Opinion
NO. 1:02-CV-322
August 27, 2002
Devendra Prakash Babulal Bansal of Mumbai India (pro se), For Plaintiffs
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This action is assigned to Hon. Richard A. Schell, United States district judge for the eastern district of Texas, who, by an order of reference dated May 21, 2002, (Docket No. 3), referred certain pretrial matters to the undersigned.
Referral of pretrial case management to United States magistrate judges is authorized by 28 U.S.C. § 636(b)(1)(A) and E.D. Tex. R. app. B (Rule 1(D)(1)). Generally, such references contemplate that magistrate judges shall rule on all pretrial matters that Congress authorizes magistrate judges to hear and determine. For all other pretrial motions, the reference contemplates that magistrate judges will conduct hearings, if necessary, and submit written reports containing proposed findings of fact, conclusions of law, and recommendations for disposition. Unless all parties consent to trial before a magistrate judge, trial and entry of final judgment will be handled by the district judge to whom the case is assigned.
This case involves a complaint submitted pro se and in forma pauperis. The undersigned has conducted initial screening of plaintiff's amended complaint in accordance with Congress's mandate regarding such actions, and now recommends sua sponte dismissal of plaintiff's claims because (a) this court lacks subject-matter jurisdiction of plaintiff's cause of action under Title VII of the Civil Rights Act of 1964, (b) plaintiff's remaining federal law claims are barred by limitations, and (c) appropriate conditions for exercising supplemental jurisdiction over plaintiff's state law claim of defamation do not exist.
When authorizing and establishing standards for in forma pauperis actions, Congress encouraged federal courts to conduct initial screening of plaintiffs' allegations. Congress instructed federal trial and appellate courts to dismiss such cases without a trial whenever they might determine either that a plaintiff's allegation of poverty is untrue, or that the action (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2).
I. Parties
Plaintiff, Devendra Prakash Babulal Bansal ("Bansal"), is a citizen of India. He formerly resided in the United States, within the jurisdiction of this court. While here, he was charged and convicted of harassment in violation of Texas law. After serving a six-month sentence, he was transferred to Immigration and Naturalization Service detention and then deported to India, where he currently resides.
Plaintiff is no stranger to pro se litigation or this court. He has instituted four other actions in this district. Although he appears pro se and in forma pauperis, and is prevented from re-entering the United States without receiving the express permission of the Attorney General of the United States, plaintiff proposes to litigate electronically by filing documents and pleadings through facsimile and electronic mail.
Bansal v. Orange County, et al., No. 1:98-CV-2004 (E.D.Tex. filed Nov. 25, 1998); Bansal v. Orange County Mayor, et al., No. 1:98-CV-2005 (E.D.Tex. filed Nov. 25, 1998); Bansal v. Warden, et al., No. 1:00-CV-307 (E.D.Tex. filed May 4, 2000); and Bansal v. State of Texas, et al., No. 1:00-CV-641 (E.D.Tex. Sept. 20, 2000).
8 U.S.C. § 1326. Under § 1326 a previously deported individual must get consent to reapply for admission. Consent for reapplication of admission after deportation is done pursuant to 8 C.F.R. § 212.2 (2002).
Plaintiff sues several entities and individuals — many unnamed — in their official and individual capacities: (1) Lamar University, Beaumont, Texas, (2) Acting President, Lamar University, Beaumont, Texas, for the years 1997-2002, (3) Acting Student Affairs Vice-President, Lamar University, Beaumont, Texas, for the years 1997-2002, (4) Acting Executive Vice-President for Academic Affairs, Lamar University, Beaumont, Texas, for the years 1997-2002, (5) Acting Associate Vice-President for Academic Affairs, Lamar University, Beaumont, Texas, for the years 1997-2002, (6) Acting Housing Director, Lamar University, Beaumont, Texas, for the years 1997-2002, (7) Acting Coordinator-International Student Services, Lamar University, Beaumont, Texas, for the years 1997-2002, (8) Lamar University Police Chief D. Fontenont, (9) Detective Daniel Bowden, Lamar University, Beaumont, Texas, (10) Officer Shiflet, Lamar University, Beaumont, Texas, (11) Officer (Dispatcher) Sherry Oaks, Lamar University, Beaumont, Texas, (12) The Dean of Graduate School for the years 1997-2002, (13) The Texas State University System, (14) All the Regents for the years 1997-2002, (15) Chancellor for the years 1997-2002, (16) General Counsel for the years 1997-2002, (17) Vice-Chancellor for the years 1997-2002, (18) Jefferson County, Texas, (19) Sheriff of Jefferson County, Texas, for the years 1997-2002.
