Opinion
CIVIL ACTION NO: 04-112, SECTION: "R"
March 22, 2004
ORDER AND REASONS
Before the Court is defendant's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction in this case, Civil Action No. 04-112. For the following reasons, the Court grants defendant's motion and dismisses plaintiff's complaint.
Plaintiff's complaint in this case is the same complaint that she filed in Civil Action No, 03-2936, except that the new complaint alleges a Fifth Amendment due process violation and asserts claims based on 28 U.S.C. § 1331 and 1343. The previous complaint alleged jurisdiction under Sections 1331 and 1343, but the new complaint now alleges a violation of these statutes. The Court dismissed plaintiff's previous complaint for lack of subject matter jurisdiction. The Court found that plaintiff failed to allege facts to support a claim under federal law. After the Court dismissed plaintiff's complaint, she moved to amend her complaint to allege a Fifth Amendment due process violation. On January 30, 2004, the Court considered her motion under Federal Rule of Civil Procedure 60(b) and denied her motion because plaintiff failed to establish any of Rule 60(b)'s grounds for relief. The Court further found that even if it were to consider plaintiff's motion for leave to amend, it would deny her motion because the "complaint alleges no federal action to implicate the due process clause of the Fifth Amendment." The Court dismissed plaintiff's original complaint for lack of subject: matter jurisdiction, and because plaintiff's proposed amended complaint would still fail to establish federal jurisdiction, the Court concluded that the amendment would be fufile.
The Court had consolidated the previous action, Civil Action No. 03-2936, with related Civil Action No. 03-2199.
Civ. Act. No. 03-2199, Rec. Doc. 34, at p. 6.
Defendant now moves to dismiss plaintiff's latest complaint for lack of subject matter jurisdiction under Federal Rule of Evidence 12(b)(1). When a party files suit for relief under the Constitution or a federal statute, a federal district court may dismiss the suit for lack of subject matter jurisdiction if it finds Ml) that the federal claim is immaterial and made solely for the purpose of obtaining jurisdiction, or (2) that the federal claim is wholly insubstantial and frivolous." Fellows v. Universal Restaurants, Inc., 701 F.2d 447, 449 (5th Cir. 1983); cf. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 860 (affirming the district court's dismissal for lack of subject matter jurisdiction because, although plaintiffs alleged violations of federal securities laws and the Civil Rights Act, plaintiffs' complaint failed to allege claims based on "securities" within the purview of federal securities laws and contained only conclusory allegation under the Civil Rights Act). A federal claim may be insubstantial either Ml) because it is obviously without merit, or (2) because it is clearly foreclosed by previous decisions of the Supreme Court." Id. (citing Miller v. Stanmore, 636 F.2d 986, 989 (5th Cir. 1981)).
Here, the Court dismisses plaintiff's complaint for lack of subject matter jurisdiction because it finds that plaintiff's federal claims are obviously without merit. The new complaint alleges jurisdiction under and violations of the Fifth Amendment and 28 U.S.C. § 1331 and 1343. Sections 1331 and 1343 are jurisdictional statutes and describe types of claims over which this Court has jurisdiction. Section 1331 states that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Although plaintiff's complaint mentions the Fifth Amendment, it does not allege any federal action. Consequently, plaintiff's claim under the Fifth Amendment is obviously without merit and fails to confer jurisdiction on this Court under Section 1331. Section 1343 states that
[t]he district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person . . . [t]o redress the deprivation; under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.
Plaintiff's complaint fails to allege any state action. Defendant in this matter is the Board of Trustees of Loyola University, a private institution. Courts have consistently found that private universities are not state actors. See, e.g., Alien v. Tulane Univ., 1993 WL 459949, at * 2 (E.D.La.) (noting that courts have quite consistently found no state action based on various degrees of governmental involvement in universities ranging from federal and state grants, student loan guarantees, tax exemptions, licensing of university owned television and radio stations, etc., and citing cases); see also Blouin v. Loyola Univ., 506 F.2d 20, 22 (concluding that Loyola University was not a state actor); Jones v. MacInnes, 1997 WL 795696, at *2 (E.D.La.) (dismissing student's 42 U.S.C. § 1983 claims against Tulane University, a private university, due to lack of requisite state action). Because plaintiff fails to allege any state action, plaintiff fails to state a claim over which the Court might have jurisdiction under Section 1343.
Plaintiff's complaint in Civil Action No. 03-2936 alleged the same facts and alleged the same bases for jurisdiction. In that case, the Court found that the complaint failed to state a federal cause of action. In light of the Court's previous ruling, the Court considers the complaint in this case to be frivolous. The Court cautions plaintiff against filing any further complaints based on these same allegations. Any further frivolous filing by this plaintiff will warrant sanctions by this Court.
For the foregoing reasons, the Court grants defendant's motion to dismiss and dismisses plaintiff's complaint with prejudice.