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Wije v. United States

United States District Court, W.D. Texas, Austin Division

August 14, 2019

SURAN WIJE, Plaintiff
v.
UNITED STATES OF AMERICA, Defendant

          HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          SUSAN HIGHTOWER UNITED STATES MAGISTRATE JUDGE

         Before 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 (“Local Rules”).

         I. GENERAL BACKGROUND

         On 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.

         In 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. Id.

         Plaintiff's 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).

         In 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.

         After 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.

         II. MOTION FOR IN FORMA PAUPERIS

         After 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).

         As 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.

         III. SECTION 1915(e)(2) FRIVOLOUSNESS REVIEW

         A. ...


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