II. Nature of the Suit
Bansal alleges that he was a computer science masters' degree student and teaching assistant at Lamar University, Beaumont, Texas, in 1997. Bansal alleges claims of unlawful discrimination in education and employment, violations of his civil rights on the basis of his race, color, nationality and status as an alien, and defamation by the above named defendants. Bansal contends the defendants thereby violated the United States constitution and laws, and state common law.
III. Jurisdictional Grounds for Suit
Bansal alleges the following United States Constitution Amendments and United States statutes provide jurisdiction for this action:
(1) United States Constitution Amendments I, IV, V, VIII, XIII and XIV;
(2) Title 18, United States Code, Sections 241, 242, 245 and 3231;
(3) Title 28, United States Code, Sections 1331, 1332, 1343, 1350, 1361 and 1367;
(4) Title 42, United States Code, Sections 1981, 1982, 1983, 1985, 1986 and 1988;
(5) Titles IV, VI and VII of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000c et seq., 2000d et seq. and 2000e et seq., respectively); and
(6) Equal Educational Opportunities Act of 1974 ( 20 U.S.C. § 1701 et seq.).
IV. Factual Background
Bansal's complaint is rambling, disjointed, repetitive and conclusory. Despite consuming 102 pages, it provides remarkably little in the nature of specific facts. Nevertheless, one can glean that Bansal was a computer science masters' degree student and teaching assistant at Lamar University, Beaumont, Texas, in 1997. A group identified in the complaint as the Claybar family and their friends telephonically harassed Bansal and also damaged his property. Bansal repeatedly complained to the City of Beaumont and Lamar University Police, and eventually managed to have charges filed against two members of the Claybar family.Bansal alleges that Lamar University officials then attempted to protect the Claybars, and threatened Bansal that if he did not drop charges, Lamar University would suspend Bansal and work to get Bansal deported. Bansal contends he acquiesced, and charges against the Claybars were dismissed.
Subsequently, criminal charges alleging harassment were brought against Bansal. He was suspended from school in March 1997, without a hearing. Bansal alleges the charges filed against him were brought for his calling the Lamar University Police for non-police business, harassing Police Dispatcher Sherry Oaks and complaining to the President of Lamar University regarding Lamar University Police conduct. Bansal contends that during his arrest on March 20, 1997, he was assaulted and battered by the Lamar University Police Chief and Detective Daniel Bowden.
Bansal believes this action was taken in retaliation for his having filed charges against the Claybars. In addition, the Claybars resumed their harassment of Bansal. Lamar University was aware of their harassment, but did not intervene to stop it. Bansal attempted to contact various Lamar University officials, whom he claims to have personally known, to resolve the criminal charges pending against him, as well as his academic suspension. However, Bansal's efforts were to no avail.
Bansal concludes that all defendants conspired against him so that he would be convicted of a crime, thrown out of university and then deported without any hearing because of Bansal's race, color and status as an alien. Bansal alleges he was held in prison on an Immigration and Naturalization Service (I.N.S.) hold from March 20, 1997 until May 17, 2001; after which, Bansal was deported. Furthermore, Bansal was defamed when Lamar University labeled him as dangerous when Bansal did nothing more than exercise his Constitutional rights to Due Process.
V. Discussion
A defendant's immunity from suit is a threshold issue that courts usually address at the outset of a case. Eleventh Amendment immunity may protect the two state agency defendants, Lamar University of Beaumont and the Texas State University System, as well as the individual defendants in their official capacities. In this case, however, it is simpler and more expedient to address other threshold issues — subject matter jurisdiction and limitations — rather than immunity on a defendant-by-defendant basis.
A. Subject-Matter Jurisdiction and Plaintiff's Title VII Claim
Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin and also authorizes private suits to remedy violations. However, for this court to have subject-matter jurisdiction to entertain such an action, Bansal must have first exhausted administrative remedies by tendering a timely complaint to the Equal Employment Opportunity Commission ("EEOC"), and receiving notice of right to sue. Such action is a subject-matter jurisdictional prerequisite to a private cause of action to remedy race-based employment discrimination. Cutliff v. Greyhound Lines, Inc., 558 F.2d 803, 806 (5th Cir. 1977).
