United States District Court, W.D. Texas, Austin Division
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES
HIGHTOWER UNITED STATES MAGISTRATE JUDGE
this Court are Suran Wije's (“Plaintiff”)
Application to Proceed in District Court Without Prepaying
Fees or Costs (Dkt. No. 2) and Plaintiff's First Amended
Complaint (Dkt. No. 4). On August 7, 2019, the District Court
referred this case to the undersigned Magistrate Judge for
disposition and Report and Recommendation pursuant to 28
U.S.C. § 636(b), Federal Rule of Civil Procedure 72, and
Rule 1 of Appendix C of the Local Rules of the United States
District Court for the Western District of Texas
September 4, 2014, Plaintiff, who is male and of South Asian
descent, filed a lawsuit in the Sherman Division of the
Eastern District of Texas against Texas Woman's
University (“TWU”), the United States Department
of Education (“USDE”), and several other TWU
employees complaining of sex and race discrimination he
allegedly experienced while he was a student at TW U.See Wije
v. Texas Woman's University, 4:14-CV-571-ALM (E.D. Tex.
Sept. 4, 2014). Plaintiff's lawsuit arose out of his
dissatisfaction with the grade of “B” he received
on his final examination in “Psychology of Women,
” a graduate level course he took at TWU in the spring
of 2011. See Id. at Dkt. No. 94 at p. 2. Plaintiff
complains that after the examination was administered, his
professor, Dr. Linda Rubin, Ph.D., changed the grading
criteria to favor her preferred students based on race and
sex. Id. Plaintiff subsequently appealed his grade
through TWU's grade appeal process, but his appeal was
denied. Id. Plaintiff further complains that TWU
discriminated and retaliated against him by denying his
appeal. Id. at p. 3. Plaintiff also complains that
Dr. Rubin had a discriminatory attendance policy. Plaintiff
further argues that TWU discriminated against him by denying
him admission to TWU's Women's Studies graduate
program, claiming that he had completed all the prerequisites
for the graduate program. Id.
addition to suing TWU and several TWU employees in the
Eastern District, Plaintiff also sued the USDE after the
USDE's Office for Civil Rights denied an administrative
complaint he filed against TWU based on the above
allegations. Id. The USDE dismissed Plaintiff's
administrative complaint after finding that there was
insufficient evidence to show any discrimination.
Eastern District lawsuit alleged numerous claims, including
negligence, fraud, race and gender discrimination and
retaliation under Title IX and Title VII of the Civil Rights
Act, various constitutional claims, and claims under the
False Claims Act, Administrative Procedure Act, and the
Federal Tort Claims Act (“FTCA”). The District
Court dismissed Plaintiff's FTCA claim against the USDE
based on sovereign immunity and the fact that he had sued the
wrong party. See Dkt. No. 94 at p. 16-17.
Ultimately, the District Court dismissed all of
Plaintiff's claims based on sovereign immunity, qualified
immunity, standing, and failure to state a claim. See
Id. at Dkt. Nos. 99, 105, 110. Plaintiff appealed, and
the Fifth Circuit affirmed the District Court's rulings.
See Wije v. Texas Woman's University, 694
Fed.Appx. 234 (5th Cir. July 21, 2017), cert.
denied, 138 S.Ct. 515 (2017).
addition to filing the Eastern District lawsuit, on July 19,
2015, Plaintiff filed another administrative claim with the
USDE under the FTCA seeking money damages against the United
States in the amount of $3, 650, 000. Dkt. No. 4 at p. 1.
Plaintiff's administrative claim alleged the United
States was liable under the FTCA because the USDE and Office
of Inspector General (1) negligently investigated his
administrative claim against TWU alleging discrimination, (2)
denied him his due process rights and right to be free from
abuse of process, and (3) violated his constitutional rights
under the Fifth Amendment, Fourteenth Amendment, the Commerce
Clause and the Takings Clause. Id. On December 27,
2018, the USDE denied his claim, finding that his claims were
barred under the FTCA and that his allegations failed to show
any violation of the statute. Id.
Plaintiff received his notice from the USDE denying his
claim, he filed the instant lawsuit against the United States
under the FTCA. In this case, Plaintiff alleges that
“the Court has jurisdiction over this lawsuit against
the United States for damages and property loss due to the
negligence of governmental employees during their scope of
employment.” Dkt. No. 4 at p. 1. Plaintiff alleges that
the USDE violated its mission “to promote student
achievement and preparation for global competitiveness by
fostering educational excellence and ensuring equal
access” by failing to properly investigate his
complaints against TWU based on sex and race discrimination.
Id. at p. 2-3. Plaintiff claims that he was not
awarded a master's degree due to USDE's
“deliberate indifference.” Id. at p. 12.
Plaintiff seeks more than $3 million in damages, “the
forgiveness of his approximately $139, 000 in student loan
debt, ” and “the immediate enforcement of
anti-discrimination and ant-retaliation laws.”
Id. at p. 11. Plaintiff seeks leave of Court to file
this lawsuit without paying the filing fee in this case.
MOTION FOR IN FORMA PAUPERIS
reviewing Petitioner's Application to Proceed in District
Court Without Prepaying Fees or Costs and financial affidavit
in support, the Court finds that he is indigent. Accordingly,
the Court HEREBY GRANTS Plaintiff in
forma pauperis status and ORDERS his
Complaint to be filed without pre-payment of fees or costs or
giving security therefor pursuant to 28 U.S.C. §
1915(a)(1). This indigent status is granted subject to a
later determination that the action should be dismissed if
the allegation of poverty is untrue or the action is found
frivolous or malicious pursuant to 28 U.S.C. § 1915(e).
Plaintiff is further advised that although he has been
granted leave to proceed in forma pauperis, a Court
may, in its discretion, impose costs of court at the
conclusion of this lawsuit, as in other cases. Moore v.
McDonald, 30 F.3d 616, 621 (5th Cir. 1994).
stated below, this Court has conducted a § 1915(e)
review of the claims made in the Complaint and is
recommending that Plaintiff's claims should be dismissed
under 28 U.S.C. § 1915(e). Therefore, service on the
Defendants should be withheld pending the District
Court's review of the recommendations made in this
report. If the District Court declines to adopt the
recommendations, then service should be issued at that time
on the Defendants.
SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW