”) until June 12, 2015, when he “was permanently expelled[.]” Compl. ¶ 27. The plaintiff has sued MDC's Board of Trustees and the United States Department of Education (“DOE”) under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706.[1]Pending are MDC's Motion to Dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(3) and 12(b)(6), and Local Civil Rule 7, ECF No. 23; the Federal Defendants' Motion to Dismiss, pursuant to Rules 12(b)(1) and 12(b)(6), ECF No. 41; and the Plaintiff's Motion to Supplement the Complaint against MDC, ECF No. 27. For the reasons explained below, both motions to dismiss are granted and, the plaintiff's motion to supplement is denied, and this case dismissed.

         I. BACKGROUND

         In a Notice Regarding Local Civil Rule 7(n), ECF No. 42, the federal defendants state that they were unable to file a certified list of the contents of an administrative record, as required in APA cases, because “the Complaint fails to identify an agency decision subject to review” under 5 U.S.C. § 706(2). The agency action forming the basis of this action consists of a January 13, 2016 Letter of Resolution prepared by DOE's Office for Civil Rights (“OCR”), ECF No. 47, and an accompanying Resolution Agreement between OCR and MDC, ECF No. 47-1. See Compl. ¶¶ 8, 28-31. The OCR's actions underlying the plaintiff's claims are set out below, followed by a summary of the plaintiff's claims.

         A. OCR's Action

         OCR's Letter of Resolution (“Res. Ltr.”) establishes that the plaintiff was charged in June 2015 with multiple violations of MDC's code of conduct based on complaints by six female students. The alleged conduct occurred two days into a course, in which the Plaintiff was enrolled along with his accusers. The plaintiff was placed on temporary suspension pending a disciplinary hearing. Following the hearing held on June 22, 2015, the Campus Discipline Committee unanimously found the plaintiff guilty of three of four charges - Defamation, Threats, Extortion; Disruption; and Academic and Speech Freedom - and recommended the plaintiff's expulsion. The plaintiff appealed the decision to the Campus President, who on July 1, 2015, affirmed the Committee's decision and proposed sanction.

         The plaintiff filed an administrative complaint with OCR, alleging that MDC (1) discriminated against him on the basis of his disability when he was expelled, and (2) retaliated against him because of his prior complaints to OCR when it failed to investigate his complaint of discrimination based on sexual orientation.[2]

         Following an investigation, OCR determined with regard to the discrimination claim that MDC had violated Section 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act by failing to conduct an individualized threat assessment before expelling the plaintiff for threatening conduct.[3] OCR further determined that MDC's direct threat procedures were not in compliance with Section 504 and Title II, and also raised concerns about the handling of the plaintiff's retaliation claim. See Res. Ltr. at 6-9.

         As part of the Resolution Agreement, MDC agreed “to review and revise its policies and procedures . . . for direct threat assessment, as they relate to students with disabilities” by March 7, 2016, and to provide a copy of the revised policy to OCR for review and approval by April 11, 2016. Agreement at 1. In addition, MDC agreed (1) to notify the plaintiff by March 7, 2016, of its decision to rescind his expulsion and suspension “pending a review under the approved direct threat policies and procedures to make a determination as to whether [the plaintiff] poses a direct threat that cannot be mitigated with reasonable accommodations, ” and (2) to provide OCR documentation of its completed threat assessment by May 1, 2016. Id. at 3. Finally, MDC agreed to send by February 1, 2016, “a certified written letter referring [the plaintiff] to the OEOP and offering to investigate his complaint of gay discrimination in June 2015 upon his completion of the Complaint Discrimination Form, ” and to provide a copy of the letter to the plaintiff by March 1, 2016. Id. The Agreement included an acknowledgment by MDC that OCR could initiate “administrative enforcement or judicial proceedings to enforce the specific terms and obligations[.]” Id.

         On September 11, 2017, the federal defendants informed this Court that OCR completed its review of MDC's direct threat assessment of the plaintiff and notified MDC on September 6, 2017, that it had “complied with that aspect of the Resolution Agreement.” Not. of Suggestion of Mootness in Part at 1, ECF No. 53. “OCR continues to monitor the College's compliance with other aspects” of the agreement. Id. n.2. The plaintiff responded incredulously, noting: “Just because the Defendants claim that the College is in compliance does not it [sic] so, even as it pertains to their manuals, policies or procedures.” Pl.'s Resp. at 1, ECF No. 54.

         B. The Plaintiff's Claims

         In the four-count Complaint filed in March 2017, the plaintiff states: “Approaching two years, and Plaintiff has not yet returned to College due to action unlawfully withheld and/or unreasonabl[y] delayed by the OCR.” Compl. ¶ 51. In Count I, the plaintiff seeks to “[c]ompel unlawfully withheld or unreasonably delayed” action, citing 5 U.S.C. § 706(1).[4] Count II alleges that OCR's actions were “[a]rbitrary, capricious, an abuse of discretion, not in accordance with law” and its “own Case Processing Manual, ” citing 5 U.S.C. § 706(2)(A); Count III alleges that OCR's actions were “[c]ontrary to constitutional right, power, privilege, or immunity, citing 5 U.S.C. § 706(2)(B); and Count IV alleges that OCR acted “[w]ithout observance of procedure required by law, ” citing 5 U.S.C. § 706(2)(D). Compl. at 14, 15, 16. In his Prayer for Relief, the plaintiff seeks declaratory and injunctive relief. Compl. ¶ 62.[5]

         II. APPLICABLE LEGAL STANDARDS

         A. Federal Rule of Civil ...


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