The term, "subject-matter jurisdiction," pertains to the court's authority over the category of the claim in suit. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 577, 119 S.Ct. 1563, 1566, 143 L.Ed.2d 760 (1999). Subject-matter jurisdiction must be established as a threshold matter, inflexibly and without exception. Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). No action of the parties can confer subject-matter jurisdiction upon a federal court. Similarly, a federal trial court not only may, but must raise lack of subject-matter jurisdiction on its own motion when the issue appears. Insurance Corp. of Ireland Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) (quoting Mansfield, C. L.M.R. Co. v. Swan, 111 U.S. 379, 382, 4 S.Ct. 510, 511, 28 L.Ed. 462 (1884)).
An administrative complaint must be submitted to the EEOC within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1).
Case law preponderates in favor of considering receipt of a notice of right to sue issued by the Equal Employment Opportunity Commission as a jurisdictional prerequisite to bringing suit in federal court. Barnes v. Levitt, 118 F.3d 404 (5th Cir. 1997); Carter v. South Central Bell, 912 F.2d 832 (5th Cir. 1990); see also Tang v. State of R.I., Dep't of Elderly Affairs, 163 F.3d 7 (1st Cir. 1998); Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683 (2nd Cir. 2001); Burgh v. Borough Council of Borough of Montrose, 251 F.3d 465 (3rd Cir. 2001); Stuart v. General Motors Corp., 217 F.3d 621 (8th Cir. 2000); Simms v. Oklahoma ex rel. Dep't of Mental Health and Substance Abuse Servs., 165 F.3d 1321 (10th Cir. 1999); Forehand v. Florida State Hosp. at Chattahoochee, 89 F.3d 1562 (11th Cir. 1996).
However, there exists some ambivalence within the Fifth Circuit and other circuits as to whether a notice of right to sue is merely a condition precedent to suit. See Vielma v. Eureka Co., 218 F.3d 458 (5th Cir. 2000) (citing to, but apparently mis-citing Carter v. South Central Bell, supra, stating Carter noted "right to sue letter is usually condition precedent"); Pinkard v. Pullman-Standard, A Div. of Pullman, Inc., 678 F.2d 1211 (5th Cir. 1982); Pietras v. Board of Fire Comm'rs of the Farmingville Fire Dist., 180 F.3d 468 (2nd Cir. 1999); Rivers v. Barberton Bd. of Educ., 143 F.3d 1029 (6th Cir. 1998); Worth v. Tyer, 276 F.3d 249 (7th Cir. 2001).
The Supreme Court of the United States has not ruled on this issue. But whatever the correct view may be, the result in this case does not change. Whether the EEOC right to sue notice is a jurisdictional prerequisite or a condition precedent to suit, plaintiff cannot proceed without it.
In this case, Bansal does not allege that a timely complaint was filed with EEOC regarding matters now before the court, nor does he provide a right to sue notice issued by EEOC or any other similar evidence establishing that he exhausted administrative remedies for the instant action. As a result, Bansal has not exhausted administrative remedies and the court lacks subject-matter jurisdiction over his Title VII-based employment discrimination claim. For lack of jurisdiction, the Title VII claim must be dismissed.
B. Remaining Federal Law Claims and Limitations
Many of the statutes cited in Bansal's complaint do not give rise to a private cause of action. For example, Title 18, United States Code, Sections 241, 242, 245 and 3231 are criminal statutes that do not authorize private civil suits. Similarly, Title 28, United States Code, Sections 1331, 1332, 1343, 1350, 1361 and 1367, and Title 42, United States Code, Section 1988, are jurisdictional statutes that do not confer substantive federal rights enforceable in private civil litigation. However, Title 42, United States Code, Section 1983 provides a mechanism for enforcing rights guaranteed under the 1st, 4th, 5th, 8th, 13th and 14th Amendments to the United States Constitution, while Section 1988 of that title authorizes prevailing parties to recover attorney fees in certain actions. Moreover, other statutes relied on by Bansal do explicitly confer the right to bring a private cause of action.
Bansal asserts the alleged violations of his civil rights took place in 1997. The instant suit was not filed until May, 2002. Consequently, these remaining federal law claims under Title 42, United States Code, Sections 1981, 1982, 1983, 1985, 1986, Titles IV and VI of the Civil Rights Act of 1964 and the Equal Educational Opportunities Act of 1974 are barred by limitations unless the period in which filing suit is authorized exceeds at least four years.Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993) (holding that if clear from face of in forma pauperis complaint that claims are barred by applicable statute of limitations, claims are properly dismissed pursuant to 28 U.S.C. § 1915(d)).
"Limitations" is a legal term meaning a statutory period after which a lawsuit or prosecution cannot be brought in court. Black's Law Dictionary 939 (7th ed. 1999).
1. Applicable Limitations Periods
The only federal statute invoked by Bansal that provides for a private cause of action and further specifies an applicable limitations period is Title 42, United States Code, Section 1986. That statute provides for a one-year period within which to bring a cause of action. Therefore, any cause of action asserted by Bansal under Section 1986 is facially barred.
The remaining federal statutes authorizing private suits and invoked by Bansal do not provide for specific limitations periods. However, this does not suggest Congress did not intend for there to be a limitations period within which to file a cause of action. Rather, in such circumstances the limitations period is borrowed from the forum state's statute of limitations that is most closely analogous to the federal claim being raised. Board of Regents, Univ. of New York v. Tomanio, 446 U.S. 478, 488, 100 S.Ct. 1790, 1797, 64 L.Ed.2d 440 (1980). Federal law, however, determines the date a federal cause of action accrues.Burrell v. Newsome, 883 F.2d 416, 419 (5th Cir. 1989). Accrual begins when the plaintiff knows or has reason to know of the injury which is the basis of his action. Id.
Generally, private civil actions pursuant to federal civil rights statutes proscribing invidious discrimination are equated with personal injury claims. The limitations period for a general personal injury claim in Texas is two years. Tex. Civ. Prac. Rem. Code § 16.003(a) (Vernon 1986). Prior jurisprudence establishes that state statutes providing limitations periods for bringing general personal injury causes of action are applicable to suits under Title 42, United States Code, Sections 1981, 1982, 1983, 1985, and 2000c et seq. Therefore, any causes of action under these statutes also are facially barred under the Texas two-year statute of limitations for personal injury claims.
42 U.S.C. § 1981 — See Byers v. Dallas Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000).
42 U.S.C. § 1982 — See Scheerer v. Rose State College, 950 F.2d 661, 664 (10th Cir. 1991) cert. denied 505 U.S. 1205, 112 S.Ct. 2995, 120 L.Ed.2d 872 (1991); Wolf v. City of Chicago Heights, 828 F. Supp. 520, 522 (N.D.Ill. 1993).
42 U.S.C. § 1983 — See Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989); Ali v. Higgs, 892 F.2d 438, 439 (5th Cir. 1990); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir. 1993).
42 U.S.C. § 1985 — See McDougal v. County of Imperial, 942 F.2d 668, 673 (9th Cir. 1991); Wolf v. City of Chicago Heights, 828 F. Supp. 520, 522 (N.D.Ill. 1993).
Title VI of the Civil Rights Act of 1964 ( 42 U.S.C. § 2000d et seq.) — See Frazier v. Garrison I.S.D., 980 F.2d 1514, 1520-22 (5th Cir. 1993).
Plaintiffs remaining federal claims are under Title IV of the Civil Rights Act of 1964 ( 42 U.S.C § 2000c et seq.) and Equal Educational Opportunities Act of 1974 ( 20 U.S.C. § 1703). Research discloses no prior court decisions declaring the specific limitations period for private causes of action under these statutes. Yet, as both statutes redress personal injuries similar in nature to those redressed in Sections 1981, 1983, 1985 and 2000d, it is appropriate to borrow a similar limitations period as for them. Consequently, under the Texas two-year personal injury limitations statute, these remaining causes of action also would have to have been brought before the year 2000. They were not, and also are facially barred.
2. Equitable Tolling
Bansal seeks to excuse his tardiness in filing suit on the ground that during the time he remained in I.N.S. detention, he was not able to litigate his civil claims in a meaningful manner because he was threatened that should he file a civil action against defendants, he would be killed in jail. Bansal's excuse is conclusory, self-serving and unsupported with any factual detail. Thus, his argument that he should be excused from compliance with applicable limitations constraints is not persuasive on its face. Moreover, these are no other grounds supporting his contention. Imprisonment is not considered a legal disability.Burrell, 883 F.2d at 419. Finally, the court can take judicial notice that during the time Bansal was imprisoned, he brought four other separate cases (see footnote 3) in the eastern district of Texas and filed numerous pleadings and documents in those cases. If alleged threats did not deter him from prosecuting those cases, it is illogical and absurd to think that he was chilled in such a way as to not prosecute the claims asserted here.
C. State Law Defamation Claim and Supplemental Jurisdiction
Bansal's remaining cause of action — defamation — is not based on federal law. While federal trial courts ordinarily cannot entertain actions over which they do not have original, subject-matter jurisdiction, there is an exception called "supplemental jurisdiction." Title 28 United States Code § 1367 provides:
"[D]istrict courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution."28 U.S.C. § 1367(a). Section 1367 codified the judge-made doctrine of pendent and ancillary jurisdiction that began with United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966).
The Court held:
Pendent jurisdiction, in the sense of judicial power, exists whenever there is a claim 'arising under (the) Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . .,' U.S. Const., Art. III, § 2, and the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional 'case.' . . . The state and federal claims must derive from a common nucleus of operative fact. But if, considered without regard to their federal or state character, a plaintiff's claims are such that he would ordinarily be expected to try them all in one judicial proceeding, then, assuming substantiality of the federal issues, there is power in federal courts to hear the whole.Id.
Even when claims are so closely related to claims within the original jurisdiction that they can be viewed as forming part of the same case or controversy, federal district courts may elect to not entertain them. Thus, the statute expressly provides that district courts may decline to exercise supplemental jurisdiction under any of the following circumstances:
(1) The claim raises a novel or complex issue of state law;
(2) The claim substantially predominates over the claim or claims over which the court has original jurisdiction;
(3) The court has dismissed all claims for which it had original jurisdiction; or
(4) In exceptional circumstances, there are other compelling reasons for declining jurisdiction.28 U.S.C. § 1367(c).
In this circuit, the general rule is to decline to exercise supplemental jurisdiction when all federal claims are dismissed or eliminated prior to trial. Wong v. Stripling, 881 F.2d 200, 204 (5th Cir. 1989). However, this rule is neither mandatory nor absolute. Id. Rather, the Fifth Circuit reviews a district court's decision to decline supplemental jurisdiction for an abuse of discretion. Batiste v. Island Records, Inc., 179 F.3d 217, 226 (5th Cir. 1999); see also Robertson v. Neuromedical Center, 161 F.3d 292, 296 (5th Cir. 1998) ("[D]istrict court has wide discretion").
Since all federal claims must be dismissed, the court must decide whether to entertain the remaining state law claim under its supplemental jurisdiction. As stated above, the general rule in this circuit is to decline to exercise supplemental jurisdiction when all federal claims are dismissed or eliminated prior to trial. No exceptions to that general rule surface in this case. This case has not been pending for an extended amount of time. No depositions have been taken; no pretrial case management orders have been entered; and no trial date is imminent. Thus, deferring these claims to the appropriate state court will not impinge upon judicial economy, convenience, and fairness. In this respect, this case is akin to Carnegie-Mellon University v. Cohill, 484 U.S. 343, 351, 108 S.Ct. 614, 619, 98 L.Ed.2d 720 (1988). All federal-law claims will be eliminated at an early stage, a circumstance providing a "powerful reason to choose not to continue to exercise jurisdiction." Id.
Finally, Bansal will suffer no unfair prejudice if the court declines to exercise supplemental jurisdiction over his defamation claim. Texas law specifically provides that when an action is dismissed for want of jurisdiction of the federal district court in which it was filed originally, and, within a specified period after the dismissal, the plaintiff re-files the action in a Texas court of proper jurisdiction, the period between the date of first filing and that of commencement in the second court is not counted as a part of the period of limitations unless the opposite party shows in abatement that the first filing was in intentional disregard of proper jurisdiction. Tex. Civ. Prac. Rem. Code Ann. § 16.064 (Vernon 1997). Consequently, Bansal will remain free to commence a timely action in state court urging his federally-dismissed state law claims.
RECOMMENDATION
1. Plaintiff's federal law claim under Title VII of the Civil Rights Act of 1964 should be dismissed as this court lacks subject-matter jurisdiction;
2. Plaintiff's remaining federal law claims should be dismissed as barred by limitations; and
3. This court should decline to exercise supplemental jurisdiction over plaintiff's state law claim of defamation.
OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served and filed within ten days after being served with a copy of this report. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b), and 72(b).
A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge of proposed findings and recommendations, Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988), and (2) appellate review, except on grounds of plain error, of unobjected-to factual findings and legal conclusions accepted by the district court, Douglass v. United Servs. Auto. Ass'n., 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).